Keeping Clients Funds Without Right Excluded Professional Service
Profit, Remuneration, or Advantage When Insured Not Legally Entitled Excluded
Post 4856
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In USCC Services, LLC, et al., The Pep Boys - Manny, Moe & Jack v. Young America, LLC, Endurance Risk Solutions Assurance Co., No. A23-1982, Court of Appeals of Minnesota (August 5, 2024) resolved an insurance dispute.
Appellants each obtained a judgment against an insured defendant in separate district court proceedings for breach of fiduciary duty based on the defendant mishandling funds that it held in trust for appellants. Since the insured was bankrupt and without assets the judgment creditors sought to collect from the defendants insurer 'swith a garnishment proceeding. They failed in the trial court and appealed to the Court of Appeals of Minnesota.
FACTS
Prelitigation Events
USCC Services LLC, through its affiliate U.S. Cellular, provides cellular telephone and internet services. Appellant Motorola Mobility LLC provides mobile products and services. The defendant in the underlying actions, Young America LLC, was a marketing-services company that provided a wide variety of services to its clients, which included appellants. Young America administered programs and services, including rebates, refunds, incentives, and prepaid-product programs, that involved remitting payments to its clients' customers.
In 2020, Young America became insolvent and ceased business operations. At that time, Young America should have had $493,757.19 in program funds from Motorola and $1,020,669.25 in program funds from USCC, but it did not.
Appellants' Underlying Lawsuits Against Young America
Appellants brought individual lawsuits against Young America. Young America did not answer the complaints. Endurance did not defend Young America against appellants' lawsuits and appellants obtained judgments for USCC in the amount of $1,020,669.25 and Motorola for $493,757.19 to repay the funds that Young America failed to hold in trust.
Appellants' Lawsuits Against Endurance
Appellants initiated this action as a garnishment proceedings against Endurance to collect on the judgments based on Endurance's insurance policy with Young America. Endurance did not provide coverage for appellants' judgments because they were excluded by three separate provisions of the insurance policy: the contractual-liability exclusion, the conduct-and-illegal-profit exclusion, and the professional-services exclusion. The district court determined that each of Young America's three wrongful acts fell within one or more of the exclusions. The district court granted summary judgment to Endurance concluding that the Endurance policy did not cover appellants' judgments.
DECISION
Summary judgment is appropriate when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.
The Concurrent-Cause Doctrine Does Not Apply.
The Appellants posited that concurrent-cause doctrine allowed coverage. The Doctrine provides that damages resulting from concurrent causes are covered so long as the covered cause is a direct cause of the damage even though an excluded cause may also have contributed to the loss.
The Court of Appeals concluded that the concurrent-cause doctrine did not apply because there is only one cause of appellants' damages: Young America's wrongful use of the program funds-and the individual wrongful acts.
Young America's acts of commingling program funds, making preferential payments, and canceling the Lloyd's policy were not independent causes of appellants' damages and the concurrent-cause doctrine could not apply.
Endurance Met Its Burden To Show That The Policy Exclusions Apply
The conduct-and-illegal-profit exclusion provides, in relevant part: “The Insurer shall not be liable for Loss on account of any Claim based upon, arising from, or attributable to . . . an Insured having gained any profit, remuneration, or advantage to which such Insured was not legally entitled[] if established by a final and non-appealable judgment or adjudication adverse to such Insured.” Since Young America kept funds that belonged to appellants it gained a profit, remuneration, or advantage. The exclusion applies.
The professional-services exclusion provides, in relevant part: “Professional Services means any service performed by an Insured. ... The Insurer shall not be liable for Loss on account of any Claim made against a Company based upon, arising from, or attributable to the performance of or failure to perform Professional Services.”
Young America's duty to protect the funds were activities that were incidental or ancillary to the performance of Young America's core professional service of administering rebate programs. Because the conduct-and-illegal-profit exclusion and the professional-services exclusion apply to appellants' claims, the insurance policy does not cover appellants' judgments against Young America.
ZALMA OPINION
The plaintiffs were the victims of a business they trusted - the believed they could trust a company called Young America - and gave it money to hold only to find it wasted the money it held in trust. The plaintiffs sued Young Americas insurer for the money either stolen or just lost. The insurer refused because its policy had three exclusions that applied. The key to risk management is to be diligent when giving money to a company to hold and disburse. The due diligence failed and the plaintiffs have judgments that can only be framed, put on a wall, and wish they never heard of Young America.
(c) 2024 Barry Zalma & ClaimSchool, Inc.
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In Michele A. Over, and The Estate Of Paul R. Over v. State Farm Mutual Automobile Insurance Company, and State Farm Fire And Casualty Company, Civil Action No. 23-cv-02243-PAB-STV, United States District Court, D. Colorado (September 14, 2026) Michele and Paul Over sued State Farm Fire and State Farm Auto over hail-damage and stolen-vehicle claims.
