Breach of Contract is not a Tort
It Doesn’t Pay to Over Charge a Suit Against an Insurer
Post 5116
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In Kole Westwood and Keeley Westwood v. The Travelers Home And Marine Insurance Company and Aaron Harrigfeld, No. 2:24-cv-00719-JNP-DBP, United States District Court, D. Utah (June 30, 2025) the case against the engineer failed completely and the case against Travelers was limited to the claim that the insurance contract was breached.
CASE BACKGROUND
Plaintiffs Kole and Keeley Westwood are homeowners in Utah whose home was damaged in a severe winter storm. The roof buckled under the weight of snow and ice, causing water damage to the house.
Their insurer, Travelers, denied their claim based on an engineering inspection report prepared by Defendant Aaron Harrigfeld. The Westwoods allege that the report contained false representations about the history and condition of their roof.
LEGAL CLAIMS
The Westwoods filed a lawsuit seeking a judgment for the amount needed to restore their house to its pre-storm condition, along with various damages. Their complaint included two contract claims and three tort claims: negligent misrepresentation, conspiracy to commit fraud, and fraud. Mr. Harrigfeld moved to dismiss the three tort claims against him, and Travelers moved for judgment on the pleadings as to those same three claims.
COURT’S DECISION
The court granted both motions, dismissing the tort claims against Mr. Harrigfeld and Travelers. The court found that no party relied on the misrepresentations in Mr. Harrigfeld’s report, which is a necessary element for claims of negligent misrepresentation and fraud. The court also noted that the dispute is fundamentally about an alleged breach of contract, not tort misrepresentation.
REMAINING CLAIMS
All claims against Mr. Harrigfeld were dismissed, and Travelers prevailed on the tort claims against it. Only the contract claims against Travelers remain live.
ANALYSIS
Utah courts consider a claim for intentional misrepresentation as essentially a claim for fraud. As the court saw it, all theories suffer from a fatal defect: no one who received Mr. Harrigfeld’s flawed report – not Travelers, not the Westwoods – relied on the misrepresentations in that report. That is, no one took the misrepresentations about preexisting damage to be true and then suffered harm as a result of taking those misrepresentations as true.
To understand this defect, consider the elements of negligent misrepresentation and fraud. Under Utah law, negligent misrepresentation occurs when:
(1) a party carelessly or negligently makes a false representation expecting the other party to rely and act thereon,
(2) the [other party] actually relies on the statement, and
(3) [the other party] suffers a loss as a result of that reliance.
In addition, fraud requires a plaintiff to show:
(1) that a representation was made
(2) concerning a presently existing material fact
(3) which was false and
(4) which the representor either (a) knew to be false or (b) made recklessly, . . .
(5) for the purpose of inducing the other party to act upon it and
(6) that the other party, acting reasonably and in ignorance of its falsity,
(7) did in fact rely upon it
(8) and was thereby induced to act
(9) to that party’s injury and damage.
The parties’ dispute here concerns Travelers’ purported obligation to pay the Westwoods’ claim – a subject matter already covered by their insurance contract laying out the conditions under which Travelers is and is not obligated to pay a claim. The suit was limited to the claim that Travelers breached its contract.
ZALMA OPINION
Whether an insurer owes a claim under an insurance policy is a question of contract, not tort, not fraud, only contract terms. The Westwoods took a simple contract suit and tried to expand it into a tort claim, a fraud claim, but did not have the facts to support the tort claims. If their loss is covered by the Travelers policy they will be paid and if not, their attempt to make it a big tort suit failed.
(c) 2025 Barry Zalma & ClaimSchool, Inc.
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Happy Law Day
ZIFL – Volume 30, Issue 9 – May 1, 2026
Read the full article at https://www.linkedin.com/pulse/zalmas-insurance-fraud-letter-may-1-2026-barry-zalma-esq-cfe-2tywc, see the video at at and at https://zalma.com/blog plus more than 5300 posts.
THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL
ZIFL – Volume 30, Issue 9 – May 1, 2026
Zalma’s Insurance Fraud Letter (ZIFL) continues its 30th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year and is written by Barry Zalma.
DOJ Creates National Fraud Enforcement Division
Will the Feds Take on Insurance Fraud? Possibly as Part of a National Anti-Fraud Effort
On April 7, 2026, the Acting Attorney General, Todd Blanche, issued a memorandum establishing the Department of Justice National Fraud Enforcement Division (NFED). The memo describes an ambitious, but perhaps redundant, vision for this ...
