Courts Must Never Speculate About Facts Not in Evidence
Post 5192
See the full video at https://rumble.com/v6z2r2s-duty-to-defend-is-not-without-limit.html and at https://youtu.be/3hhYFmKmGmA, and at https://zalma.com/blog plus more than 5,150 posts.
Injuries to Others at McDonald’s Do Not Provide Duty to Defend Suit by Employee Who Did Not Incur Bodily Injury
in McdDonald’s Corporation, et al v. Homeland Insurance Company Of New York, No. 23 C 16297, United States District Court, N.D. Illinois, Eastern Division (September 10, 2025) McDonald’s Corporation and McDonald’s USA LLC (collectively, “McDonald’s”) sued Defendant Homeland Insurance Company of New York (“Homeland”) challenging Homeland’s denial of coverage under a commercial general liability insurance policy.
BACKGROUND
A McDonald’s franchisee operated the McDonald’s restaurant (“Restaurant”) located in Chicago, Illinois. (hereinafter, “PRSOF”). From March 1, 2015 through March 1, 2018, the franchisee maintained a commercial general liability policy (“Policy”) issued by Homeland.
Section I of the Policy provides: “We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” Importantly, the Policy dictates that a bodily injury is covered only if takes place during the policy period, i.e., March 1, 2015, through March 1, 2018.
McDonald’s attempted to utilize the Policy after being sued by a Restaurant employee in the Circuit Court of Cook County, Sonia Acuna, et al. v. McDonalds, et al., No. 2019 CH 13477 (“Underlying Action”). Ultimately, Acuna was a party to four different complaints in the Underlying Action; her participation culminated with the filing of the third amended complaint on July 19, 2021. Since Acuna was the sole plaintiff in the Underlying Action who worked at the Restaurant, only her specific claims are relevant to this dispute.
After evaluating the lawsuit and the Policy, Homeland denied coverage because Acuna did not allege any “bodily injury” during the policy period.
DISCUSSION
The factual allegations in the amended complaint state a vicarious liability claim that falls within the coverage of the insurance policy, and therefore, plaintiff’s amended complaint was not an improper or unsupported attempt to plead into coverage.
The Operative Complaint includes allegations of specific incidents involving Acuna, which McDonald’s concedes cannot trigger Homeland’s duty to defend because they occurred outside the policy period, and more generalized allegations of harm.
An insurer has a duty to defend when the complaint’s allegations fall within or potentially fall within the coverage provisions of the policy. Because a complaint need not allege or use language affirmatively bringing the claims within the scope of the policy, the duty to defend is broader than the duty to indemnify.
The duty to defend depends on the facts underlying a complaint, not the specific legal theory on which the plaintiffs base their claims. Illinois courts follow the so-called “eight-corners rule” where courts determine the duty to defend by looking only within the four corners of the insurance policy and the four corners of the complaint for which defense is sought.
The insurer’s duty to defend, while broad, is not without limits. Notwithstanding the breadth of the duty, the claim against the insured must still contain explicit factual allegations that potentially fall within policy coverage. While the Court must examine the underlying claims with care, it cannot read into the complaint facts that are not there.
Generalized allegations are not enough
The gist of Acuna’s claims is that witnessing bodily injury inflicted on others resulted in psychological harm to her. The Operative Complaint, and all preceding complaints for that matter, were devoid of facts establishing that Acuna sought damages for a covered bodily injury that occurred during the policy period.
A Court may not find a duty to defend based on conjecture. The duty to defend may be broad, but Illinois law does not permit the court to speculate about possible factual scenarios that are absent from the claim itself. Even if it could, second-hand injuries such as fear and emotional distress caused by viewing other persons’ bodily injuries are simply not covered by the Policy.
Therefore the Court found no duty to defend and granted summary judgment in favor of Homeland.
ZALMA OPINION
The Illinois 8 corners rule made the decision of the Court obvious because the allegations of the complaint by Ms. Acuna did not fit the definitions of injury within the policy’s effective dates. Since there must be a bodily injury within the policy’s effective dates and no evidence existed the court properly refused to speculate and granted Homeland’s summary judgment.
(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 ...