No Coverage if Home Vacant for More Than 60 Days
Failure to Respond To Counterclaim is an Admission of All Allegations
Post 5085
See the full video at https://lnkd.in/gbWPjHub and at https://lnkd.in/gZ9ztA-P, and at https://zalma.com/blog plus more than 5050 posts.
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 and Nationwide was served. Nationwide removed this action to federal court and on the same day, filed an Answer and a Counterclaim that sought declaratory judgment that there was no coverage under the Nationwide Policy for the February 26, 2022 fire loss, because the home in question was left vacant or unoccupied beyond a period of 60 days prior to the loss, in breach of a condition of the insurance coverage in question.
LEGAL STANDARD
District courts may enter default judgment against a properly served party under Federal Rule of Civil Procedure 55. Rule 55(a) provides for entry of default where “a party against whom a judgment or affirmative relief is sought has failed to plead or otherwise defend[.]”
All well-pleaded facts alleged in the complaint as to liability may be taken by the court as true.
DISCUSSION
Nationwide filed its Counterclaim on February 26, 2025 and Plaintiff has utterly failed to respond or otherwise appear or defend against the Counterclaim.
Because of silence from the Plaintiff and Counter Defendant the factual allegations in the Counterclaim were deemed admitted. Nationwide has sufficiently pled an action for declaratory judgment. The plain language of the policy provisions that there is no coverage for a fire at a house vacant and unoccupied for 60 or more days.
Therefore the Court awarded Nationwide the declaratory judgment relief sought in its Counterclaim that there is no coverage under the Nationwide Policy for the February 26, 2022 fire loss. This declaratory judgment forecloses Plaintiff's breach of contract claim based on Nationwide's declination to pay under the Nationwide Policy for the February 26, 2022 fire.
Nationwide was granted the declaratory judgment relief sought in its Counterclaim and the Court declares that there is no coverage under the Nationwide Policy for the February 26, 2022 fire loss, because the home in question was left vacant or unoccupied beyond a period of 60 days prior to the loss, in breach of a condition of the insurance coverage in question.
ZALMA OPINION
It is common practice for an insurer to exclude damage to a dwelling by fire if the dwelling is vacant and unoccupied for more than 60 days because the vacancy increases the risks of loss. The Plaintiff attempted to sue the insurer hoping it would give up only to find it fought back and sued for an order that it owed nothing. By her silence Plaintiff and her counsel decided it wasn't worth their time to argue against the insurer's Counterclaim. They were right and should have just dismissed their case.
(c) 2025 Barry Zalma & ClaimSchool, Inc.
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See the full video at https://lnkd.in/gWQQEySW and at https://lnkd.in/gyhdK6wv
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Post 5396
See the video and at https://rumble.com/v7ctgmq-the-great-jewel-theft.html at https://youtu.be/aRbQ2sJfGwA
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Post 5421
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Rescission for Material Misrepresentation
Post 5418
Posted on August 5, 2026 by Barry Zalma
An Insurer May Rescind An Insurance Policy Where The Applicant Made A Material Misrepresentation In The Application.
In Union Mutual Fire Insurance Company v. 844 Knickerbocker, LLC, et al. No. 2024-10359, Index No. 602824/22, 2026 NY Slip Op 04789, Supreme Court of New York, Second Department (July 29, 2026) Union Mutual Fire Insurance Company issued commercial insurance policies to 844 Knickerbocker, LLC, and Sanjaya Mallick based on applications stating that the insured property contained two apartment units. After an underlying personal injury action was filed, Union Mutual determined that the property actually contained three apartment units and rescinded the policies on the ground that the defendants had made a material misrepresentation in the applications.
LAW:
A misrepresentation is material if the insurer would not have issued the same policy, or would have issued it only on different terms, had the true ...
Rescission for Material Misrepresentation
Post 5418
Posted on August 5, 2026 by Barry Zalma
An Insurer May Rescind An Insurance Policy Where The Applicant Made A Material Misrepresentation In The Application.
In Union Mutual Fire Insurance Company v. 844 Knickerbocker, LLC, et al. No. 2024-10359, Index No. 602824/22, 2026 NY Slip Op 04789, Supreme Court of New York, Second Department (July 29, 2026) Union Mutual Fire Insurance Company issued commercial insurance policies to 844 Knickerbocker, LLC, and Sanjaya Mallick based on applications stating that the insured property contained two apartment units.
LAW:
A misrepresentation is material if the insurer would not have issued the same policy, or would have issued it only on different terms, had the true facts been disclosed. To establish materiality as a matter of law, the insurer must submit documentation of its underwriting practices, such as manuals, guidelines, bulletins, or rules addressing similar risks.
DISCUSSION/ANALYSIS:
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