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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Convicted Criminal Seeks to Compel Receiver to Protect his Assets
Post number 5291
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The Work of a Court Appointed Receiver is Constitutionally Protected
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Facts
In September 2021, the State of California filed felony charges against Simon Semaan, alleging violations of Insurance Code section 11760(a) for making...
When There are Two Different Other Insurance Clauses They Eliminate Each Other and Both Insurers Owe Indemnity Equally
Post number 5289
In Great West Casualty Co. v. Nationwide Agribusiness Insurance Co., and Conserv FS, Inc., and Timothy A. Brennan, as Administrator of the Estate of Pat- rick J. Brennan, deceased, Nos. 24-1258, 24-1259, United States Court of Appeals, Seventh Circuit (February 11, 2026) the USCA was required to resolve a dispute that arose when a tractor-trailer operated by Robert D. Fisher (agent of Deerpass Farms Trucking, LLC-II) was involved in a side-impact collision with an SUV driven by Patrick J. Brennan, resulting in Brennan’s death.
Facts
Deerpass Trucking, an interstate motor carrier, leased the tractor from Deerpass Farms Services, LLC, and hauled cargo for Conserv FS, Inc. under a trailer interchange agreement. The tractor was insured by Great West Casualty Company with a $1 million policy limit, while the trailer was insured by Nationwide Agribusiness Insurance Company with a $2 million ...
Opiod Producer Seeks Indemnity from CGL Insurers
Post number 5288
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Insurers Exclude Damages Due to Insured’s Products
In Matthew Dundon, As The Trustee Of The Endo General Unsecured Creditors’ Trust v. ACE Property And Casualty Insurance Company, et al., Civil Action No. 24-4221, United States District Court, E.D. Pennsylvania (February 10, 2026) Matthew Dundon, trustee of the Endo General Unsecured Creditors’ Trust, sued multiple commercial general liability (CGL) insurers for coverage of opioid-related litigation involving Endo International PLC a pharmaceutical manufacturer.
KEY FACTS
Beginning as early as 2014, thousands of opioid suits were filed by governments, third parties, and individuals alleging harms tied to opioid manufacturing and marketing.
Bankruptcy & Settlements
Endo filed Chapter 11 in August 2022; before bankruptcy it ...
Passover for Americans
Posted on February 19, 2026 by Barry Zalma
“The Passover Seder For Americans”
For more than 3,000 years Jewish fathers have told the story of the Exodus of the enslaved Jews from Egypt. Telling the story has been required of all Jewish fathers. Americans, who have lived in North America for more than 300 years have become Americans and many have lost the ability to read, write and understand the Hebrew language in which the story of Passover was first told in the Torah. Passover is one of the many holidays Jewish People celebrate to help them remember the importance of G_d in their lives. We see the animals, the oceans, the rivers, the mountains, the rain, sun, the planets, the stars, and the people and wonder how did all these wonderful things come into being. Jews believe the force we call G_d created the entire universe and everything in it. Jews feel G_d is all seeing and knowing and although we can’t see Him, He is everywhere and in everyone.We understand...
Passover for Americans
Posted on February 19, 2026 by Barry Zalma
Read the full article at https://www.linkedin.com/pulse/passover-americans-barry-zalma-esq-cfe-5vgkc.
“The Passover Seder For Americans”
For more than 3,000 years Jewish fathers have told the story of the Exodus of the enslaved Jews from Egypt. Telling the story has been required of all Jewish fathers. Americans, who have lived in North America for more than 300 years have become Americans and many have lostthe ability to read, write and understand the Hebrew language in which the story of Passover was first told in the Torah.
Passover is one of the many holidays Jewish People celebrate to help them remember the importance of G_d in their lives. We see the animals, the oceans, the rivers, the mountains, the rain, sun, the planets, the stars, and the people and ...
You Get What You Pay For – Less Coverage Means Lower Premium
Post number 5275
Posted on January 30, 2026 by Barry Zalma
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When Experts for Both Sides Agree That Two Causes Concur to Cause a Wall to Collapse Exclusion Applies
In Lido Hospitality, Inc. v. AIX Specialty Insurance Company, No. 1-24-1465, 2026 IL App (1st) 241465-U, Court of Appeals of Illinois (January 27, 2026) resolved the effect of an anti-concurrent cause exclusion to a loss with more than one cause.
Facts and Background
Lido Hospitality, Inc. operates the Lido Motel in Franklin Park, Illinois. In November 2020, a windstorm caused one of the motel’s brick veneer walls to collapse. At the time, Lido was insured under a policy issued by AIX Specialty Insurance Company which provided coverage for windstorm damage. However, the policy contained an exclusion for any loss or damage directly or indirectly resulting from ...
