Allowing Admissions to be Deemed Admitted Defeats Suit
Post 4889
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Lynette Januzi appealed from the trial court's order granting summary judgment against her and in favor of American Modern Property and Casualty Insurance (AMCI) and Melissa Ann Workman. She asserts the trial court erred in considering deemed admissions and there is more than a scintilla of evidence to support her claims.
In Lynnette Januzi v. American Modern Property And Casualty Insurance And Melissa Ann Workman, No. 12-24-00016-CV, Court of Appeals of Texas, Twelfth District, Tyler (August 29, 2024) the Court of Appeals applied Texas law.
BACKGROUND
In March 2019, Januzi obtained an insurance policy from her agent, Workman, through AMCI. The policy has a $75,000 sublimit for water damage. She had a water damage claim and over a period of AMCI issued additional payments to pay contractors and various damages making the total disbursement equal to the $75,000 limit. On January 22, AMCI notified Januzi that the last payment constituted the balance of the water damage limit.
Januzi took issue with the $75,000 water damage limit, claiming she was unaware of the sublimit. She further claims that AMCI failed to adequately evaluate and pay her claim. Januzi also believed that her agent failed to provide a policy providing sufficient coverage and that there was a conspiracy between the agent and insurance company to underpay claims. As part of the discovery process, AMCI and Workman sent Januzi requests for admissions. Although Januzi responded to other discovery requests, she did not respond to the admissions request.
In November, AMCI and Workman filed a motion for summary judgment, emphasizing that Januzi failed to respond to the admissions and that they are considered deemed admitted. Ultimately, the trial court granted the motion for summary judgment and dismissed Januzi's claims.
DEEMED ADMISSIONS
In Texas, once an action is filed, a party may serve written requests for admissions that can encompass "any matter within the scope of discovery, including statements of opinion or of fact or of the applications of law to fact . . ." If the opposing party does not serve responses to the admissions requests within thirty days, the matters in the requests are deemed admitted against the party without the necessity of a court order.
Withdrawal of deemed admissions is permitted upon a showing of good cause but Januzi has yet to request the deemed admissions be withdrawn or amended. Because the requests for admissions were attached to the motion for summary judgment, the trial court could properly consider them.
The deemed admissions were the controlling evidence before the trial court at the hearing on the motion for summary judgment, and the court could not properly have considered affidavits that attempted to controvert those admissions
ANALYSIS
In their motion, AMCI and Workman specifically relied on the following deemed admissions:
1 Admit that you signed the application for the insurance policy attached as Exhibit A (Signed Homeowner Application).
2 Admit that you authorized and approved the insurance coverage amounts stated in the application for insurance.
3 Admit that you were aware of the water damage limit at the time you signed the application for the insurance policy found in Exhibit A (Signed Homeowner Application).
4 Admit that the water damage limit under the policy is $75,000.
5 Admit that Defendant paid the water damage limit of $75,000.
6 Admit that you replaced items and made upgrades to the insured property that were not part of the water damage claim.
7 Admit the majority of the damages to the insured property were caused by the contractors you hired.
8 Admit water damage limits of $75,000 were paid under the Policy by 1-20-22.
These admissions and many more established that Januzi was aware of the policy limits when she purchased her homeowner's policy from Workman and that those limits include a $75,000 sublimit for water damage. They also establish that AMCI made payments totaling that $75,000 limit.
Januzi's causes of action against Workman for negligence, fraud, and negligent misrepresentation are rooted in her accusation that Workman, an insurance agent, represented that the policy "covered her needs fully" and that "she had the correct coverage." Therefore, the evidence establishes that Januzi was aware of and consented to the policy limits prior to her insurance claim, and Januzi cannot offer any conflicting evidence.
The judgment of the court below was affirmed and that all costs of this appeal are hereby adjudged against the Appellant, Lynette Januzi.
ZALMA OPINION
When I was a young lawyer California allowed litigants to deem admitted requests for admission that were not responded to in 30 days. I filed, on behalf of my clients, dozens of motions for summary judgment based on requests that were deemed admitted. The plaintiff whose case was lost because of admissions deemed admitted is not without a remedy, her lawyers may be responsible for the error.
(c) 2024 Barry Zalma & ClaimSchool, Inc.
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Notice of Claim Later than 60 Days After Expiration is Too Late
Post 5089
Injury at Massage Causes Suit Against Therapist
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Hiscox Insurance Company (“Hiscox”) moved the USDC to Dismiss a suit for failure to state a claim because the insured reported its claim more than 60 days after expiration of the policy.