The operative dispute concerned State Farm Auto’s motion to exclude or limit opinions from plaintiffs’ insurance-industry expert, Aaron Castillo. Castillo.
Law
The proponent of expert testimony must establish by a preponderance of the evidence that an expert is qualified and that the opinions are helpful, sufficiently grounded, and reliably derived and applied. Experience-based opinions must explain how the...
150 Months in Prison for Tax Fraud
Post 4846
Posted on September 17, 2026 by Barry Zalma
See the full video at https://lnkd.in/g8rh3JBX and https://lnkd.in/gmkdy-9C, In United States Of America v. Thomas Addaquay, Nos. 25-10609, 25-10611, United States Court of Appeals, Eleventh Circuit (September 9, 2026) the Eleventh Circuit affirmed all challenged convictions, the 150-month aggregate sentence, and the challenged $4,123,474.55 restitution award.
FACTS
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FACTS
Thomas Addaquay controlled United Consolidated Accounting and Business Services (UC), nominally a check-cashing business.
The government proved a three-stage tax-refund scheme that converted the resulting refund checks into usable funds through ...
Major Fraud Perpetrator Asserts Fifth Amendment Privilege to Avoid Prosecution
Post 5489
Posted on September 14, 2026 by Barry Zalma
Fraudster Refuses to Answer Questions About His Alleged Fraud
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In Great American Insurance Co. v. Gemstone Property Management, LLC, et al., No. 23-cv-9100 (LJL), United States District Court, S.D. New York (September 8, 2026) Great American Insurance Company alleged that it was defrauded through a scheme in which Subin Associates, LLP recruited individuals to stage construction-site injuries, arranged unnecessary medical treatment and litigation funding, and pursued fraudulent personal-injury claims.
Luis Manuel Garcia Salcedo, resulted in a $6 million settlement. Non-party Jose Hernandez allegedly worked as an assistant manager at Subin, operated Hernandez Associates, and owned litigation-funding companies that shared office space with Subin and provided services to its clients.
After Great American ...
Denial Of Mental Health Diversion And Probation Condition Were Affirmed
Posted on October 9, 2026 by Barry Zalma
Post 4860
In The People v. Nicholas Daniel Stiles, A173483, A173646, California Court of Appeals, First District, Second Division (September 29, 2026) Nicholas Daniel Stiles pleaded no contest to one count of insurance fraud arising from his purchase of automobile insurance after a June 2021 collision, and to grand theft arising from an April 2024 incident at a 7-Eleven.
In both cases, the trial court suspended imposition of sentence and placed him on two years’ probation. Before the pleas, Stiles sought mental health diversion in both matters and filed a written motion seeking substitute appointed counsel. The diversion applications were denied, and the court never held a hearing on the motion.
LAW
Penal Code section 1001.36 permits pretrial mental health diversion when a defendant is eligible and suitable and the proposed treatment will meet the defendant’s specialized needs; denial is reviewed for ...
If Grounds For Dismissal Are Apparent From The Face Of The Complaint, A Court May Also Dismiss The Case on The Court’s Own Motion
Posted on October 5, 2026 by Barry Zalma
Pro Se Plaintiff Failed to Make a Short and Plain Statement
Post 4856
In Tak Lun Ng v. United Financial Casualty Company, No. 26-cv-03136-LJC, United States District Court, N.D. California (September 28, 2026) Tak Lun Ng, proceeding pro se, sued United Financial Casualty Company over a March 2, 2021 automobile accident and the insurer’s March 24, 2021 refusal to pay him.
He appeared to assert breach of contract, fraud, negligence, premises liability, product liability, and related theories. United removed the action from state court and moved to dismiss.
Ng missed that deadline but later filed several documents, including a motion for leave to amend, all of which the court reviewed.
LAW
Under Federal Rules of Civil Procedure, a complaint must provide a short and plain statement containing enough factual matter to state a facially plausible...
If Grounds For Dismissal Are Apparent From The Face Of The Complaint, A Court May Also Dismiss The Case on The Court’s Own Motion
Posted on October 5, 2026 by Barry Zalma
Pro Se Plaintiff Failed to Make a Short and Plain Statement
Post 4856
In Tak Lun Ng v. United Financial Casualty Company, No. 26-cv-03136-LJC, United States District Court, N.D. California (September 28, 2026) Tak Lun Ng, proceeding pro se, sued United Financial Casualty Company over a March 2, 2021 automobile accident and the insurer’s March 24, 2021 refusal to pay him.
He appeared to assert breach of contract, fraud, negligence, premises liability, product liability, and related theories. United removed the action from state court and moved to dismiss.
Ng missed that deadline but later filed several documents, including a motion for leave to amend, all of which the court reviewed.
LAW
Under Federal Rules of Civil Procedure, a complaint must provide a short and plain statement containing enough factual matter to state a facially plausible...