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October 29, 2024
Who’s on First & in What Percentage

Application of Diverse “Other Insurance” Clauses
Insurers Protected Insured and Litigated Their Differences

Post 4920

Two insurance companies- Gemini and Zurich- asked the Eleventh Circuit Court of Appeal to determine what share of a $2 million settlement each is required to pay. The district court entered judgment for Gemini, ordering that Zurich pay $500,000 plus prejudgment interest. Both parties appealed, with Gemini seeking another $500,000 and Zurich challenging the award of prejudgment interest.

In Gemini Insurance Company v. Zurich American Insurance Company, No. 22-13495, United States Court of Appeals, Eleventh Circuit (October 23, 2024) the competing “other insurance clauses” were resolved.
FACTS

After the death of Josue Vallejo, who was struck by a tractor-trailer operated by an employee of FSR Trucking, Inc two of three insurers disputed what proportion of the settlement each should pay. Zurich insured FSR, through its coverage of Commercial, for $1 million. Gemini also insured FSR for $3 million.

The Vallejo claim settled for $3 million, of which Gemini contributed $2 million. Ryder’s insurance company, which is not a party to this appeal, contributed the other $1 million. Gemini and Zurich agree that they each owe a share of the $2 million, but dispute how much each one must pay. Under Gemini’s theory, they each owe $1 million. Under Zurich’s theory, they each owe their pro rata share, which is $500,000 for Zurich and $1.5 million for Gemini.

The different theories of coverage turn on the application of the two policies’ “other insurance” clauses, which generally function to apportion coverage when there is overlapping insurance. Gemini argues that its policy is excess to Zurich’s, while Zurich argues that the policies attach at the same level and thus trigger pro rata contribution.

Gemini sued Zurich for a declaratory judgment in its favor and an award of $1 million plus interest under claims of contractual subrogation or equitable subrogation/contribution. Zurich tendered $500,000 to Gemini to satisfy its pro rata share. Gemini, however, continued to litigate for the other $500,000 plus interest on the entire amount.

Gemini appealed the District Court’s ruling in favor of Zurich and sought to obtain the other $500,000.

ANALYSIS

In Florida, where more than one insurer’s policy provides coverage for a loss, as the parties agree is the case here, it is appropriate to review the insurance contracts to see if the documents address the ‘ranking’ or contribution of other insurers.
The Other Insurance Clauses

Gemini’s “other insurance” clause provides: “This insurance is excess over and shall not contribute with any of the other insurance, whether primary, excess, contingent or on any other basis. This condition will not apply to insurance specifically written as excess over this policy.”

Zurich’s “other insurance” clause is slightly different. “When this Coverage Form and any other Coverage Form or policy covers on the same basis, either excess or primary, we will pay only our share. Our share is the proportion that the Limit of Insurance of our Coverage Form bears to the total of the limits of all the Coverage Forms and policies covering on the same basis.

Interpretation of the “Other Insurance” Clauses

Where two insurance policies contain excess insurance clauses the clauses are deemed mutually repugnant and both insurers become primary and share the loss on a pro rata basis in accordance with their policy limits. Zurich argued, and the district court agreed, that both policies contain excess clauses such as pro rata contribution results.

The Eleventh Circuit Court of Appeals sided with Gemini because when two policies containing conflicting “other insurance” or excess [uninsured/underinsured motorist] clauses.

In sum an “other insurance” clause containing the phrase “we will pay the proportion of damages payable as excess” means that the clause was pro rata, even though it also characterized itself as an excess clause. Moreover, the Eleventh Circuit concluded both policies were primary.

The Eleventh Circuit reversed the district court’s resolution of the cross-motions for summary judgment with regard to the amount of contribution and remanded the case for entry of judgment in favor of Gemini for the principal amount of $1,000,000, with the understanding that Zurich has already paid half of that sum. Upon entry of the amended final judgment on remand, Gemini will be the prevailing party. When a verdict liquidates damages on a plaintiff’s out-of-pocket, pecuniary losses, plaintiff is entitled, as a matter of law, to prejudgment interest at the statutory rate from the date of that loss.

The Eleventh Circuit reversed the district court’s resolution of the cross-motions for summary judgment and remanded for the court to enter judgment in favor of Gemini in the principal amount of $1,000,000 understanding that Zurich has already paid $500,000. It also affirmed the award of prejudgment interest on the first $500,000 and direct the court to award Gemini prejudgment interest on the second $500,000 from February 7, 2019, until the date of the amended final judgment.

ZALMA OPINION

The three insurers of the defendant did the right thing by protecting the insured and then resolving their dispute over the share owed in court. Although insurance companies, generally, should not sue each other. “Other Insurance” clauses invariably raise disputes between insurers and often cause hardship to the insured. In this case Gemini, Zurich and an unnamed insurer put up the $3 million to settle and then Gemini and Zurich sued to clarify who owed what. The Eleventh Circuit found that the District Court was wrong because interpreting the competing “other insurance” clauses should have resulted in a finding that both Gemini and Zurich were primary insurers and each owed $1 million of the settlement and Zurich owed Gemini $500,000 plus interest.

(c) 2024 Barry Zalma & ClaimSchool, Inc.

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00:09:41
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Zalma’s Insurance Fraud Letter – April 1, 2025

ZIFL Volume 29, Issue 7

The Source for the Insurance Fraud Professional

See the full video at https://lnkd.in/gQM9yR3n and at https://lnkd.in/gZDkH7RU, and at https://zalma.com/blog plus more than 5000 posts.

