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July 17, 2024
Insurance Policy Conditions Must be Applied

Roof Damage Insurance Disputes Resolved
Post 4836

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Roof damage insurance disputes are common. April Point South Property Owner’s Association, claims that the insurer, Third Coast Insurance Company, owes over $1.8 million to repair hailstorm damage to 31 separate buildings in a condominium project. Third Coast investigated the claim and denied coverage. April Point disputed the denial. Both parties retained adjusters and experts. After the parties failed to reach resolution, April Point sued.

In April Point South Property Owner’s Association, Inc v. Third Coast Insurance Co., Civil Action No. H-23-2654, United States District Court, S.D. Texas, Houston Division (July 15, 2024) the USDC resolved competing motions for summary judgment.

ANALYSIS

Third Coast did not pay anything under the policy in the year after the storm damage. April Point has presented evidence that Third Coast’s coverage denial deprived April Point of the funds it needed to make the repairs. Although April Point may recover on a replacement cost value despite the one-year deadline, subject to the limitations discussed below, April Point must make the repairs in order to obtain coverage on a replacement value basis.

The Age of the Roofs

Third Coast also argues that April Point can recover no more than the actual cash value of the repairs because the damaged roofs are over 15 years old. The policy states that “[a]ny damage to existing roof coverings that have been in place . . . for more than fifteen (15) years and one (1) day will be valued at ‘Actual Cash Value[.]’”

April Point asserts that that it can show that at least two roofs were replaced within the 15 years before the date of loss and therefore qualify for replacement cost value. Third Coast responds that while it does not dispute that 4,400 square feet of the damaged roofs are less than 15 years old, April Point has not shown that the other 186,400 square feet of the roofs are under 15 years old. The court agreed.

Coverage for Cosmetic Damage

The policy excludes payment for “cosmetic loss or damage” which it defines as damage “that alters only the physical appearance of any such item . . . but does not result in the failure of the item to perform its intended function for the remain[d]er of its original, useful life.” The parties agree that cosmetic work is not covered. April Point may not seek cosmetic damages to replace dented but functional parts of the property.

Replacement Cost as of the Date of Loss

The policy provision limiting Third Coast’s obligation to pay repair costs to the prices at the date of loss is unambiguous. Third Coast is entitled to summary judgment limiting the damages to the costs of repair as of the date and place of loss.

The Exclusion of General Contractor Overhead and Profit

The Third Coast insurance policy excludes recovery of “General Contract Overhead and Profit” for the “roof system or any component thereof[.]” Since neither party has submitted or pointed to evidence as to whether the “roof system or any component thereof” includes HVAC units or lattice work the court denied summary judgment because, while the policy excludes recovery for the general contractor’s overhead and profit for the “roof system or any component thereof,” the present record does not show what costs or work this policy language excludes.

The Exclusion of Loss from the Diminution of Value

The insurance policy states that Third Coast “will not pay for loss to Covered Property due to any ‘Diminution in Value[.]’” April Point may not recover damages for diminution of market value based on the appearance of the roofs after repair as opposed to replacement.

The Extracontractual Claims

Texas law imposes on insurers a common law duty to deal fairly and in good faith with its insured in the processing and payment of claims. The record shows that Third Coast’s inspector initially reported evidence of hail damage to the property and recommended payment of the claim. After the initial investigation, Third Coast brought in independent engineering and weather consultants who disagreed with the inspector’s determination. April Point has not submitted or pointed to evidence that these consultants made their findings in an unobjective or unfair matter. A bona fide controversy is sufficient reason for failure of an insurer to make a prompt payment of a loss claim. The evidence shows a bona fide controversy between various experts as to whether the damage was covered, precluding liability for bad faith. The extracontractual claims were dismissed.

CONCLUSION

Third Coast’s motion for partial summary judgment was granted to limit recovery to the actual cash value for roofs except the 4,400 square feet that were less than 15 years old and to the costs of repair as of the date of loss, and to exclude coverage for diminution of value and repair of cosmetic damage. The court also granted summary judgment on the extracontractual claims. Third Coast’s motion was denied as to the work covered by the general contractor overhead provision. The court granted summary judgment that the policy excluded coverage for cosmetic damage and diminution of value.

ZALMA OPINION

Insurance policies that contain provisions that are clear and unambiguous will always be affirmed and applied by a trial court. This court worked for fairness applying some of the insured’s arguments and applied some of the insurer’s position. Importantly it rejected the bad faith claim because the insurer’s position was fairly debatable.

(c) 2024 Barry Zalma & ClaimSchool, Inc.

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00:10:26
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Zalma’s Insurance Fraud Letter – January 15, 2026

ZIFL Volume 30, Number 2

THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL

Post number 5260

Read the full article at https://lnkd.in/gzCr4jkF, see the video at https://lnkd.in/g432fs3q and at https://lnkd.in/gcNuT84h, https://zalma.com/blog, and at https://lnkd.in/gKVa6r9B.

Zalma’s Insurance Fraud Letter (ZIFL) continues its 30th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to anyone who visits the site at http://zalma.com/zalmas-insurance-fraud-letter-2/ This issue contains the following articles about insurance fraud:

Read the full 19 page issue of ZIFL at https://zalma.com/blog/wp-content/uploads/2026/01/ZIFL-01-15-2026.pdf.

The Contents of the January 15, 2026 Issue of ZIFL Includes:

Use of the Examination Under Oath to Defeat Fraud

The insurance Examination Under Oath (“EUO”) is a condition precedent to indemnity under a first party property insurance policy that allows an insurer ...

