Zalma on Insurance
Education • Business
Insurance Claims professional presents articles and videos on insurance, insurance Claims and insurance law for insurance Claims adjusters, insurance professionals and insurance lawyers who wish to improve their skills and knowledge. Presented by an internationally recognized expert and author.
Interested? Want to learn more about the community?
May 12, 2026
Bartender Shooting a Customer can be an Excluded Battery

Order Denying Insurer’s Motion to Dismiss Insured’s Third-Party Complaint Against Insurance Agency

Post number 5349

Insurance Agents Must Honestly Report Coverage In Policy Obtained

Read the full article at https://www.linkedin.com/pulse/bartender-shooting-customer-can-excluded-battery-zalma-esq-cfe-ngowc and at https://zalma.com/blog.

In Golden Bear Insurance Company v. SBD Enterprises, Inc. d/b/a America Wild West, SBD Enterprises, Inc. d/b/a America Wild West, Third-Party Plaintiff v. FMSI Upper Plains, L.C. d/b/a Revo Insurance Alliance, Nos. CV 25-71-BLG-DWM, CV 25-73-BLG-DWM. United States District Court, D. Montana, Billings Division (May 7, 2026)

FACTS

Two firearm-related incidents occurred at the America Wild West bar in Billings, Montana (Feb. 2023): (1) a patron (Xavier Buffalo) fatally shot Beau Harlan Beaumont in the parking lot after an altercation and removal from the bar; and (2) bartender David Simmons pointed a handgun at patrons Derek Coffman and Guadalupe Garza and fired at least once, striking no one.

Beaumont’s Estate, and Coffman/Garza, filed separate state-court suits against SBD Enterprises, Inc. (the bar operator) (the “Underlying Actions”). SBD tendered the suits to its insurer, Golden Bear Insurance Company, requesting defense and indemnity. Golden Bear denied coverage, invoking an assault-and-battery exclusion in the policy.

Golden Bear filed two federal declaratory judgment actions (May 2025) seeking rulings that it owes no duty to defend or indemnify. SBD counterclaimed against Golden Bear and impleaded the selling agency, FMSI Upper Plains, L.C. d/b/a Revo Insurance Alliance (“Revo”), alleging negligence and negligent misrepresentation if coverage is found lacking, and asserting Golden Bear is vicariously liable based on an alleged agency relationship with Revo. Golden Bear moved to dismiss under Rule 12(b)(6) (counterclaim) and to strike/dismiss the third-party complaint as improper under Rule 14(a).

LAW / RULES

Rule 12(b)(6) plausibility standard:

A claim must plead sufficient factual matter to state a plausible claim for relief; courts accept well-pled facts as true and draw reasonable inferences in the pleader’s favor.

Rule 8(a) pleading:

Requires a short and plain statement; courts may reject “shotgun pleadings” that obscure who did what, but minimal incorporation defects are not automatically fatal when the pleading is short and clear.
Montana insurance agency (procurement) framework:

Montana divides procurement into two steps.

(1) When the client solicits the agency to investigate/select among insurers, the agency acts as the client’s agent.

(2) Once the agency solicits and procures a specific policy from a particular insurer, the agency becomes the insurer’s agent for that procurement.

Rule 14(a) Impleader:

A defending party may implead a nonparty who is or may be liable for all or part of the claim against it. The third-party liability must be dependent on the outcome of the main claim and secondary/derivative—not merely factually related. Courts balance efficiency and consistent results against prejudice, complexity, and delay.

DISCUSSION / ANALYSIS

Counterclaim (agency/vicarious liability) survives Rule 12(b)(6):

Golden Bear argued SBD offered only conclusory allegations of an agency relationship with Revo. The court rejected a formalistic “incorporation” argument because the pleading was short, organized, and not a shotgun complaint.

Montana’s two-step procurement test supports plausibility:

Even if an agency acts for the insured in the initial “shopping” stage, SBD alleged Revo made representations about the specific insurance SBD was buying and about coverage for the types of claims later asserted. Those allegations plausibly imply Revo had solicited/procured the particular Golden Bear policy, placing the conduct in step two and thereby supporting an insurer–agent relationship.

