Dennis J. Wall

 

Uncontradicted testimony from an underwriter established the materiality of an answer to a foreclosure question in Hiscox Dedicated Corp. Member, Ltd. v. Taylor, ___ F.4th ___, No. 24-1161, 2025 WL 3639282 (8th Cir. Dec. 16, 2025).   The case was determined under Arkansas law.  It involved a property insurance policy and a claimed fire loss.

 

Applying Arkansas law, the Eighth Circuit held that the District Court properly ruled that the policy was rescinded so that there was no coverage under the policy at the time of loss.  The Eighth Circuit held in pertinent part as follows:

 

     "Under Arkansas law, materiality is a question of fact "so long as the matter is debatable" but a question of law "when so obvious that a contrary inference is not permissible." [Citation omitted.]   A misrepresentation is material if the insurer shows that "had it known of the misrepresented facts, the circumstances were such that it would not have issued the present coverage." Id. (emphasis added, cleaned up). Uncontroverted testimony from underwriters that the misrepresentation is material may be conclusive at summary judgment. [Citations omitted.].

 

     Here, there was uncontradicted testimony from B&W and Hiscox underwriters that they would not have issued the policy had Taylor properly disclosed the Fairfield Bay Property foreclosure."

Taylor,  2025 WL 3639282, at *6.

 

Case law on issues related to Reasonable Expectations of the Insured, which are sufficiently similar to the issues discussed in this article to be considered together with them, is collected in Volume 1 of the most recent Edition of CATASTROPHE CLAIMS / INSURANCE COVERAGE FOR NATURAL AND MAN-MADE DISASTERS § 7:2 (Thomson Reuters West Publishing Co.).

 

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  There's more on my Substack newsletter, claimsandissues.substack.com. 

 

  

In Acosta v. Citizens Prop. Ins. Corp., 421 So. 3d 716 (Fla. 4th DCA 2025), the issue on this claim for loss from Hurricane Irma was whether the cause of the loss was because of a covered peril (wind) or whether the cause was due to an exclusion (wear and tear).

 

The policyholders put on evidence from their expert, whose testimony was "based on NOAA and National Weather Service data, drone photography, thermal imaging, and two physical inspections" of the property.  Acosta, 421 So. 3d at 720.

 

In the Acosta case (no, not what you might call "the Epstein Acosta" in this case from South Florida, but a different Acosta here), the dispute was between competing versions of an agreed fact:  There was a loss caused by water intrusion through the homeowners' roof, but the parties disputed whether it was caused by the covered winds of Hurricane Irma or by excluded wear and tear.  "They simply disagreed as to what had caused the damage -- Hurricane Irma's wind force versus wear and tear."  Acosta, 421 So. 3d at 719-20.

 

The jury went with wind, but the trial judge set the jury's verdict aside and granted the carrier's motion for JNOV or judgement notwithstanding the verdict.  The appellate court reversed.

 

On this record, the jury was the one to decide the issue, not the judge. 

 

I do not find anywhere in the opinion that "wear and tear" became an issue because it was an exclusion in the policy at bar.  However, the jury effectively said so in their verdict which was partially reproduced in the appellate court's opinion.  See Acosta, 421 So. 3d at 718.

 

The jury decided in answering an interrogatory verdict in the case that "No," the defendant carrier did not "prove, by the greater weight of the evidence, that the damage is consistent with wear, tear and/or deterioration[.]" The defendant carrier of course bore the burden of proof on that issue because "wear, tear and/or deterioration" was an exclusion, an affirmative defense in this coverage case.

 

Case law on the issues discussed in this article is collected in Volume 1 of the most recent Edition of CATASTROPHE CLAIMS / INSURANCE COVERAGE FOR NATURAL AND MAN-MADE DISASTERS Chapter 7, Property Insurance Coverage Issues:  Exclusions (Thomson Reuters West Publishing Co.).

 

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  There's more on my Substack newsletter, claimsandissues.substack.com. 

 

 

 

In Hancock v. Fla. Farm Bureau Gen. Ins. Co., 421 So. 3d 459, 464 (Fla. 2d DCA 2025), a Florida intermediate appellate court reiterated the burden of proving "'the existence of a causal connection'" in a third-party bad faith case:

 

Put differently, "the existence of a causal connection is a prerequisite" in a third-party bad faith case, and "there must be a causal connection between the damages claimed and the insurer's bad faith." Perera [v. U.S. Fid. & Guar. Co.], 35 So. 3d [893] at 901, 902 [(Fla. 2010)}.

 

Case law on the burdens of proof in a third-party bad faith case is collected in Volume 1 of the Third Edition of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:95 (Thomson Reuters West Publishing Co., with 2025 Supplements).

 

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  There's more on my Substack newsletter, claimsandissues.substack.com. 

 

 

In Tudor v. State Farm Gen. Ins. Co., No. 22-cv-01113-RFL (PHK), a U.S. Magistrate Judge was confronted with a complicated situation and he responded with a very long Order.

 

In part here pertinent, the parties presented what is apparently a new tactic in litigation against insurance carriers:  the undisclosed "consulting attorney."

 

The parties and the Magistrate Judge argued about the different kinds of Model Protective Orders available to them under the Local Rules of the Northern District of California.  They apparently did not mention the Federal Rules of Civil Procedure, but the Rules provide context and almost certainly were the reason that the Model Protective Orders were written.