00:09:20
January 14, 2026
USDC Must Follow the Finding of the Administrator of the ERISA Plan

ERISA Life Policy Requires Active Employment to Order Increase in Benefits

Post 5259

Read the full article at https://lnkd.in/gXJqus8t, see the full video at https://lnkd.in/g7qT3y_y and at https://lnkd.in/gUduPkn4, and at https://zalma.com/blog plus more than 5250 posts.

In Katherine Crow Albert Guidry, Individually And On Behalf Of The Estate Of Jason Paul Guidry v. Metropolitan Life Insurance Company, et al, Civil Action No. 25-18-SDD-RLB, United States District Court, M.D. Louisiana (January 7, 2026) Guidry brought suit to recover life insurance proceeds she alleges were wrongfully withheld following her husband’s death on January 9, 2024.

FACTUAL BACKGROUND

Jason Guidry was employed by Waste Management, which provided life insurance coverage through Metropolitan Life Insurance Company (“MetLife”). Plaintiff contends that after Jason’s death, the defendants (MetLife, Waste Management, and Life Insurance Company of North America (“LINA”)) engaged in conduct intended to confuse and ultimately deny her entitlement to...

00:07:30
January 13, 2026
Mediation in State Court Resolves Action in USDC

Failure to Respond to Motion to Dismiss is Agreement to the Motion
Post 5259

Read the full article at https://lnkd.in/gP52fU5s, see the video at https://lnkd.in/gR8HMUpp and at https://lnkd.in/gh7dNA99, and at https://zalma.com/blog plus more than 5250 posts.

In Mercury Casualty Company v. Haiyan Xu, et al., No. 2:23-CV-2082 JCM (EJY), United States District Court, D. Nevada (January 6, 2026) Plaintiff Mercury Casualty Company (“plaintiff”) moved to dismiss. Defendant Haiyan Xu and Victoria Harbor Investments, LLC (collectively, “defendants”) did not respond.

This case revolves around an insurance coverage dispute when the parties could not be privately resolved, litigation was initiated in the Eighth Judicial District Court of Nevada. Plaintiff subsequently filed for a declaratory judgment in this court.

On or about April 15, 2025, the state court action was dismissed with prejudice pursuant to a stipulation following mediation. Plaintiff states that the state court dismissal renders its ...

00:04:26
December 31, 2025
“Sudden” is the Opposite of “Gradual”

Court Must Follow Judicial Precedent
Post 5252

Read the full article at https://www.linkedin.com/pulse/sudden-opposite-gradual-barry-zalma-esq-cfe-h7qmc, see the video at and at and at https://zalma.com/blog plus more than 5250 posts.

Insurance Policy Interpretation Requires Application of the Judicial Construction Doctrine

In Montrose Chemical Corporation Of California v. The Superior Court Of Los Angeles County, Canadian Universal Insurance Company, Inc., et al., B335073, Court of Appeal, 337 Cal.Rptr.3d 222 (9/30/2025) the Court of Appeal refused to allow extrinsic evidence to interpret the word “sudden” in qualified pollution exclusions (QPEs) as including gradual but unexpected pollution. The court held that, under controlling California appellate precedent, the term “sudden” in these standard-form exclusions unambiguously includes a temporal element (abruptness) and cannot reasonably be construed to mean ...

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December 29, 2025
Doctor Accused of Insurance Fraud Sues Insurer Who Accused Him

Lack of Jurisdiction Defeats Suit for Defamation

Post 5250

Posted on December 29, 2025 by Barry Zalma

See the video at and at

He Who Represents Himself in a Lawsuit has a Fool for a Client

In Pankaj Merchia v. United Healthcare Services, Inc., Civil Action No. 24-2700 (RC), United States District Court, District of Columbia (December 22, 2025)

FACTUAL BACKGROUND
Parties & Claims:

The plaintiff, Pankaj Merchia, is a physician, scientist, engineer, and entrepreneur, proceeding pro se. Merchia sued United Healthcare Services, Inc., a Minnesota-based medical insurance company, for defamation and related claims. The core allegation is that United Healthcare falsely accused Merchia of healthcare fraud, which led to his indictment and arrest in Massachusetts, causing reputational and business harm in the District of Columbia and nationwide.

Underlying Events:

The alleged defamation occurred when United ...

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December 15, 2025
Zalma’s Insurance Fraud Letter – December 15, 2025

Zalma’s Insurance Fraud Letter

Read the full article at https://lnkd.in/dG829BF6; see the video at https://lnkd.in/dyCggZMZ and at https://lnkd.in/d6a9QdDd.

ZIFL Volume 29, Issue 24

Subscribe to the e-mail Version of ZIFL, it’s Free! https://visitor.r20.constantcontact.com/manage/optin?v=001Gb86hroKqEYVdo-PWnMUkcitKvwMc3HNWiyrn6jw8ERzpnmgU_oNjTrm1U1YGZ7_ay4AZ7_mCLQBKsXokYWFyD_Xo_zMFYUMovVTCgTAs7liC1eR4LsDBrk2zBNDMBPp7Bq0VeAA-SNvk6xgrgl8dNR0BjCMTm_gE7bAycDEHwRXFAoyVjSABkXPPaG2Jb3SEvkeZXRXPDs%3D

Zalma’s Insurance Fraud Letter (ZIFL) continues its 29th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to anyone who visits the site at http://zalma.com/zalmas-insurance-fraud-letter-2/

Zalma’s Insurance Fraud Letter

Merry Christmas & Happy Hannukah

Read the following Articles from the December 15, 2025 issue:

Read the full 19 page issue of ZIFL at ...

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