Breach of Contract is not a Tort
It Doesn’t Pay to Over Charge a Suit Against an Insurer
Post 5116
Read the full article at https://lnkd.in/geM76MRe, see the full video at https://lnkd.in/gRWJRk9u and at https://lnkd.in/gVfRpfA5, and at https://zalma.com/blog plus more than 5100 posts.
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.
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 ibrary – https://lnkd.in/gwEYk.
Motions in Limine Used to Limit Trial and Expert Testimony
Post 5116
See the full video at https://lnkd.in/ghvqp4Qi and at https://lnkd.in/gjsi8yGe and at https://zalma.com/blog plus more than 5100 posts.
Trial Judge Must Limit Experts to Testimony that will Aid the Jury
The case brought by Plaintiff Gary Cawley and others against American Financial Security Life Insurance Company and others was before United States District Court for the District of Arizona’s Honorable Steven P. Logan, United States District Judge.
In Gary Cawley, et al. v. American Financial Security Life Insurance Company, et al., No. CV-22-00823-PHX-SPL, United States District Court, D. Arizona (July 2, 2025) Judge Logan resolved dozens of motions in limine filed by the parties.
Motions in Limine
Judge Logan issued orders relating to various motions in limine filed by both Plaintiffs and Defendant recognizing that a motion in limine is a procedural mechanism to limit testimony or evidence in a particular area and the practice has developed ...
A Court Will Never Accept Legal Conclusions in a Suit
Post 5115
A Contract Cannot Legally Bind A Person Or Entity Which Is Not A Party To The Contract.
See the full video at https://lnkd.in/g3aY9Vdc and at https://lnkd.in/gnYgSbQW and at https://zalma.com/blog plus more than 5100 posts.
The plaintiff, Nataly Gasova, claimed a breach of contract related to an insurance policy which IISS sold to her. IISS moved to dismiss the complaint, arguing inter alia that there was no contract between these parties. Gasova moved to amend her complaint to abandon her breach of contract claim and instead bring claims related to the advertising and sale of the insurance policy.
In Nataly V. Gasova v. Intact Insurance Specialty Solutions, Civ. No. 1:24-CV-2279, United States District Court, M.D. Pennsylvania (June 26, 2025) Intact Insurance Specialty Solutions (“IISS”) moved the court to dismiss the suit.
Background
On November 4, 2023, Gasova was involved in an automobile accident while working as a rideshare driver. ...
Statutory Penalties Must be Based on Evidence
Without Sufficient Evidence Penalty Assessment was Wrongful
Post 5114
See the full video at https://lnkd.in/gdj-iHja and at https://lnkd.in/gxegeJPB, and at https://zalma.com/blog plus more than 5100 posts.
When an appeal involved issues concerning the statutory penalties that apply to an insurer who knowingly or arbitrarily fails to pay a settlement to a third-party claimant within 30 days after a settlement agreement is reduced to writing The plaintiff, James Bridges, Sr., settled his claims arising from an automobile accident for $450,000. The trial court found that the settlement amount was not paid timely and applied La. R.S. 22:1892 to the penalty claim, imposing a penalty of $225,000 on one of the insurance company defendants. The insurers appealed.
In James Bridges, SS. v. Chubb Indemnity Insurance Company, Ace American Insurance Company, Southeast Louisiana Flood Protection Authority-East, East Jefferson Levee District, Deidrick Green, And Government Employees ...
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...
