Notice of Claim Later than 60 Days After Expiration is Too Late
Post 5089
Injury at Massage Causes Suit Against Therapist
Read the full article at https://lnkd.in/gziRzFV8, see the full video at https://lnkd.in/gF4aYrQ2 and at https://lnkd.in/gqShuGs9, and at https://zalma.com/blog plus more than 5050 posts.
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 conduct, and the customer eventually sued on those allegations. Plaintiff made an insurance claim related to the incident, and Hiscox denied coverage.
According to the insurance contract Plaintiff was obligated to give Hiscox written notice of any claim “no later than 60 days after the end of the policy period.” In a letter denying Plaintiff’s claim, Hiscox explained that Plaintiff first reported the claim to Hiscox “on or about October 27, 2020 (94 days after policy expiration), [and therefore] the insuring agreement [was] not triggered and coverage under the Professional Liability Coverage Part [was] unfortunately precluded.”
Plaintiff sued asserting that Hiscox’s erroneous and vexatious refusal to provide coverage under the applicable policy, without cause or excuse, has cost Plaintiff significantly.
ANALYSIS
Hiscox argued the vexatious-refusal claim failed because Plaintiff did not allege that it satisfied its obligations under the applicable insurance agreement. More specifically, the insurance agreement required Plaintiff to notify Hiscox of its claim before September 23, 2020, and according to the Complaint, Plaintiff did not do so.
Because the insurance coverage was never triggered by timely notice, Hiscox argued that its refusal to pay cannot be considered vexatious under the facts alleged, and therefore, Plaintiff has failed to state a claim upon which relief can be granted.
In response Hiscox contended that the purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint. To withstand Hiscox’s Motion, Plaintiff’s Complaint must contain sufficient factual matter, which, when accepted as true and viewed in the light most favorable to the nonmoving party, states a claim to relief that is plausible on its face. Factual allegations must be enough to raise a right to relief above the speculative level.
A vexatious-refusal claim ultimately requires Plaintiff to prove:
1. the existence of the insurance policy;
2. the insurance company’s refusal to pay; and
3. such refusal was without reasonable cause or excuse.
The Court concluded a vexatious-refusal claim requires an allegation that the insurer’s refusal to be “without reasonable cause or excuse.” This element requires Plaintiff to show that it upheld its end of the bargain as set forth in the insurance agreement. Failing to allege as much in the complaint provides grounds for dismissal under Rule 12(b)(6).
Plaintiff’s Complaint contains no allegation – general or otherwise – that Plaintiff complied with its obligations under the insurance contract at issue. A district court need not conjure up unpled allegations to save a complaint. Therefore, the Court granted Hiscox’s Motion to Dismiss.
The Court found for various other problems with the pleading and the withdrawal of Plaintiff’s counsel, that the better course is to dismiss this entire matter without prejudice. Doing so will allow Plaintiff sufficient time to find and retain new counsel, preserve Plaintiff’s ability to file a new complaint that sufficiently states a claim upon which relief can be granted, and give Plaintiff another opportunity to adequately serve all the defendants named therein.
ZALMA OPINION
Insurance law suits require a lawyer with knowledge of the minimal requirements of the law and the insurance contract. The complaint, as originally alleged, named a defendant who was not served, failed to allege a timely report of claim, and counsel withdrew before the motion was heard. By dismissing without prejudice the court gave the Plaintiff a second byte at the apple if it can find competent counsel to file a better suit. A trial court being kind to the Plaintiff.
(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 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
Fraud Eliminates Right to No Fault Benefits
See the full video at https://lnkd.in/gDfamQWQ and at https://lnkd.in/g4BvnMk2, and at https://zalma.com/blog plus more than 5050 posts.
Post 5091
Court Eliminates an Attempt to Defraud No Fault Placement Facility
Aric Lynn Holloway II (plaintiff), appealed the stipulated order of dismissal in favor of defendant-appellee, Citizens Insurance Company of the Midwest (defendant).
In Aric Lynn Holloway II, et al v. Memberselect Insurance Company et al, Michigan Automobile Insurance Placement Facility, No. 367611, Court of Appeals of Michigan (May 29, 2025) the plaintiff attempted to convince the Court of Appeals to allow his fraud to succeed.
In a case involving issues of insurance claims, alleged fraud, and the eligibility for Personal Injury Protection (PIP) benefits the Court of Appeals affirmed the trial court.
FACTUAL BACKGROUND
The case arises from a car accident where the plaintiffs, Holloway and his friends, were rear-ended by another vehicle that fled the scene. Holloway ...
False Report of Theft of Vehicle Established
Post 5090
See the full video at https://lnkd.in/g-u7tmVR and at https://lnkd.in/gQWkDv23 and at https://zalma.com/blog plus more than 5050 posts.
Creating a Fake Theft of Vehicle and Insurance Claim is a Crime
Shonda Brown faced multiple charges, including felonies related to false reporting and insurance fraud changed to class A misdemeanors such as tampering with public records and making false statements.
The case arose from allegations that Brown paid an informant to move her inoperable vehicle and then reported it stolen to the NYPD, despite evidence suggesting the vehicle had been tampered with and was found in a damaged state.
In The People of the State of New York v. Shonda Brown, Index No. CR-024423-24KN, 2025 NY Slip Op 25122, Criminal Court of the City of New York, Kings County (May 23, 2025) the Criminal Court concluded that the charges were appropriately filed and rejected Brown’s motion to dismiss.
Sufficiency of the Accusatory Instrument
The ...
ZIFL – Volume 29, Issue 11
The Source for the Insurance Fraud Professional
Posted on June 2, 2025 by Barry Zalma
Post 5087
See the full video at and at
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
See the full video at https://lnkd.in/gw-Hgww9 and at https://lnkd.in/gF8QAq4d, and at https://zalma.com/blog plus more than 5050 posts.
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 ...
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 ...
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...