When Abalone Died As a Result of Multiple Causes The Efficient Proximate Cause Requires Payment
Post number 5345
Read the full article at https://www.linkedin.com/pulse/efficient-proximate-cause-doctrine-saves-claim-barry-zalma-esq-cfe-yndlc, see the video at and at and at https://zalma.com/blog plus more than 5300 posts.
In American Abalone Farms, LLC v. Star Insurance Company et al., H052643, California Court of Appeals, Sixth District (April 27, 2026) the Court of Appeals dealt with an insurance coverage issue that required application of the efficient proximate cause doctrine.
FACTS
American Abalone Farms, LLC ("American Abalone" ) operates an aquaculture farm in Santa Cruz County, California, raising abalone in tanks. In August 2020, the CZU Lightning Complex Fires led to a prolonged power outage and road closures near the farm. As a result, the farm’s water pumps failed, causing the death of most of the ...
Breach of a Specific Condition Precedent Is a Complete Defense
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In United Services Automobile Association and State Farm Mutual Automobile Insurance Company v. Anthony Wenzell, 2026 CO 25 (Colo. Apr. 27, 2026) Anthony Wenzell was rear-ended in a car accident. He had a significant prior 2014 accident that required back surgery.
Wenzell claimed underinsured-motorist (UIM) benefits under three policies: (1) the tortfeasor’s liability policy, (2) his own primary UIM policy with State Farm, and (3) an excess UIM policy issued by USAA (under his brother’s policy, which contained an “other insurance” clause making USAA’s coverage excess over any collectible insurance).
After receiving the claims, both USAA and State Farm repeatedly requested that Wenzell execute comprehensive medical-release authorizations so they could obtain his full medical records and ...
It is Fraud to Make the Same Claim Twice
Read the full article at https://www.linkedin.com/pulse/fraud-make-same-claim-twice-barry-zalma-esq-cfe-c4g8c and at https://zalma.com/blog.
Chutzpah: After Being Paid for a New Roof Insured Makes Second Claim For Same Damages
Post number 5347
No One is Entitled to be Paid for the Same Loss Twice
In Mohammed Ali Khalili v. State Farm Lloyds, No. 14-25-00611-CV, Court of Appeals of Texas (April 30, 2026) Khalili maintained a State Farm Lloyds homeowners insurance policy for decades. In 2008 he filed a roof-damage claim; State Farm paid him to replace the entire roof (shingles and gutters). Khalili never replaced the roof and repeated his claim.
BACKGROUND
In 2021 he filed a second roof claim. State Farm’s inspectors found the roof “very old” with extensive non-storm-related damage. The claim was denied because (1) the damage did not exceed the deductible and (2) State Farm had already paid for a full roof replacement.
PROCEDURAL HISTORY
State Farm filed motion for summary...
It is Fraud to Make the Same Claim Twice
Read the full article at https://www.linkedin.com/pulse/fraud-make-same-claim-twice-barry-zalma-esq-cfe-c4g8c and at https://zalma.com/blog.
Chutzpah: After Being Paid for a New Roof Insured Makes Second Claim For Same Damages
Post number 5347
No One is Entitled to be Paid for the Same Loss Twice
In Mohammed Ali Khalili v. State Farm Lloyds, No. 14-25-00611-CV, Court of Appeals of Texas (April 30, 2026) Khalili maintained a State Farm Lloyds homeowners insurance policy for decades. In 2008 he filed a roof-damage claim; State Farm paid him to replace the entire roof (shingles and gutters). Khalili never replaced the roof and repeated his claim.
BACKGROUND
In 2021 he filed a second roof claim. State Farm’s inspectors found the roof “very old” with extensive non-storm-related damage. The claim was denied because (1) the damage did not exceed the deductible and (2) State Farm had already paid for a full roof replacement.
PROCEDURAL HISTORY
State Farm filed motion for summary...
What Must be Done after Notice of a Claim is Received by the Insurer
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A first party property policy does not insure property: it insures a person, partnership, corporation or other entity against the risk of loss of the property. Before an insured can make a claim for indemnity under a policy of first party property insurance the insured must prove that there was damage to property the risk of loss of which was insured by the policy. The obligation imposed on the insured ...
