To Recover Appraisal Award Insured Must Actually Repair or Replace
Post 4855
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Cresthaven appealed the district court’s denial of its motion for relief from the court’s order dismissing without prejudice Cresthaven’s suit against Empire Indemnity Insurance Company (“Empire”) and for leave to file a supplemental complaint.
In Cresthaven Ashley Master Association, Inc. v. Empire Indemnity Insurance Company, No. 23-12761, United States Court of Appeals, Eleventh Circuit (August 7, 2024) the Eleventh Circuit resolved the dispute.
FACTS
Cresthaven, a condominium association, purchased a commercial property policy from Empire for a period covering March 17, 2017 to March 17, 2018 (the “Policy”). On September 10, 2017, Hurricane Irma struck the state of Florida. Cresthaven timely filed a claim with Empire for property damages sustained in the storm, which Empire denied on April 19, 2019.
Cresthaven’s Complaint, filed on July 15, 2019, sought a declaratory judgment that it did not breach its post loss duties, as well as the enforcement of the Policy’s appraisal provision and damages for breach of contract. Over the next three years, the parties conducted an appraisal and Cresthaven received two awards for property damages.
Empire a Motion to Dismiss for Lack of Subject-Matter Jurisdiction arguing that Cresthaven’s case no longer presented an actual Case or Controversy under Article III. The Court granted Empire’s motion on March 24, 2022.
March 24, 2022 Dismissal Order
Cresthaven needed to first identify an applicable law or ordinance that, if enforced, could result in a loss in value to the undamaged portion of the building or an increased cost to reconstruct any portion of the building, whether damaged or not. Second, the applicable law or ordinance needed to be enforced. Third, the applicable ordinance or law must have resulted in the aforementioned “loss in value” or “increased cost”. Cresthaven failed to satisfy any of the three preconditions.
The Court dismissed Cresthaven’s claims for failing to present an actual Case or Controversy.
Post-Dismissal Events
Cresthaven diligently commenced and completed repairs for several of its structures. Cresthaven never completed repairs or completed them timely to recover benefits under the Replacement Cost coverage under Empire’s Policy. Empire effectively invoked the five year statute of repose for property insurance claims under Fla. Stat. §95.11(2)(e).
DISCUSSION
Empire never waived its right to invoke the statute of repose. Without evidence that Empire represented that it would not invoke the statute of repose, the Eleventh Circuit could not conclude that the district court abused its discretion in declining to attribute bad faith to Empire’s communications about adjusting the claim with Cresthaven after the dismissal.
Empire’s written waiver was very specific and waived only the “as soon as reasonably possible” and the two-year deadline with respect to repairs, the temporal limitations that appeared in the Policy itself.
Empire’s July 8, 2022, letter invited Cresthaven to complete repairs and submit requests for payment. The fact that Empire did invoke the five-year statute of repose after its expiration merely indicates that Empire intended to exercise its rights under the Policy provisions and the law, which intention was apparent from the very inception of Cresthaven’s claim.
Empire’s waiver of two very specific rights is not a basis on which to infer a waiver of all rights.
The Policy provisions required Cresthaven to perform the work and identify the relevant ordinance before seeking reimbursement and the district court still would have granted the motion.
ZALMA OPINION
Waiver is a legal concept that allows parties to agree that certain conditions of a contract of insurance will not apply as long as it is knowingly made without coercion. Empire waived two rights provided to it in the policy. That was all it waived, nothing more, and it certainly did not waive the Statute of Repose, which, when it expired destroyed the entire lawsuit and arguments of Cresthaven. An insured should never sit on its rights.
(c) 2024 Barry Zalma & ClaimSchool, Inc.
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Montana County Attorney Admits to Insurance Fraud & Is Only Suspended from Practice for 60 Days
Post 5251
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A Lawyer Who Commits Insurance Fraud and Pleas to a Lower Charge Only Suspended
In The Matter Of: Naomi R. Leisz, Attorney at Law, No. PR 25-0150, Supreme Court of Montana (December 23, 2025) the Montana Office of Disciplinary Counsel (ODC) filed a formal disciplinary complaint with the Commission on Practice (Commission) against Montana attorney Naomi R. Leisz.
On September 25, 2025, Leisz tendered a conditional admission and affidavit of consent. Leisz acknowledged the material facts of the complaint were true and she had violated the Montana Rules of Professional Conduct as alleged by ODC.
ADMISSIONS
Leisz admitted that in April 2022, her minor son was involved in a car accident in which he hit a power pole. Leisz’s son ...
Montana County Attorney Admits to Insurance Fraud & Is Only Suspended from Practice for 60 Days
Post 5251
Read the full article at https://lnkd.in/gnBaCjmv, see the video at https://lnkd.in/gfpVsyAd and at https://lnkd.in/gC73Nd8z, and at https://zalma.com/blog plus more than 5250 posts.
A Lawyer Who Commits Insurance Fraud and Pleas to a Lower Charge Only Suspended
In The Matter Of: Naomi R. Leisz, Attorney at Law, No. PR 25-0150, Supreme Court of Montana (December 23, 2025) the Montana Office of Disciplinary Counsel (ODC) filed a formal disciplinary complaint with the Commission on Practice (Commission) against Montana attorney Naomi R. Leisz.
On September 25, 2025, Leisz tendered a conditional admission and affidavit of consent. Leisz acknowledged the material facts of the complaint were true and she had violated the Montana Rules of Professional Conduct as alleged by ODC.
ADMISSIONS
Leisz admitted that in April 2022, her minor son was involved in a car accident in which he hit a power pole. Leisz’s son ...
Insurer’s Exclusion for Claims of Assault & Battery is Effective
Post 5250
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Bar Fight With Security is an Excluded Assault & Battery
In The Cincinnati Specialty Underwriters Insurance Company v. Mainline Private Security, LLC, et al., Civil Action No. 24-3871, United States District Court, E.D. Pennsylvania (December 16, 2025) two violent attacks occurred in Philadelphia involving young men, Eric Pope (who died) and Rishabh Abhyankar (who suffered catastrophic injuries). Both incidents involved security guards provided by Mainline Private Security, LLC (“Mainline”) at local bars. The estates of the victims sued the attackers, the bars, and Mainline for negligence and assault/battery. The insurer exhausted a special limit and then denied defense or indemnity to Mainline Private Security.
INSURANCE COVERAGE
Mainline had purchased a commercial ...
Court Must Follow Judicial Precedent
Post 5252
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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 ...
Lack of Jurisdiction Defeats Suit for Defamation
Post 5250
Posted on December 29, 2025 by Barry Zalma
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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 ...
Zalma’s Insurance Fraud Letter
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ZIFL Volume 29, Issue 24
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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 ...
