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.
Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos.
Subscribe to my substack at https://barryzalma.substack.com/subscribe
Go to X @bzalma; Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01; Go to Barry Zalma videos at Rumble.com at https://rumble.com/account/content?type=all; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg
Go to the Insurance Claims Library – https://lnkd.in/gwEYk
Concurrent Cause Doctrine Does Not Apply When all Causes are Excluded
Post 5119
Death by Drug Overdose is Excluded
See the full video at https://lnkd.in/geQtybUJ and at https://lnkd.in/g_WNfMCZ, and at https://zalma.com/blog plus more than 5100 posts.
Southern Insurance Company Of Virginia v. Justin D. Mitchell, et al., No. 3:24-cv-00198, United States District Court, M.D. Tennessee, Nashville Division (October 10, 2024) Southern Insurance Company of Virginia sought a declaratory judgment regarding its duty to defend William Mitchell in a wrongful death case pending in California state court.
KEY POINTS
1. Motion for Judgment on the Pleadings: The Plaintiff moved for judgment on the pleadings, which was granted in part and denied in part.
2. Duty to Defend: The court found that the Plaintiff has no duty to defend William Mitchell in the California case due to a specific exclusion in the insurance policy.
3. Duty to Indemnify: The court could not determine at this stage whether the Plaintiff had a duty to ...
GEICO Sued Fraudulent Health Care Providers Under RICO and Settled with the Defendants Who Failed to Pay Settlement
See the full video at https://lnkd.in/gDpGzdR9 and at https://lnkd.in/gbDfikRG, and at https://zalma.com/blog plus more than 5100 posts.
Post 5119
Default of Settlement Agreement Reduced to Judgment
In Government Employees Insurance Company, Geico Indemnity Company, Geico General Insurance Company, and Geico Casualty Company v. Dominic Emeka Onyema, M.D., DEO Medical Services, P.C., and Healthwise Medical Associates, P.C., No. 24-CV-5287 (PKC) (JAM), United States District Court, E.D. New York (July 9, 2025)
Plaintiffs Government Employees Insurance Company and other GEICO companies (“GEICO”) sued Defendants Dominic Emeka Onyema, M.D. (“Onyema”), et al (collectively, “Defendants”) alleging breach of a settlement agreement entered into by the parties to resolve a previous, fraud-related lawsuit (the “Settlement Agreement”). GEICO moved the court for default judgment against ...
ZIFL – Volume 29, Issue 14
Post 5118
See the full video at https://lnkd.in/geddcnHj and at https://lnkd.in/g_rB9_th, and at https://zalma.com/blog plus more than 5100 posts.
You can read the full 20 page issue of the July 15, 2025 issue at https://lnkd.in/giaSdH29
THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL
This issue contains the following articles about insurance fraud:
The Historical Basis of Punitive Damages
It is axiomatic that when a claim is denied for fraud that the fraudster will sue for breach of contract and the tort of bad faith and seek punitive damages.
The award of punitive-type damages was common in early legal systems and was mentioned in religious law as early as the Book of Exodus. Punitive-type damages were provided for in Babylonian law nearly 4000 years ago in the Code of Hammurabi.
You can read this article and the full 20 page issue of the July 15, 2025 issue at https://zalma.com/blog/wp-content/uploads/2025/07/ZIFL-07-15-2025.pdf
Insurer Refuses to Submit to No Fault Insurance Fraud
...
Rulings on Motions Reduced the Issues to be Presented at Trial
Read the full article at https://lnkd.in/gwJKZnCP and at https://zalma/blog plus more than 5100 posts.
CASE OVERVIEW
In Richard Bernier v. State Farm Mutual Automobile Insurance Company, No. 4:24-cv-00002-GMS, USDC, D. Alaska (May 28, 2025) Richard Bernier made claim under the underinsured motorist (UIM) coverage provided in his State Farm policy, was not satisfied with State Farm's offer and sued. Both parties tried to win by filing motions for summary judgment.
FACTS
Bernier was involved in an auto accident on November 18, 2020, and sought the maximum available UIM coverage under his policy, which was $50,000. State Farm initially offered him $31,342.36, which did not include prejudgment interest or attorney fees.
Prior to trial Bernier had three remaining claims against State Farm:
1. negligent and reckless claims handling;
2. violation of covenant of good faith and fair dealing; and
3. award of punitive damages.
Both Bernier and State Farm dispositive motions before ...
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
See the full video at https://lnkd.in/g-f6Tjm5 and at https://lnkd.in/gx3agRzi, and at https://zalma.com/blog plus more than 5050 posts.
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 ...