Key pleaded facts the court relied on:

SBD told Revo it operated a bar selling alcohol and needed adequate insurance; Revo represented the purchased policy would cover general/liquor liability and the kinds of claims in the Underlying Actions; SBD relied on those representations. These are enough at the pleading stage to infer agency and vicarious-liability theories.

Although Revo could not be liable to Golden Bear in the coverage action, Revo may be liable to SBD for all or part of SBD’s exposure that results from an adverse coverage ruling. That makes the third-party claim sufficiently “dependent on” and “derivative of” the coverage determination for Rule 14 purposes.

The court acknowledged added complexity because the coverage issue may resolve at summary judgment while negligence claims may require more fact development. But the presence of SBD’s counterclaims already expands the case; early posture reduces delay concerns; neither side’s claims appeared frivolous. Efficiency and consistent results therefore outweigh prejudice.

CONCLUSION

The court denied Golden Bear’s motion to dismiss because SBD plausibly alleged an agency relationship between Revo and Golden Bear under Montana’s two-step procurement framework. The court also held SBD’s third-party negligence and negligent-misrepresentation claims against Revo are permissible under Rule 14(a) because they are contingent on, and derivative of, a no-coverage determination, and discretionary factors (efficiency, early timing, and lack of undue prejudice) favor impleader in this declaratory-judgment coverage dispute.

SBD Enterprises had alleged in its Third-Party Complaint against Golden Bear that “Revo was acting as Golden Bear’s agent in selling the [Golden Bear] Policy to SBD [Enterprises]” and that “Golden Bear is vicariously liable to SBD [Enterprises].”

Golden Bear unsuccessfully argued that these legal conclusions do not allege any specific conduct or agreement demonstrating the purported agency relationship between Revo and Golden Bear.

ZALMA OPINION

Golden Bear’s assault and battery exclusion would probably succeed at summary judgment establishing lack of coverage for shooting a customer in the insured’s bar. If the agent sold the policy as not having that exclusion, there could be a viable case against the purported agent and Golden Bear could be exposed by its agent’s misrepresentation. They tried a dismissal and failed and the case will be resolved at trial or motion practice.

(c) 2026 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://gbarryzalma.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://Cwww.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the InsuranceClaims Library – https://lnkd.in/gwEYk.

post photo preview
Interested? Want to learn more about the community?
What else you may like…
Videos
Posts
September 18, 2026
Expert May Only Testify to What Experience Supports

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...

00:03:10
September 17, 2026
Convicted on 29 Tax-Refund-Fraud Counts

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 ...

00:05:23
September 14, 2026
Court Enforces Fifth Amendment & Refuses to Compel Answers

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 ...

00:05:14
14 hours ago
Zalma’s Insurance Fraud Letter – October 1, 2026

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 ...

post photo preview
September 30, 2026
Suing for Services Provided, and Paid for, is Fraud

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 ...

post photo preview
September 29, 2026
Court Partially Limits Evidence to Present at Trial

Accused of 17 Counts Of Fraud Attempts to Keep Out Evidence of Crimes

Post 4853

Posted on September 29, 2026 by Barry Zalma

Court Refuses to Grant Most Motions in Limine

In United States Of America v. Seth Allen Aikens, II, Criminal No. 22-119, United States District Court, W.D. Pennsylvania (September 23, 2026) Defendant Seth Allen Aikens II faces thirty federal counts. The indictment alleges that, from about June 2016 through March 2020, Aikens solicited start-up businesses seeking websites, applications, hosting, payment processing, and related services. The Government estimated aggregate losses of approximately $1.3 million involving about eight charged customers.

The Government also sought to introduce evidence involving three uncharged persons. Robert Polonsky allegedly paid about $10,000 for web development, hosting, and advertising services but did not receive the promised core deliverables. Brandon Canwright allegedly paid approximately $1,877 for a website and related services that were not delivered and received no ...

post photo preview
See More
Available on mobile and TV devices
google store google store app store app store
google store google store app tv store app tv store amazon store amazon store roku store roku store
Powered by Locals