April 1, 2025

Post 5035

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 April 1, 2025 issue at https://zalma.com/blog/wp-content/uploads/2025/03/ZIFL-04-01-2025.pdf.

This issue contains the following articles about insurance fraud:
Lawyers Sanctioned for Tricking a Witness With a False Document

The United States District Court Eastern District Of Texas Marshall Division, Civil Action No. 2:23-CV-00160-JRG in a case entitled Cognipower, LLC v. Samsung Electronics Co., Ltd et al, a report was filed by David Folsom, Special ...

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March 31, 2025
The Rare Abuse of the Appraisal Process

An Important Alternative Dispute Resolution Procedure
Post 5034

Sanctions & The Appraisal Process

Read the full article at https://lnkd.in/gTDubMra, see the full video at https://lnkd.in/gRG_iPVc and at https://lnkd.in/gJ2D7w_2 and at https://zalma.com/blog plus more than 5000 posts.

Appraisal is a form of alternative dispute resolution that sets a disputed loss amount. When an insurance policy has an appraisal provision, the right to appraisal is not permissive but is instead mandatory, so once a demand for appraisal is made, neither party has the right to deny that demand. [McGowan v. First Acceptance Ins. Co., Inc., 411 F.Supp.3d 1293, 1296 (M.D. Fla. 2019).]

Sometimes the appraisal process is abused by people attempting to abuse an insurer and bring about a future bad faith suit rather than resolve the claim. In an example of such abuse attorney Eric Dick demanded appraisal on behalf of his client only to do everything necessary to make it impossible to reach a fair award.

The Court made the following findings in ...

00:11:51
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Title Insurer Properly Denied Claim

If Pleadings and Policy Wording Established Claim Was Excluded is Sufficient to Reject Claim in Texas

Post 5032

Title Defects Assumed by the Insured Excluded

Read the full article at https://www.linkedin.com/pulse/title-insurer-properly-denied-claim-barry-zalma-esq-cfe-m4uxc, see the full video at and at and at https://zalma.com/blog plus more than 5000 posts.

In 2017 Yale Street Development LLC v. First National Title Insurance Company, No. 14-23-00688-CV, Court of Appeals of Texas, Fourteenth District (March 13, 2025) the court was faced with a denied title insurance claim related to a failed construction development project in Houston.

BACKGROUND:

In 2015, Terry Fisher created 829 Yale St. LLC to construct a mid-rise condominium development at 829 Yale Street in Houston. Fisher obtained loans from Steadfast Funding and D&A Alvarez Group to complete the project. 829 Yale conveyed its title to Jetall Companies, Inc. to...

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March 13, 2025

Read the full article at https://www.linkedin.com/pulse/duties-liabilities-insurance-brokers-barry-zalma-esq-cfe-mmpbc, if you Subscribe to “Excellence in Claims Handling” at https://barryzalma.substack.com/subscribe for only $5 a month or $50 a year.

Duties and Liabilities of Insurance Brokers

Posted on March 12, 2025 by Barry Zalma

Excellence in Claims Handling

This blog post is just a taste of the full article that is only available to subscribers to Excellence in Claims Handling. Anyone can subscribe to “Excellence in Claims Handling” at https://barryzalma.substack.com/subscribe for only $5 a month or $50 a year.

Cases in which insurance brokers’ liability is in question depend in part on whether brokers are seen to be serving a fiduciary role or simply acting as a conduit between the insured and the insurer.

A person or an entity is a fiduciary with respect to a plan to the extent:

he exercises any discretionary authority or discretionary control respecting management of such plan ...

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March 12, 2025

Read the full article at https://www.linkedin.com/pulse/duties-liabilities-insurance-brokers-barry-zalma-esq-cfe-mmpbc, if you Subscribe to “Excellence in Claims Handling” at https://barryzalma.substack.com/subscribe for only $5 a month or $50 a year.

Duties and Liabilities of Insurance Brokers

Posted on March 12, 2025 by Barry Zalma

Excellence in Claims Handling

This blog post is just a taste of the full article that is only available to subscribers to Excellence in Claims Handling. Anyone can subscribe to “Excellence in Claims Handling” at https://barryzalma.substack.com/subscribe for only $5 a month or $50 a year.

Cases in which insurance brokers’ liability is in question depend in part on whether brokers are seen to be serving a fiduciary role or simply acting as a conduit between the insured and the insurer.

A person or an entity is a fiduciary with respect to a plan to the extent:

he exercises any discretionary authority or discretionary control respecting management of such plan ...

post photo preview
February 25, 2025
Adjusting Liability Claims

The Basics Needed by a Liability Adjuster

Post 5003
Posted on February 25, 2025 by Barry Zalma

See the full video at and at

Adjusting liability insurance claims requires skill, patience, knowledge of insurance, basic knowledge of tort and contract law, and knowledge and experience as an investigator. The liability claims adjuster is faced with the following basic obligations:

  • To understand the law of torts as applied in the state where the adjuster works.
  • To understand the law of contracts as applied in the state where the adjuster works.
  • To understand sufficient medical terminology to be able to evaluate claims of injury.
  • To understand the costs to repair or replace damaged real or personal property.
  • To understand how to read and apply the terms and conditions of a liability insurance policy.
  • To understand how to thoroughly investigate all claims assigned.
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