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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 support of its imposition of sanctions in Mitchell v. USAA Gen. Indem. Co., 09-23-00042-CV (Tex. App. Feb 27, 2025) and found that these facts are good cause for the sanctions imposed by the Court detailed in its opinion to impose the ultimate sanction, dismissal of the plaintiff’s suit:

On April 13, 2021, Plaintiff, Michael Mitchell (“Plaintiff or “Mitchell”), sued USAA.
After filing suit, Plaintiff filed a Motion to Compel Appraisal and Abatement.
USAA GIC opposed that Motion, and on July 30, 2021, the Court granted Plaintiffs Motion.
The appraisal, however, never occurred as Plaintiff refused to allow access to his property despite several attempts by Plaintiffs chosen appraiser to schedule an inspection.
Plaintiffs appointed appraiser reported that he contacted both Plaintiff and his legal counsel, but there was no response to any communications from either.
On May 25, 2022-nine months after the Court entered an order compelling appraisal upon Plaintiffs motion-USAA GIC moved to vacate the order compelling appraisal because Plaintiff continued to refuse access to his property.
In response, counsel for Plaintiff filed a response and a Suggestion of Death.
Counsel for Plaintiff reported that “while investigating whether the facts stated in Defendant’s Motion are true, has discovered that the reason Plaintiff is unreachable is because Plaintiff is deceased.”
At the oral hearing on USAA GIC’s motion to vacate the appraisal order, the Court re-set the hearing and gave Plaintiffs’ counsel the opportunity to confirm Plaintiffs passing.
The day before the re-set oral hearing, counsel for Plaintiff filed a retraction of Plaintiff s previous Suggestion of Death, stating that “Plaintiffs’ counsel was finally able to physically locate Plaintiff, who is actually very much alive and has new contact information.
When counsel for Plaintiff failed to appear at the re-set hearing, the Court granted USAA GIC’s motion to vacate the appraisal order on July 28, 2022, and as a result, the abatement of discovery was lifted.
Prior to the abatement, on July 1, 2021, USAA GIC served Plaintiff with Interrogatories and Requests for Production.
As a result of the order vacating the order of abatement, on July 9, 2022, Plaintiffs objections and responses to USAA GIC’s discovery requests were due.
It is clear Plaintiff understood that the abatement of written discovery had been lifted as he served Interrogatories, Requests for Production, and Requests for Admission on USAA GIC on July 19, 2022.
Plaintiff completely failed to serve his answers and responses as required by Tex.R.Civ.P. 197.2(a).
USAA GIC conferred with Plaintiff about his late discovery responses on numerous occasions, but Plaintiff never responded to USAA GIC or provided any responses. After these multiple attempts, USAA GIC filed its original motion to compel discovery responses on October 17,2022, setting a hearing on the motion for November 3, 2022.
On the morning of the oral hearing on USAA GIC’s motion to compel, counsel for Plaintiff filed a response at 10:04 a.m. stating the following: “Plaintiffs’ Counsel experienced the utmost difficulty in communicating with Plaintiff in acquiring answers, documents and other responsive material. Specifically, Plaintiff has not responded to Plaintiffs Counsel’s diligent and persistent attempts to reach Plaintiff and confer over discovery. Plaintiffs’ Counsel has been unsuccessful in this endeavor because Plaintiff has been unreachable. Plaintiffs’ Counsel informs while attempting to facilitate Plaintiffs compliance with discovery requirements the reason Plaintiff is unreachable is because Plaintiff is deceased. Plaintiffs’ Counsel is actively trying to locate heirs of Plaintiff s estate who may have an interest in the suit.”
In support of this response, counsel for Plaintiff cited the previously retracted Suggestion of Plaintiff s Death.
Within hours of Plaintiffs’ counsel re-asserting Plaintiffs Suggestion of Death, Plaintiffs’ counsel served discovery responses, including answers to Interrogatories, purportedly answered by Plaintiff.
These responses were served on USAA GIC fifteen (15) minutes prior to the oral hearing on USAA GIC’s motion to compel.
In light of the responses being provided to USAA GIC, albeit belated, the Court gave Plaintiff an opportunity to comply with his discovery obligations by resetting the hearing by one week, giving USAA GIC time to review the responses and raise any remaining concerns.
Prior to the re-set hearing on USAA GIC’s motion to compel, USAA GIC filed a renewed Motion to Compel, outlining inadequacies throughout Plaintiffs purported discovery responses.
Specifically, the court concluded that the Plaintiffs responses were deficient, incomplete, and effectively provided no answers to the requests. In addition, the Interrogatory answers were not verified by Plaintiff.