In Mluxe Williamsburg, LLC v. Hiscox Insurance Company, Inc., et al., No. 4:25-cv-00002, United States District Court, E.D. Missouri, Eastern Division (May 22, 2025) the trial court’s judgment was affirmed.
FACTUAL BACKGROUND
Plaintiff, the operator of a massage spa franchise, entered into a commercial insurance agreement with Hiscox that provided liability insurance coverage from July 25, 2019, to July 25, 2020. On or about June 03, 2019, a customer alleged that one of Plaintiff’s employees engaged in tortious ...
ZIFL – Volume 29, Issue 11
The Source for the Insurance Fraud Professional
Posted on June 2, 2025 by Barry Zalma
Post 5087
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Read the full article and the full issue of ZIFL June 1, 2025 at https://zalma.com/blog/wp-content/uploads/2025/05/ZIFL-06-01-2025.pdf
Zalma’s Insurance Fraud Letter – June 1, 2025
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ZIFL – Volume 29, Issue 11
The Source for the Insurance Fraud Professional
Read the full article and the full issue of ZIFL June 1, 2025 at https://lnkd.in/gTWZUnnF
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 ...
No Coverage if Home Vacant for More Than 60 Days
Failure to Respond To Counterclaim is an Admission of All Allegations
Post 5085
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In Nationwide Mutual Insurance Company v. Rebecca Massey, Civil Action No. 2:25-cv-00124, United States District Court, S.D. West Virginia, Charleston Division (May 22, 2025) Defendant Nationwide Mutual Insurance Company's (“Nationwide”) motion for Default Judgment against Plaintiff Rebecca Massey (“Plaintiff”) for failure to respond to a counterclaim and because the claim was excluded by the policy.
BACKGROUND
On February 26, 2022, Plaintiff's home was destroyed by a fire. At the time of this accident, Plaintiff had a home insurance policy with Nationwide. Plaintiff reported the fire loss to Nationwide, which refused to pay for the damages under the policy because the home had been vacant for more than 60 days.
Plaintiff filed suit ...
ZIFL Volume 29, Issue 10
The Source for the Insurance Fraud Professional
See the full video at https://lnkd.in/gK_P4-BK and at https://lnkd.in/g2Q7BHBu, and at https://zalma.com/blog and at https://lnkd.in/gjyMWHff.
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/ You can read the full issue of the May 15, 2025 issue at http://zalma.com/blog/wp-content/uploads/2025/05/ZIFL-05-15-2025.pdf
This issue contains the following articles about insurance fraud:
Health Care Fraud Trial Results in Murder for Hire of Witness
To Avoid Conviction for Insurance Fraud Defendants Murder Witness
In United States of America v. Louis Age, Jr.; Stanton Guillory; Louis Age, III; Ronald Wilson, Jr., No. 22-30656, United States Court of Appeals, Fifth Circuit (April 25, 2025) the Fifth Circuit dealt with the ...
Professional Health Care Services Exclusion Effective
Post 5073
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This opinion is the recommendation of a Magistrate Judge to the District Court Judge and involves Travelers Casualty Insurance Company and its duty to defend the New Mexico Bone and Joint Institute (NMBJI) and its physicians in a medical negligence lawsuit brought by Tervon Dorsey.
In Travelers Casualty Insurance Company Of America v. New Mexico Bone And Joint Institute, P.C.; American Foundation Of Lower Extremity Surgery And Research, Inc., a New Mexico Corporation; Riley Rampton, DPM; Loren K. Spencer, DPM; Tervon Dorsey, individually; Kimberly Dorsey, individually; and Kate Ferlic as Guardian Ad Litem for K.D. and J.D., minors, No. 2:24-cv-0027 MV/DLM, United States District Court, D. New Mexico (May 8, 2025) the Magistrate Judge Recommended:
Insurance Coverage Dispute:
Travelers issued a Commercial General Liability ...
A Heads I Win, Tails You Lose Story
Post 5062
Posted on April 30, 2025 by Barry Zalma
"This is a Fictionalized True Crime Story of Insurance Fraud that explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is designed to help everyone 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."
Immigrant Criminals Attempt to Profit From Insurance Fraud
People who commit insurance fraud as a profession do so because it is easy. It requires no capital investment. The risk is low and the profits are high. The ease with which large amounts of money can be made from insurance fraud removes whatever moral hesitation might stop the perpetrator from committing the crime.
The temptation to do everything outside the law was the downfall of the brothers Karamazov. The brothers had escaped prison in the old Soviet Union by immigrating to the United...