Exclusions Defeat Claim for Defense & Indemnity
Genuine Dispute Dispels Claim of Bad Faith
Post 5167
See the full video at https://lnkd.in/gvGAeT7t and at https://lnkd.in/gh67UEyB.
In Diversified Restaurant Group, LLC, et al. v. Houston Casualty Company, et al., No. 25-cv-02344-EMC, United States District Court, N.D. California (July 31, 2025) Diversified Restaurant Group, LLC (DRG) and Golden Gate Bell, LLC (GGB) sued Houston Casualty Company (HCC), Pennsylvania Manufacturers Indemnity Company (PMIC), and Manufacturer’s Alliance Insurance Company (MAIC) around the denial of insurance coverage for a lawsuit filed by a former employee who alleged sexual harassment and assault by a supervisor.
Insurance Policies and Denial of Coverage:
DRG and GGB had insurance policies with PMIC and MAIC, which included general liability, workers’ compensation, and employer’s liability coverage. Both PMIC and MAIC denied coverage for the underlying lawsuit, citing various exclusions in their policies.
Exclusions:
The PMIC policy included Employment Related Practices (ERP) and Employment Liability (EL) exclusions, while the MAIC policy had a C.7 exclusion. These exclusions were used to justify the denial of coverage for the claims made in the underlying lawsuit.
UNDERLYING LAWSUIT:
The former employee’s lawsuit included claims of negligence, workplace sexual harassment, discrimination, and other related issues. The document details the specific allegations and the legal arguments surrounding the applicability of the insurance policy exclusions.
DUTY TO DEFEND:
The court emphasized that the duty to defend is broader than the duty to indemnify, but it is measured by the nature and kinds of risks covered by the policy. The court concluded that the insurers had no duty to defend the insureds in the underlying lawsuit due to the applicability of the exclusions .
The insurer’s duty to defend is not extinguished until the insurer negates all facts suggesting potential coverage. Thus, an insurer may be excused from a duty to defend only when the third party complaint can by no conceivable theory raise a single issue which could bring it within the policy coverage. However, the duty to defend is not not unlimited; it is measured by the nature and kinds of risks covered by the policy.
Insurance Coverage Interpretation
Under California law, interpretation of an insurance policy is a question of law and follows the general rules of contract interpretation. Therefore, the mutual intention of the parties at the time the contract is formed governs interpretation. If the policy language is clear and explicit, it governs. The clear and explicit meaning of these provisions, interpreted in their ordinary and popular sense, unless used by the parties in a technical sense or a special meaning is given to them by usage, controls judicial interpretation.
In determining whether a claim creates the potential for coverage under an insurance policy, the court is guided by the principle that interpretation of an insurance policy is a question of law and the mutual intention of the parties at the time the contract is formed governs interpretation.
DISCUSSION
Finally, although Insureds attempt to impose a new carve-out to the “arising out of” phrase in the ERP Exclusion, arguing that only claims between an employee and an employer (as opposed to harassment between two co-employees) are “employment related,” the Insureds fail to cite to any case that imposes such an exception. Instead, courts have repeatedly construed “arising out of” broadly, even when it is present in an exclusion.
Because all alleged conduct in the Underlying Action against Moreno falls under the ERP Exclusion coverage, the Insureds have failed to establish any potential coverage under the PMIC Agreement and thus have failed to state a claim for breach of contract with PMIC.
The False Imprisonment and Sexual Assault Claims are subject to the ERP Exclusion
The Court need not address Insurers’ argument contesting whether the claims of the Underlying Action are “occurrences” within the scope of coverage under Coverage A: whether or not they are “occurrences,” they would still be precluded by the ERP Exclusion.
Breach of Implied Contract and Breach of the Implied Covenant of Good Faith and Fair Dealing
A bad faith claim is subject to dismissal if the insurer shows a genuine dispute as to coverage. Given that ERP Exclusion and EL Exclusion of the PMIC Agreement and C.7 Exclusion of the MAIC Agreement apply to exclude coverage to DRG and GGB, the Insurers’ denial to continue defense and indemnification under its policy was reasonable and legally justified. As such, the Insureds cannot maintain a statutory bad faith claim against Insurers for its refusal to defend and indemnify. Accordingly, the claims for breach of implied contract and claim for breach of the implied covenant cannot proceed against MAIC or PMIC.
Court’s Decision:
The court granted the motion to dismiss filed by PMIC and MAIC, agreeing that the exclusions in the insurance policies precluded coverage for the claims made in the underlying lawsuit.
ZALMA OPINION
The USDC in an exceedingly long opinion reached the decision called for by the clear and unambiguous exclusions in the policies issued by the three insurer defendants resulting in the dismissal of the suit. The mere fact that a plaintiff sues for the tort of bad faith is not enough, facts and evidence, are required. Since the exclusions created a genuine dispute thereby eliminating the cause of action for bad faith.
You can find a permanent public version of the document here: https://public.fastcase.com/jaEE2PXzRXmZ99jOLMt1Iqfrihk%2bzXYKQAQqMk84Z%2bGq%2fci2oKl%2bGLBe8SNEAKEvYQtwr1H8F%2bUlbzuvGUGvLQ%3d%3d
(c) 2025 Barry Zalma & ClaimSchool, Inc.
