Notice of Claim Later than 60 Days After Expiration is Too Late
Post 5089
Injury at Massage Causes Suit Against Therapist
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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.
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Post 4846
Posted on September 17, 2026 by Barry Zalma
See the full video at https://lnkd.in/g8rh3JBX and https://lnkd.in/gmkdy-9C, In United States Of America v. Thomas Addaquay, Nos. 25-10609, 25-10611, United States Court of Appeals, Eleventh Circuit (September 9, 2026) the Eleventh Circuit affirmed all challenged convictions, the 150-month aggregate sentence, and the challenged $4,123,474.55 restitution award.
FACTS
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Post 5489
Posted on September 14, 2026 by Barry Zalma
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Luis Manuel Garcia Salcedo, resulted in a $6 million settlement. Non-party Jose Hernandez allegedly worked as an assistant manager at Subin, operated Hernandez Associates, and owned litigation-funding companies that shared office space with Subin and provided services to its clients.
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Post 4568
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A Party Cannot Designate One Witness While Submitting An Undifferentiated Product Of That Witness And An Undesignated Collaborator.
Post 4568
In Dustin Cain; Amanda Cain v. State Farm Fire and Casualty Company, No. 25-60442, United States Court of Appeals, Fifth Circuit (October 16, 2026) Dustin and Amanda Cain sought homeowners’ insurance benefits after a tree fell on their Mississippi home on August 27, 2022. State Farm concluded that the tree caused only a roof puncture and that other damage resulted from excluded long-term conditions. It paid $10,042.90 and later an additional $3,130.08.
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Post 4866
Posted on October 21, 2026 by Barry Zalma
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After a related civil dispute, Progressive counsel allegedly submitted a false affidavit stating that Lightfoot had fraudulently received a $50,000 payment. A New Orleans police detective relied on the affidavit to obtain an arrest warrant, and Louisiana State Police Lieutenant Alan Arcana allegedly reported that Lightfoot had received the payment. Lightfoot was arrested in 2015 and charged with theft, insurance fraud, and perjury.
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