After multiple opportunities and hearings to comply with the Texas Rules of Civil Procedure, Plaintiff has completely failed to fulfill discovery obligations and has abused the discovery process. Under Tex.R.Civ.P. 215.1(c), Plaintiff has abused the discovery process by serving or incomplete answers to discovery requests and has effectively failed to answer discovery requests. Under Tex. R Civ. P. 215.1(b)(3), Plaintiff has abused the discovery process by failing to participate in the discovery process at all in this case.

In addition, counsel for Plaintiff violated Tex.R.Civ.P. 13 by signing and filing pleadings that were groundless, brought in bad faith, or brought for the purpose of harassment. Specifically, counsel for Plaintiff incorrectly filed a Suggestion of Plaintiff s Death, then retracted it, then re-asserted it. Under these circumstances, the Court has discretion to strike the Plaintiffs pleadings and dismiss the case under Tex.R.Civ.P. 215.2(b)(5).The Court determined that based on multiple violations of the Texas Rules of Civil Procedure and violations of the Court’s orders, there are no lesser sanctions that would fully promote compliance. The Court considered the availability of lesser sanctions, but given Plaintiffs repeated failure to comply with this Court’s orders and his discovery obligations, lesser sanctions would be ineffective to promote full compliance.

The court then struck Mitchell’s pleadings and dismissed his case with prejudice.
ZALMA OPINION

In my career I have been an adjuster testifying in an appraisal, an appraiser, counsel to an insured during an appraisal, and counsel to an insurer during an appraisal. The appraisal worked in most cases. The amount of loss was established by the appraisers quickly and fairly in most cases. Only once, during an appraisal, a contractor for the insured testified that at the request of the insured he participated in creating a fraudulent claim. As long as it is dealt with fairly by the parties and the appraisers, it fulfills the purpose for which it was included in the New York Standard Fire Insurance policy in the 1800’s and as long as the process is not abused it will be effective and useful to both insurer and insured.

(c) 2025 Barry Zalma & ClaimSchool, Inc.

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00:11:51
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May 26, 2026
He Who Acts as His Own Lawyer Has an Idiot for a Client

Arsonist Tried To Represent Himself, Failed, and Sought Habeas Relief

Post number 5357

Read the full article at https://www.linkedin.com/pulse/he-who-acts-his-own-lawyer-has-idiot-client-barry-zalma-esq-cfe-d4bwc, See the full video at and at and at https://zalma.com/blog.

Karacson’s Arson for Profit Attempt Required Skill & Experience to Succeed

In Steve Ellis Karacson v. David Shaver, Warden, No. 25-1089, United States Court of Appeals, Sixth Circuit (May 20, 2026) Steve Karacson was convicted in Michigan state court of arson and insurance fraud after evidence showed he burned his own insured home. Investigators found multiple points of origin, gasoline odor, and evidence tying him to the scene, including cell-phone location data and a receipt showing he had purchased a gas can and gloves shortly before the fire.

FACTS

Karacson initially had appointed counsel, but his relationships with both appointed attorneys ...

00:08:55
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May 11, 2026
Severe Punishment for Failure to Obey Court Orders

Foolish to Repeatedly Disobey Court Orders

All That Remains For Trial Is Plaintiff’s Damages On Each Of These Claims And Establishing Proximate Causation Of Those Damages.

Post number 5348

See the full video at and at and at https://zalma.com/blog plus 5300 posts.

In Linh Wang v. Esurance Insurance Company, No. C24-0447-JCC, United States District Court, W.D. Washington, Seattle (May 1, 2026) John C. Coughenour, United States District Judge, found that throughout this case, culminating with its briefing on Plaintiff’s renewed motion and that Defendant has subjected Plaintiff to unnecessary motion practice for clearly discoverable information and made dubious representations (including to the Court).

FACTUAL BACKGROUND

This case involves an underinsured/uninsured motorist insurance bad faith claim arising from a 2017 motor vehicle collision. The plaintiff, Linh Wang, alleges that Esurance Insurance ...

