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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Anti-Public Adjuster Clause Is Effective in New York
Post number 5301
Read the full article at https://www.linkedin.com/pulse/public-adjusters-attempt-represent-insured-subject-zalma-esq-cfe-rubfc, see the video at and at and at https://zalma.com/blog plus more than 5300 posts.
Insurers May Contractually Prevent an Insured from Hiring a Public Adjuster
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FACTS
NJPA is a New Jersey-based public adjusting firm licensed in New York. The dispute centers on ...
Anti-Public Adjuster Clause Is Effective in New York
Post number 5301
Read the full article at https://www.linkedin.com/pulse/public-adjusters-attempt-represent-insured-subject-zalma-esq-cfe-rubfc, see the video at and at and at https://zalma.com/blog plus more than 5300 posts.
Insurers May Contractually Prevent an Insured from Hiring a Public Adjuster
In Peter Barbato & North Jersey Public Adjusters Inc. v. Interstate Fire & Casualty Company, et al, No. 25-cv-5312 (JGK), United States District Court, S.D. New York (December 15, 2025) the plaintiffs, Peter Barbato and North Jersey Public Adjusters, Inc. (“NJPA”), filed suit against several insurance companies, including Interstate Fire & Casualty Company, Independent Specialty Insurance Company, and certain Underwriters at Lloyd’s of London.
FACTS
NJPA is a New Jersey-based public adjusting firm licensed in New York. The dispute centers on ...
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Post number 5300
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Acting as Your Own Lawyer is Foolish
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In Lee Lifeng Hsu and Jane Yuchen Hsu v. State Farm Fire And Casualty Company, C. A. No. N24C-09-020 CLS, Superior Court of Delaware (February 27, 2026) a claim to State Farm who paid approximately $61,000 after assessments but denied coverage for additional items including ceramic tiles, the kitchen floor ceiling, underlayment plywood, and numerous personal property items resulted in suit by the Hsu’s acting in pro per.
Facts
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Insurance Condition Requires Following the Intent of the Parties
Post number 5307
Principles of Contract Interpretation Compels Reading Contract as Written
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In Eastside Floor Supplies, Ltd. v. SCS Agency, Inc., Hanover Insurance Company, et al., No. 2024-01501, Index No. 609883/19, 2026 NY Slip Op 01488, Supreme Court of New York, Second Department (March 18, 2026)
In May 2019, a fire damaged business personal property belonging to the plaintiffs, which was stored in portable storage containers at their Manhattan premises. At the time of the fire, the plaintiffs were insured under a businessowners insurance policy (BOP) issued by the defendant Hanover Insurance Company which provided general coverage for business personal property, and which included a specific extension for “Business Personal Property Temporarily in Portable Storage Units” (the portable storage ...
ERISA Saves Fraudulent Claims Suit
Post number 5306
Read the full article at https://www.linkedin.com/pulse/failure-provide-well-pled-facts-defeats-most-action-zalma-esq-cfe-b4zuc and at https://zalma.com/blog plus more than 5300 posts.
Allegations of Fraudulent Insurance Billing Must be Pleaded with Specificity
In Genesis Laboratory Management LLC v. United Healthcare Services, Inc. and Oxford Health Plans, Inc., No. 21cv12057 (EP) (JSA), United States District Court, D. New Jersey (March 13, 2026) Genesis Laboratory Management LLC (“Genesis”), a New Jersey-based molecular diagnostic and anatomic pathology laboratory, provided COVID-19 related testing services and submitted claims for reimbursement as an out-of-network provider to United Healthcare Services, Inc. (“United”) and Oxford Health Insurance, Inc. (“Oxford”). Metropolitan Healthcare Billing, LLC (“Metropolitan”), owned by the same individual as Genesis, handled the billing for Genesis.
FACTUAL BACKGROUND
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ERISA Saves Fraudulent Claims Suit
Post number 5306
Read the full article at https://www.linkedin.com/pulse/failure-provide-well-pled-facts-defeats-most-action-zalma-esq-cfe-b4zuc and at https://zalma.com/blog plus more than 5300 posts.
Allegations of Fraudulent Insurance Billing Must be Pleaded with Specificity
In Genesis Laboratory Management LLC v. United Healthcare Services, Inc. and Oxford Health Plans, Inc., No. 21cv12057 (EP) (JSA), United States District Court, D. New Jersey (March 13, 2026) Genesis Laboratory Management LLC (“Genesis”), a New Jersey-based molecular diagnostic and anatomic pathology laboratory, provided COVID-19 related testing services and submitted claims for reimbursement as an out-of-network provider to United Healthcare Services, Inc. (“United”) and Oxford Health Insurance, Inc. (“Oxford”). Metropolitan Healthcare Billing, LLC (“Metropolitan”), owned by the same individual as Genesis, handled the billing for Genesis.
FACTUAL BACKGROUND
United and Oxford, who administer both ERISA and ...
