Wrongful Death of an Insured Excluded
Post 4861
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In B.H., et al v. P.B. and L.B., and Upland Mutual Insurance, No. 126,874, Court of Appeals of Kansas (August 16, 2024) the Court of Appeals resolved a coverage issue.
FACTUAL BACKGROUND
In B.H., Special Administrator of the Estate of C.W.H., a Minor, and B.H., Individually and for and on Behalf of All the Surviving Heirs-at-Law of C.W.H., a Minor v. P.B. and L.B., and Upland Mutual Insurance, No. 126,874, Court of Appeals of Kansas (August 16, 2024) the Court of Appeals needed to resolve a coverage issue when insurer was asked to pay a judgment rendered against its insured.
GARNISHMENT PROCEEDINGS
A garnishment proceeding in Kansas does not create contractual privity between a judgment creditor and the garnishee. A judgment creditor seeking to garnish a judgment debtor’s insurance provider-when the judgment creditor is not in privity of contract with the insurer and is not an intended third-party beneficiary of the insurance policy-may only recover from the insurer to the extent the insured judgment debtor could recover.
FACTUAL BACKGROUND
Mother’s toddler tragically died from drowning in a pond at the child’s foster parents’ home. Mother sought damages from the foster parents, alleging they negligently caused her child’s death. The district court found one of the foster parents- P.B.-80% at fault for her child’s death and awarded Mother damages of $320,000, comprised of $120,000 for the mother’s survivor claim and $200,000 for her wrongful death claim.
P.B. and L.B. were licensed foster parents who received Mother’s child, C.W.H., as a foster placement in December 2015 when C.W.H. was about one month old. In August 2017, when C.W.H. was about 23 months old, he drowned in a tragic accident in a fishpond on the foster parents’ property when only P.B. was home. At the time of C.W.H.’s death, Mother had been working on her reintegration plan and C.W.H. was spending five nights a week with Mother.
The foster parents were insured under a homeowners insurance policy issued by Upland Mutual. The policy contained the following exclusion: “‘bodily injury’ to ‘you’, and if residents of ‘your’ household, ‘your’ relatives and persons under the age of 21 in ‘your’ care or in the care of ‘your’ resident relatives.”
Upland Mutual notified P.B. and L.B. of this refusal to provide coverage and defense, explaining that C.W.H. was under the age of 21 (he was approximately age 22 months old at the date of the incident), was residing in the household and was in P.B and L.B. care. C.W.H. was also an insured under the policy.
After winning that judgment, Mother sued Upland Mutual, P.B.’s homeowners insurer, in the amount of the judgment against P.B. The district court ordered Upland Mutual to pay Mother $200,000, which represents P.B.’s proportional share of fault on her wrongful death claim. The district court agreed with Mother in part, finding no coverage for Mother’s survivor claim but finding the homeowners insurance policy covered Mother’s wrongful death claim because Mother was not an insured under the policy.
DISCUSSION
The only issue on appeal is whether the district court erred in entering a garnishment order against Upland Mutual for Mother’s wrongful death judgment against P.B. When the facts are undisputed the court need not review the district court’s factual findings and can proceed to the second step to review the district court’s conclusions of law .
The District Court Erred in Finding the Foster Parents’ Homeowners Insurance Policy Provided Coverage for the Judgment on Mother’s Wrongful Death Claim
Upland Mutual’s fairly broad coverage provision is limited by a separate provision that states personal liability coverage “does not apply to: a. ‘bodily injury’ to ‘you’, and if residents of ‘your’ household, ‘your’ relatives and persons under the age of 21 in ‘your’ care ….”
The plain and unambiguous policy language excludes from coverage bodily injuries, including death, to persons under the age of 21 that occurred while the injured was in the care of the insured and a resident of their household. The parties did not dispute that C.W.H. resided with the insureds and thus met this definition under either interpretation. Since the exclusion language in the present case is not ambiguous it was applied as written.
It is axiomatic that when the terms of an insurance policy are clear and unambiguous, the court must give effect to the parties’ clear intentions and enforce the contract as made.
Since the policy clearly excluded from coverage damages resulting from C.W.H.’s death because C.W.H. was residing in the insureds’ home, under the insureds’ care, and under the age of 21, the district court’s garnishment order for Mother’s wrongful death judgment was, therefore, reversed.
ZALMA OPINION
The loss of a child is horrible. Judges feel empathy, if not sympathy, to a mother whose child died as a result of a the negligence of others. Judges seldom have empathy for an insurer who refuses to indemnify an insured because of an exclusion. The Trial court ordered the insurer to pay in contravention of a clear and unambiguous exclusion. The Court of Appeals reversed because the exclusion was clear.
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Policy Limits Demand Accepted Settles Claim
Post 5434
Posted on August 26, 2026 by Barry Zalma
See the full video at https://lnkd.in/g-ZtsSgK and at https://lnkd.in/ghMBdYWR
A Contingent Offer Accepted Ends the Dispute
In Farmers Insurance Exchange, a California Reciprocal Insurance Exchange, The Superior Court For The County Of San Bernardino, Kathleen Ann Wood, E087128, California Court of Appeals, (July 9, 2026) Farmers Insurance Exchange insured Doyle Archer under an automobile policy with bodily injury limits of $15,000 per person and $30,000 per accident.
