Victory Against Insurers Is Not Always Available
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Post 4835
Many people and their lawyers believe that suing an insurance company that denies a claim is a guaranteed multi-million dollar successful lawsuit. However, courts don’t believe in such a certainty and require the litigants to promptly file their suit and allege facts that they can prove that supports their claims.
In Azam Ahmed, individually and on behalf of all others similarly situated v. Cigna Health Management, Inc. et al., No. 23-cv-8094 (AS), United States District Court, S.D. New York (July 8, 2024) the USDC applied the rule of law instead of the hoped for certainty of always profiting from a suit against an insurer.
FACTS
Azam Ahmed claimed that Defendants Wellfleet Insurance, Wellfleet New York Insurance Company, and CIGNA Management, Inc. refused to cover medically necessary procedures in contravention of his health-insurance policy. Ahmed’s breach-of-contract and insurance-law claims came years too late, and his attempt to recharacterize his contract claim as one for fraud or unjust enrichment failed.
BACKGROUND
In August 2016, Azam Ahmed enrolled in New York University’s student health-insurance plan. The plan was issued by what is now Wellfleet New York Insurance Company and administered by what is now Wellfleet Insurance (together, “Wellfleet”).
Years earlier, Ahmed had been diagnosed with a congenital birth defect, resulting in skeletal abnormalities and symptoms like headaches and joint pain. He also suffered from facial asymmetry, as well as issues with chewing, articulation, breathing, and jaw locking.
In May 2017, Ahmed had surgery to address his symptoms. His preauthorization request was approved by Wellfleet via a third-party vendor that had been hired by Wellfleet to perform medical-necessity reviews. The surgery, though partially successful, did not fully resolve his symptoms, and seven months later, Ahmed’s surgeons determined that a second surgery was necessary to further remedy his skeletal deformity and ongoing pain and breathing problems. Ahmed sent a preauthorization request for the second surgery to Wellfleet, which was reviewed by CIGNA Management, Inc. (Cigna) who rejected the request.
Ahmed also alleged that Cigna was unjustly enriched by receiving from Wellfleet a portion of the insurance premiums paid by Ahmed while intentionally and systematically denying coverage of medically necessary services and procedures in contravention of the insurance contract under which he was due benefits. Ahmed also sought to represent a class of others whose preauthorization requests were denied.
Wellfleet and Cigna moved to dismiss.
DISCUSSION
Ahmed brings claims for breach of contract, violation of N.Y. Insurance Law § 4226, fraud, and unjust enrichment. But the first two claims come too late, and Ahmed’s factual allegations are a poor fit for the latter two.
Ahmed’s breach-of-contract and insurance-law claims are time-barred.
Ahmed sues Wellfleet for both breach of contract and violation of N.Y. Insurance law § 4226. Both claims are time-barred. Ahmed’s contract claim is time-barred because the policy imposes a three-year time limit, meaning that Ahmed brought it two years too late.
FRAUD CLAIMS
Just as with the contract claim, Ahmed fails to plausibly allege fraudulent concealment. He had Wellfleet’s reasons for the denial, and the policy that serves as the basis for his claim. More than three years have passed since all of that. So, like Ahmed’s contract claim, his § 4226 claim must be dismissed as untimely.
Ahmed’s Fraud Claims Must Be Dismissed.
A fraud claim will not lie if it arises out of the same facts as plaintiff’s breach of contract claim.
First, Ahmed fails to identify any duties that are “separate” from the duty of performance. Ahmed appears to argue that the “special facts” doctrine imposed a duty on Defendants to disclose their intention to breach the contract. But this argument fails for multiple reasons. To start, the doctrine usually applies in the context of business negotiations where parties are entering a contract.
Second, even if it does, Ahmed does not identify any fact that Defendants failed to disclose.
Ahmed’s Unjust-Enrichment Claim Must Be Dismissed.
Finally, Ahmed’s unjust enrichment claim against Cigna must also be dismissed. Cigna argues that this claim must be dismissed because, among other reasons, it concerns the subject matter of a valid and enforceable contract.
The existence of a contract precludes Ahmed’s unjust-enrichment claim.
Here, by contrast, the dispute derives from conduct “in contravention of the insurance contract by a party that was acting as a subcontractor to the counterparty to the contract. The dispute arises from the actual breach of contract that Cigna allegedly facilitated.
Ahmed’s fraud claim is defective because intention to breach is not the kind of fact required to be disclosed under the special facts doctrine. In addition, Ahmed fails to allege that he had any relationship with Cigna prior to the denials, making it unclear whether the special-facts doctrine even applies.
Ahmed initially brought this case thinking that Defendants used an algorithm to deny his preauthorization request. His claims are either untimely or are a poor fit for the doctrine he tries to cram them into. As such, Defendants’ motions to dismiss were granted with prejudice. Defendants’ motion to strike the class allegations was denied as moot.
ZALMA OPINION
Waiting more than three years to sue was fatal to almost all of Ahmed’s claims. His attempt to avoid the limitation of action by claiming fraud was imaginative but unsuccessful because none of the elements of the tort of fraud applied.
