Time Bar Defeats Suits Against Insurer
Post 5247
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In Kevin J. Labudde v. The Phoenix Insurance Company, No. 7:21-CV-197-BO-BM, United States District Court, E.D. North Carolina, Southern Division (December 12, 2025) Defendant The Phoenix Insurance Company (Phoenix) moved for summary judgment, moved to exclude the testimony of Donald Dinsmore and Jerome Redmond, and moved to seal certain documents.
FACTS
Kevin J. Labudde’s home was damaged by Hurricane Matthew on October 8, 2016. He discovered additional mold damage in January 2017 and hired a contractor, who filed an insurance claim with Phoenix Insurance Company. Phoenix found hail damage (covered by the policy) but determined the cost was below the deductible and denied coverage for water intrusion and mold, citing policy exclusions for seepage.
Second Claim:
On December 13, 2019, water again intruded into the property. Labudde filed a second claim. Phoenix’s adjuster, Erin Crane, could not determine the water’s source and hired Vertex Engineering. Vertex concluded that the damage was due to construction defects, not a covered peril. Phoenix denied coverage for water intrusion but paid for mold remediation (up to the policy limit) and roof replacement due to hail.
Lawsuit:
Labudde sued Phoenix on September 9, 2021, alleging breach of contract, unfair claims settlement practices under North Carolina’s Unfair and Deceptive Trade Practices Act (UDTPA), and common law bad faith.
LAW – STATUTE OF LIMITATIONS
Breach of Contract & Bad Faith:
Both claims have a three-year statute of limitations, starting from the date of loss. Since the initial damage occurred in 2016 and the lawsuit was filed in 2021, these claims are time-barred.
Unfair Claims Settlement Practices (UDTPA):
This claim has a four-year statute of limitations, starting when the insurer denies coverage. The court found the claim time-barred as to the 2017 claim, but not clearly time-barred for the 2019 claim, so it allowed the 2019-related UDTPA claim to proceed.
Unfair and Deceptive Trade Practices (UDTPA)
To prove a UDTPA violation, a plaintiff must show:
1. An unfair or deceptive act or practice
2. In or affecting commerce
3. That proximately caused injury.
A practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. A practice is deceptive if it has the capacity or tendency to deceive; proof of actual deception is not required.
If substantial aggravating circumstances accompany a breach of contract, then those circumstances can create a UDTPA claim.
The court found that Phoenix’s investigation and communication regarding the 2019 claim were adequate. Phoenix hired an outside expert, considered Labudde’s input, and communicated its decision. There was no evidence that Phoenix misled the engineer, withheld information, or failed to respond in a timely manner.
Expert Testimony
The court excluded portions of the plaintiff’s expert testimony on the UDTPA claim, finding it amounted to legal conclusions rather than helpful expert opinion.
Motion to Seal
The court granted Phoenix’s motion to seal certain documents containing proprietary business information, finding the need for confidentiality outweighed the public’s right of access.
CONCLUSION
The court granted summary judgment for Phoenix on all claims except the UDTPA claim related to the 2019 insurance claim, which was not clearly time-barred but ultimately failed on the merits. The court also granted the motion to seal certain documents and excluded some expert testimony.
ZALMA OPINION
Insurance claims created by a contractor rather than an insurance professional like a Public Insurance Adjuster or a lawyer, are often questionable. By the time Phoenix was sued the statute of limitations of the first claim had run and the second claim was not due to an insured against peril. When an insured is upset with the result of a claim he or she should consult with either a public insurance adjuster or an attorney. If the insurance professional suggests the claim denial was wrong then, before the running of the statute of limitations or a private limitation of action provision and then retain counsel to sue promptly. The summary judgment was granted because the insured did not follow that advice.
(c) 2025 Barry Zalma & ClaimSchool, Inc.
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Formulaic Recitation Of The Elements Of Civil Conspiracy Are Insufficient
Post number 5320
See the full video at https://lnkd.in/gPACkgWq and at https://lnkd.in/gsaxij7D, and at https://zalma.com/blog plus more than 5300 posts.
In Hassan Fayad v. Liberty Mutual Insurance Company, et al., No. 2:25-cv-10930, United States District Court, E.D. Michigan, Southern Division (March 24, 2026) Plaintiff Hassan Fayad, the owner of several businesses providing transportation, diagnostics, testing, and therapy services, regularly billed insurance companies for these services, was arrested and tried for fraud, convicted, had the conviction overruled and sued the insurers and prosecutors he found responsible.