FACTUAL BACKGROUND
Archer rear-ended Kathleen Ann Wood at a red light, causing Wood to assert a bodily injury claim against him. Wood’s counsel sent Farmers a pre-litigation settlement demand offering to resolve Wood’s claim for the available policy limits, stating that if the $100,000 demand exceeded the policy, the offer was for the policy limits.
Farmers timely responded in writing, agreed to pay Wood the $15,000 per-person policy limit, and provided the requested ...
Policy Limits Demand Accepted Settles Claim
Post 5434
Posted on August 26, 2026 by Barry Zalma
See the full video at https://lnkd.in/g-ZtsSgK and at https://lnkd.in/ghMBdYWR
A Contingent Offer Accepted Ends the Dispute
In Farmers Insurance Exchange, a California Reciprocal Insurance Exchange, The Superior Court For The County Of San Bernardino, Kathleen Ann Wood, E087128, California Court of Appeals, (July 9, 2026) Farmers Insurance Exchange insured Doyle Archer under an automobile policy with bodily injury limits of $15,000 per person and $30,000 per accident.
FACTUAL BACKGROUND
Archer rear-ended Kathleen Ann Wood at a red light, causing Wood to assert a bodily injury claim against him. Wood’s counsel sent Farmers a pre-litigation settlement demand offering to resolve Wood’s claim for the available policy limits, stating that if the $100,000 demand exceeded the policy, the offer was for the policy limits.
Farmers timely responded in writing, agreed to pay Wood the $15,000 per-person policy limit, and provided the requested ...
The Largest Residential Burglary of All Time
Post 5407
Fraud & the Fear of Bad Faith Suits
Posted on July 22, 2026 by Barry Zalma
See the full video at https://lnkd.in/gWQQEySW and at https://lnkd.in/gyhdK6wv
This is a Fictionalized True Crime Story of Insurance Fraud explaining why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is one of a collection designed to help to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the Perpetrators than any Other Crime.
This is a Fictionalized True Crime Story of Insurance Fraud explaining why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is one of a collection designed to help to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the Perpetrators than any Other Crime.
After ...
Insurance Requires Fortuity to be an Insured Risk
Post 5485
Posted on September 8, 2026 by Barry Zalma
In Industrial Park Center, LLC, doing business as Mainspring Capital Group v. Great Northern Insurance Company, a foreign insurer, No. CV-25-0330-CQ, Supreme Court of Arizona (September 1, 2026).
The United States Court of Appeals for the Ninth Circuit certified the following question to this Court:
"Is damage to property a “fortuitous” loss when, based on the insured’s knowledge at the time the insurance policy issued, it was reasonably foreseeable that such damage was almost certain to occur if certain preventative measures were not taken?"
FACTUAL BACKGROUND
Mainspring owned commercial property leased to Star Fisheries for decades. Star Fisheries’ use of water and salt allegedly caused structural damage over time. In 2010, Mainspring learned of damage and made some repairs but did not implement all recommended preventive measures. In 2021–2022, additional similar structural damage was discovered, and ...
Qui Tam Relators are not officers of the United States
Posted on September 4, 2026 by Barry Zalma
Attempt to use Constitution to Stop a Qui Tam False Claims Act Case
Post 5486
FCA’s Qui Tam Provisions do not Violate the Appointments Clause.
In United States Of America, Clarissa Zafirov, ex rel; Dr. v. Florida Medical Associates, LLC, d.b.a. Vipcare, Physician Partners, LLC, Anion Technologies, LLC, Freedom Health, Inc., Optimum Healthcare, Inc., Physician Partners Specialty Services, LLC, et al., No. 24-13581, United States Court of Appeals, Eleventh Circuit (September 1, 2026).
The False Claims Act (“FCA”) allows the Attorney General to bring civil suits against perpetrators of fraud against the government. This case involves another portion of the FCA-the qui tam provisions-which allow people, called relators, who have knowledge about fraud against the government to pursue a case against the perpetrator of the fraud.
Dr. Clarissa Zafirov filed a qui tam action under the False Claims Act on behalf of...
Posted on September 3, 2026 by Barry Zalma
You Only Get One Chance to Sue
Post 5484
In David Cromp v. Johnny Harkrider, Monique Harkrider, and their Marital Community, dba Able Plumbing Plus, No. 61678-5-II, Court of Appeals of Washington, Division 2 (August 25, 2026) David Cromp hired Able Plumbing Plus in 2018 to install plumbing, including two toilets, at his residence. In 2019, both toilets allegedly leaked, causing damage. Insurance claims were submitted through Able’s contractor policy, but the insurer eventually denied the claims.
Cromp sued Able in 2022 for breach of contract based on the allegedly defective toilet installation. During that case, Cromp attempted to add claims related to Able’s conduct during the insurance claim process, including fraud, bad faith, tortious conduct, and bond-related claims, but the superior court denied leave to amend. The 2022 breach-of-contract claim was later dismissed with prejudice on summary judgment as time-barred.
On the same day the 2022 case was dismissed, Cromp filed a ...