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Insurance Expert May Not Testify to Speculative and Contains Unsupported Conclusions.
Posted on September 18, 2026 by Barry Zalma
See the full video at and at https://rumble.com/v7fmifw-expert-may-only-testify-to-what-experience-supports.html
In Michele A. Over, and The Estate Of Paul R. Over v. State Farm Mutual Automobile Insurance Company, and State Farm Fire And Casualty Company, Civil Action No. 23-cv-02243-PAB-STV, United States District Court, D. Colorado (September 14, 2026) Michele and Paul Over sued State Farm Fire and State Farm Auto over hail-damage and stolen-vehicle claims.
The operative dispute concerned State Farm Auto’s motion to exclude or limit opinions from plaintiffs’ insurance-industry expert, Aaron Castillo. Castillo.
Law
The proponent of expert testimony must establish by a preponderance of the evidence that an expert is qualified and that the opinions are helpful, sufficiently grounded, and reliably derived and applied. Experience-based opinions must explain how the...
150 Months in Prison for Tax Fraud
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
In United States Of America v. Thomas Addaquay, 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
Thomas Addaquay controlled United Consolidated Accounting and Business Services (UC), nominally a check-cashing business.
The government proved a three-stage tax-refund scheme that converted the resulting refund checks into usable funds through ...
Major Fraud Perpetrator Asserts Fifth Amendment Privilege to Avoid Prosecution
Post 5489
Posted on September 14, 2026 by Barry Zalma
Fraudster Refuses to Answer Questions About His Alleged Fraud
See the full video at https://lnkd.in/gvicAMDr and at https://lnkd.in/gvicAMDr
In Great American Insurance Co. v. Gemstone Property Management, LLC, et al., No. 23-cv-9100 (LJL), United States District Court, S.D. New York (September 8, 2026) Great American Insurance Company alleged that it was defrauded through a scheme in which Subin Associates, LLP recruited individuals to stage construction-site injuries, arranged unnecessary medical treatment and litigation funding, and pursued fraudulent personal-injury claims.
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.
After Great American ...
Employee Report of Fraud Results in Damages Suit After Qui Tam Suit Settled
No Statutory Hearing Right Arose Because No Dental Commission Complaint License Suspension, Revocation, Or Sanction Occurred.
Post 4855
Posted on October 2, 2026 by Barry Zalma
In Abbas Mohammadi et al. v. William M. Tong et al., No. AC 47598, Court of Appeals of Connecticut (September 29, 2026) Abbas Mohammadi owned and operated Columbia Dental, P.C., which provided dental services through multiple Connecticut offices; Columbia Oral Maxillofacial Imaging, LLC served as the billing entity.
From April 2012 to February 27, 2013, Columbia Dental employed Brittany Ames Mahoney as a dental assistant. During her employment, Mahoney claimed to have discovered certain billing irregularities, including, but not limited to, false and fraudulent reimbursement claims submitted to the Department of Social Services for services rendered to Medicaid beneficiaries. Mahoney filed a complaint and an affidavit in the United States District Court for the District of...
Another Anniversary for Barry Zalma, Inc
Posted on October 1, 2026 by Barry Zalma
From October 1, 1979 – 2026
Post 4854
Read the full issue of ZIFL at https://zalma.com/blog/wp-content/uploads/2026/09/ZIFL-10-01-2026.pdf Forty seven years ago today I left the world of the employed and became an entrepreneur by opening my own law firm. The law practice was incorporated shortly thereafter as Barry Zalma, Inc.
When I opened for business on October 1, 1979, I had no clients and no certainty that I would have any in the future. I had borrowed money from the bank to carry me through the first six months and was concerned about my ability to pay the loan with my third child about to be born.
Much to my surprise and pleasure, on October 1, 1979, at 8:10 a.m., the best claims handler in the London market, Alan Warboys, called from London and provided me with my first case as an independent lawyer to represent Certain Underwriters at Lloyd’s, London. He, and the Lloyd’s Underwriters he represented, showed faith in me as a lawyer and insurance expert. Alan is now, although ...
Defendants Successfully Moved for Summary Judgment
Post 4854
Posted on September 30, 2026 by Barry Zalma
In Jeffrey Wayne Phillips v. Creative Website Studios, et al., No. 5:23-CV-568-BO-BM, United States District Court, E.D. North Carolina, Western Division (September 28, 2026) the Court needed to rule on the order and memorandum and recommendation (“M&R”) of the Magistrate.
Jeffrey Wayne Phillips had contracted with Creative Website Studios and SR Telecommunications for website and hosting services. He alleged that defendants repeatedly billed him for hosting periods he had already paid for and later took down his website. Phillips claimed the outage prevented him from bidding on U.S. government security contracts and sought roughly $300 million in consequential damages.
LAW
Under North Carolina law, fraud requires a false material representation or concealment, intent and effect of deception, resulting damage, and reasonable reliance. Obtaining property by false pretenses similarly requires an ...