(c) 2024 Barry Zalma & ClaimSchool, Inc.
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Concealing a Weapon Used in a Murder is an Intentional & Criminal Act
Post 5002
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In Howard I. Rosenberg; Kimberly L. Rosenberg v. Chubb Indemnity Insurance Company Howard I. Rosenberg; Kimberly L. Rosenberg; Kimberly L. Rosenberg; Howard I. Rosenberg v. Hudson Insurance Company, No. 22-3275, United States Court of Appeals, Third Circuit (February 11, 2025) the Third Circuit resolved whether the insurers owed a defense for murder and acts performed to hide the fact of a murder and the murder weapon.
FACTUAL BACKGROUND
Adam Rosenberg and Christian Moore-Rouse befriended one another while they were students at the Community College of Allegheny County. On December 21, 2019, however, while at his parents’ house, Adam shot twenty-two-year-old Christian in the back of the head with a nine-millimeter Ruger SR9C handgun. Adam then dragged...
Renewal Notices Sent Electronically Are Legal, Approved by the State and Effective
Post 5000
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Washington state law allows insurers to deliver insurance notices and documents electronically if the party has affirmatively consented to that method of delivery and has not withdrawn the consent. The Plaintiffs argued that the terms and conditions statement was not “conspicuous” because it was hidden behind a hyperlink included in a single line of small text. The court found that the statement was sufficiently conspicuous as it was bolded and set off from the surrounding text in bright blue text.
In James Hughes et al. v. American Strategic Insurance Corp et al., No. 3:24-cv-05114-DGE, United States District Court (February 14, 2025) the USDC resolved the dispute.
The court’s reasoning focused on two main points:
1 whether the ...
Rescission in Michigan Requires Preprocurement Fraud
Post 4999
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Lie About Where Vehicle Was Garaged After Policy Inception Not Basis for Rescission
This appeal turns on whether fraud occurred in relation to an April 26, 2018 renewal contract for a policy of insurance under the no-fault act issued by plaintiff, Encompass Indemnity Company (“Encompass”).
In Samuel Tourkow, by David Tourkow v. Michael Thomas Fox, and Sweet Insurance Agency, formerly known as Verbiest Insurance Agency, Inc., Third-Party Defendant-Appellee. Encompass Indemnity Company, et al, Nos. 367494, 367512, Court of Appeals of Michigan (February 12, 2025) resolved the claims.
The plaintiff, Encompass Indemnity Company, issued a no-fault insurance policy to Jon and Joyce Fox, with Michael Fox added as an additional insured. The dispute centers on whether fraud occurred in...
Insurance Fraud Leads to Violent Crime
Post 4990
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CRIMINAL CONDUCT NEVER GETS BETTER
In The People v. Dennis Lee Givens, B330497, California Court of Appeals, Second District, Eighth Division (February 3, 2025) Givens appealed to reverse his conviction for human trafficking and sought an order for a new trial.
FACTS
In September 2020, Givens matched with J.C. on the dating app “Tagged.” J.C., who was 20 years old at the time, had known Givens since childhood because their mothers were best friends. After matching, J.C. and Givens saw each other daily, and J.C. began working as a prostitute under Givens’s direction.
Givens set quotas for J.C., took her earnings, and threatened her when she failed to meet his demands. In February 2022, J.C. confided in her mother who then contacted the Los Angeles Police Department. The police ...
Police Officer’s Involvement in Insurance Fraud Results in Jail
Post 4989
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Von Harris was convicted of bribery, forgery, and insurance fraud. He appealed his conviction and sentence. His appeal was denied, and the Court of Appeals upheld the conviction.
In State Of Ohio v. Von Harris, 2025-Ohio-279, No. 113618, Court of Appeals of Ohio, Eighth District (January 30, 2025) the Court of Appeals affirmed the conviction.
FACTUAL BACKGROUND
On January 23, 2024, the trial court sentenced Harris. The trial court sentenced Harris to six months in the county jail on Count 15; 12 months in prison on Counts 6, 8, 11, and 13; and 24 months in prison on Counts 5 and 10, with all counts running concurrent to one another for a total of 24 months in prison. The jury found Harris guilty based on his involvement in facilitating payments to an East Cleveland ...
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To Dispute an Arbitration Finding Party Must File Dispute Within 20 Days
Post 4988
EXCUSABLE NEGLECT SUFFICIENT TO DISPUTE ARBITRATION LATE
In Howard Roy Housen and Valerie Housen v. Universal Property & Casualty Insurance Company, No. 4D2023-2720, Florida Court of Appeals, Fourth District (January 22, 2025) the Housens appealed a final judgment in their breach of contract action.
FACTS
The Housens filed an insurance claim with Universal, which was denied, leading them to file a breach of contract action. The parties agreed to non-binding arbitration which resulted in an award not
favorable to the Housens. However, the Housens failed to file a notice of rejection of the arbitration decision within the required 20 days. Instead, they filed a motion for a new trial 29 days after the arbitrator’s decision, citing a clerical error for the delay.
The circuit court ...