FACTUAL BACKGROUND
By January 2020, Liberty Mutual, Progressive, Allstate, and Esurance suspected fraudulent activity and filed a complaint with the Michigan Department of Attorney General (MDAG). The insurers alleged that Fayad and others billed Michigan auto insurance policies for profit without actually providing medically ...
Federal Courts Have Limited Jurisdiction
When all Parties Refuse Removal There is No Jurisdiction
Post number 5319
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In Beth Mayhew and Matthew Mayhew v. Vladimir Sadovyh, et al., No. 2:26-CV-04029-WJE, United States District Court, W.D. Missouri (April 6, 2026) Mayhew was involved in a trailer-truck accident with Vladimir Sadovyh, who was employed by Nova First, LLC and Globex Transport, Inc. Both companies owned the tractor-trailer involved.
FACTUAL BACKGROUND
Chubb and Mohave Transportation Insurance Company jointly issued an insurance policy covering Nova First, Globex, and Sadovyh, with EMA Risk Services acting as a third-party administrator.
Beth Mayhew sued Nova First, Globex, and Sadovyh for negligence in Missouri state court, and following a jury trial, a nuclear judgment was awarded to the Mayhews totaling ...
Ordinary Negligence is What Medical Professi0nal Liability Insures
Post number 5319
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Sexual Conduct Exclusion Doesn’t Apply When Doctor Negligently Uses His Own Sperm
In Integris Insurance Company v. Narendra B. Tohan, No. AC 47222, Court of Appeals of Connecticut (April 7, 2026) Integris Insurance Company, a medical professional liability insurer, initiated a declaratory action to determine its duty to defend and indemnify Narendra B. Tohan, a physician licensed in Connecticut, in a separate negligence action alleging medical misconduct.
FACTUAL BACKGROUND
In 2019, Kayla Suprynowicz and Reilly Flaherty (civil action plaintiffs), who were strangers for most of their lives, discovered through a genetic testing company that they are half siblings.
INSURANCE POLICY
The policy defines “Professional Services” in relevant part as “any professional medical services within the ...
ZIFL – Volume 30, Issue 7 – April 1, 2026
THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL
Post number 5314
Posted on April 1, 2026 by Barry Zalma
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 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/ This issue contains the following articles about insurance fraud:
No One is Above the Law – Not Even a Police Officer
Police Officer Convicted for Fraud in Reporting an Accident Affirmed
Police Officer Should never Lie about Results of Chase
In State Of Ohio v. Anthony Holmes, No. 115123, 2026-Ohio-736, Court of Appeals of Ohio, Eighth District, Cuyahoga (March 5, 2026) a police officer appealed criminal conviction as a result of lies about a high speed chase.
Read the following article and the full issue of ZIFL at https://zalma.com/blog/wp-content/uploads/2026/03/ZIFL-04-01-2026-1.pdf...
ZIFL – Volume 30, Issue 7 – April 1, 2026
THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL
Post number 5314
Posted on April 1, 2026 by Barry Zalma
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 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/ This issue contains the following articles about insurance fraud:
No One is Above the Law – Not Even a Police Officer
Police Officer Convicted for Fraud in Reporting an Accident Affirmed
Police Officer Should never Lie about Results of Chase
In State Of Ohio v. Anthony Holmes, No. 115123, 2026-Ohio-736, Court of Appeals of Ohio, Eighth District, Cuyahoga (March 5, 2026) a police officer appealed criminal conviction as a result of lies about a high speed chase.
Read the following article and the full issue of ZIFL at https://zalma.com/blog/wp-content/uploads/2026/03/ZIFL-04-01-2026-1.pdf...
Posted on March 30, 2026 by Barry Zalma
Insurance Fraud, a Way to Reduce Violent Crime
Post number 5313
A Fictionalized True Crime Story of Insurance Fraud from an Expert who explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story helps 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.
She Taught Her Customers The Swoop And Squat:
Recently the California Insurance Department’s Fraud Division arrested a young woman in Los Angeles County for operating an insurance fraud school. She advertised her classes in the “Penny Saver” an advertising sheet distributed free to the public and a print version of Facebook, X Craig’s list. She had operated for several years teaching methods of committing automobile insurance fraud. Only after a police officer enrolled in one of her classes was she arrested.
Her defense ...