00:08:27
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May 08, 2026
Ambiguous Contract to Repair not an Assignment

The Right to Negotiate with Insurer is Not an Assignment of Claims

Post number 5347

Read the full article at https://www.linkedin.com/pulse/ambiguous-contract-repair-assignment-barry-zalma-esq-cfe-2xppc, see the full video at https://rumble.com/v79is1s-ambiguous-contract-to-repair-not-an-assignment.html and at and at https://zalma.com/blog plus more than 5300 posts.

Nebraska Requires an Actual Assignment to Allow Contractor to Sue Insurer

In Millard Gutter Company, a corporation doing business as Millard Roofing and Gutter v. Farmers Mutual Insurance Company of Nebraska, also known as Farmers Mutual Insurance, also known as Farmers Mutual, No. A-24-818, Court of Appeals of Nebraska (May 5, 2026) Millard sued Farmers as an assignee of Jane Anzalone who had hired Millard Gutter to repair the roof of her home and agreed to allow Millard Gutter to coordinate with her insurer, Farmers Mutual, concerning reimbursement for repairs authorized under her insurance policy.

FACTUAL BACKGROUND

In ...

00:08:02
12 hours ago
Insurer Contended it was not Defrauded

Qui Tam Case Without Evidence to Prove Fraud Fails

Post number 5369

Read the full article at https://www.linkedin.com/pulse/qui-tam-insurer-contended-defrauded-barry-zalma-esq-cfe-pgfgc and at https://zalma.com/blog plus more than 5550 posts.

In People Of The State Of California Ex Rel. Heath & Yuen, APC v. Silver Bird Auto Leasing, LLC et al., B342847, California Court of Appeals, Second District, Eighth Division (June 5, 2026) Heath & Yuen, APC defended parties in an automobile collision case involving a McLaren and a tour van. After that case settled for $25,000, the firm filed a qui tam action under California’s Insurance Frauds Prevention Act (IFPA) against Silver Bird Auto Leasing, LLC, X-Law Group, PC, and Filippo Marchino. The firm alleged three fraudulent acts in the underlying litigation:

1. the complaint falsely stated the McLaren was making a “legal turn,”
2. respondents produced a fraudulent repair bill/estimate, and
3. respondents failed to disclose Marchino’s GEICO insurance and its payment for repairs....

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12 hours ago
Default Judgment Must be Respected by Federal Court

Full Faith and Credit Act Controlled

Read the full article at https://lnkd.in/evHXiiFE and at https://zalma.com/blog.

Posted on June 9, 2026 by Barry Zalma

Post number 5368

Posted on June 9, 2026 by Barry Zalma

In Prime Insurance Company, Inc. v. Medicab Transportation, LLC, Jason Rhodes, and Dale Johnson v. Prime Insurance Company, Inc and Prime Property & Casualty Insurance, Inc. No. 2:24-cv-421-SPC-KRH, United States District Court, M.D. Florida, Fort Myers Division (June 3, 2026) Medicab, a paratransit company, bought two policies in 2021: a Business Auto Policy from PPCI and a Commercial Liability Policy from Prime. Both policies, as originally written, appeared to cover injuries arising from loading and unloading patients from Medicab vans.

After a patient, Margaret St. Aubin, fell while being unloaded from a van and suffered injuries, her Estate made a $1 million demand. Prime and its claims administrator concluded that the Commercial Policy’s loading/unloading language had been included by mutual mistake, because...

post photo preview
June 09, 2026
Default Judgment Must be Respected by Federal Court

Full Faith and Credit Act Controlled

Read the full article at https://lnkd.in/evHXiiFE and at https://zalma.com/blog.

Posted on June 9, 2026 by Barry Zalma

Post number 5368

Posted on June 9, 2026 by Barry Zalma

In Prime Insurance Company, Inc. v. Medicab Transportation, LLC, Jason Rhodes, and Dale Johnson v. Prime Insurance Company, Inc and Prime Property & Casualty Insurance, Inc. No. 2:24-cv-421-SPC-KRH, United States District Court, M.D. Florida, Fort Myers Division (June 3, 2026) Medicab, a paratransit company, bought two policies in 2021: a Business Auto Policy from PPCI and a Commercial Liability Policy from Prime. Both policies, as originally written, appeared to cover injuries arising from loading and unloading patients from Medicab vans.

After a patient, Margaret St. Aubin, fell while being unloaded from a van and suffered injuries, her Estate made a $1 million demand. Prime and its claims administrator concluded that the Commercial Policy’s loading/unloading language had been included by mutual mistake, because...

post photo preview
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