 

Under the Federal Rules of Civil Procedure, a party does not need to disclose the identity of a consulting expert witness who is not expected to testify at trial.  See Fed. R. Civ. P. 26(b)(4)(D).  The Northern District of California Model Protective Orders reflect this.  "Under the Model PO, the term 'Expert' is defined to include both an 'expert witness' and a 'consultant.'  Model PO at ¶ 2.6."  Tudor, 2025 WL 3628060, at *4.

 

In this case, the policyholder retained several consulting attorneys who made no appearance as counsel in her case and who were not expected to testify at trial.

The carrier in this case, State Farm, objected to providing the plaintiff's counsel of record with "confidential" information in discovery unless the plaintiff's "consulting attorneys" were identified; State Farm was particularly concerned that the consulting attorneys would turn around and use the information against State Farm in other cases.  The plaintiff contended that it was enough if the consulting attorneys agreed to be bound by the terms of the Protective Order which essentially applied to the use of "confidential" information in the case at bar.

 

Both parties apparently worked from the Local Rules of the District Court where the action was pending, the Northern District of California.  State Farm based its submission also on the District Court's Model Protective Order titled, "STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS."  Although the Magistrate did not refer to it by its full title, this is the  Model Highly Confidential Protective Order which was designed particularly for patent cases.

 

State Farm apparently tried to engraft edits onto the District's Model PO in Standard Cases insofar as the model patent order,or what the Court called the "Model Highly Confidential PO," requires "two levels of confidentiality designations for documents/information ('Confidential' and 'Highly Confidential')," but without also incorporating the "procedure [in that Model Order] for approving or objecting to disclosure of highly confidential information ... to experts."  Tudor, 2025 WL 3268060, at *4.  The Magistrate found this to be objectionable.

 

After considering and discussing many contentions and issues, the Magistrate Judge entered this ruling;

 

"Accordingly, the Court modifies the proposed Protective Order, first, by rejecting the edits proposed by both Parties directed to this dispute over consulting attorneys (e.g., edits to Paragraphs 2.6, 2.10, 7.3, and 7.4). The Court resolves this dispute by adopting the provisions of the Model Highly Confidential PO relevant to creating two tiers of confidentiality ("Confidential" and "Highly Confidential") and providing that disclosure of "Confidential" information to consultants (which includes consulting attorneys) is allowed without identifying them, whereas disclosure of "Highly Confidential" information to consultants (including consulting attorneys) is subject to and may only be done after the identification and objection procedures in the Model Highly Confidential PO. As noted above, the Court is separately issuing the final Protective Order in this case, which reflects the Court's resolution of these disputes as discussed herein."

Tudor, 2025 WL 3628060, at *6.

 

If you are confused by this case, so was I.  It's a legitimate response to this case, I think.  My own confusion increased because I could not find a definition of "Highly Confidential Information" in the Model Protective Order for patent cases.  Please feel free to read it for yourself at _https://cand.uscourts.gov/sites/default/files/documents/ND_Cal_Patent_Highly_Sensitive_Model_Prot_Ord_Revised.pdf.  I ask only that you share your discovery if you find a definition of "Highly Confidential Information" or any direction to counsel and parties as to when they can ethically designate something as "" HIGHLY SENSITIVE CONFIDENTIAL INFORMATION."  Your discovery will be gratefully appreciated.

 

Case law on the issues discussed in this article is collected regarding third-party insurance in Volume 1 of the Third Edition of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:107.50, Stipulated Protective Orders:  How and Why, and Possible Use in Concealing Third-Party Bad Faith Claims (Thomson Reuters West Publishing Co., with 2025 Supplements).   Case law on these issues in first-party insurance cases is collected in Volume 2 of id., § 9:28.50, Stipulated Protective Orders:  How and Why, and Best Practices to Honor Public Access and Avoid Possible Use in Concealing First-Party Bad Faith Claims.

 

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  There's more on my Substack newsletter, claimsandissues.substack.com. 

 

In Baldwin v. Standard Fire Ins. Co., 269 N.E.3d 1197 (Ind. 2025), a third-party bad faith case, the Supreme Court of Indiana adopted the "safe harbor" of Section 26 of the Restatement of the Law of Liability Insurance (2019).  The Court was using the October 2024 Update on Westlaw, which it erroneously referred to as the "Second" Restatement of the Law of Liability Insurance.  Baldwin, 269 N.E.3d at 1206-07.

 

"[I]nsurers may rely on an interpleader action as a 'safe harbor' that shields insurers from liability to their insureds."  Baldwin, 269 N.E.3d at 1207.

 

The liability insurer at bar filed an interpleader action, deposited its policy limits with the Court, and continued to provide its policyholder with a defense in the underlying liability case, all in the face of its evaluation that one claim among multiple claims against its policyholder would alone likely exceed its policy limits.  The Supreme Court affirmed the lower courts' grant of the liability carrier's motion for summary judgment, holding that the carrier cannot be liable for bad faith under these facts.  Baldwin, 268 N.E.3d at 1207-08.

 

The case law is still scanty, but available case law on the Restatement's journey through the Courts is discussed in Volume 1 of the Third Edition of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:1 (Thomson Reuters West Publishing Co., with 2025 Supplements).  Case law involving insurer bad faith issues and Multiple Claimants including the role of interpleader, is collected in id., § 3:45.

 

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  There's more on my Substack newsletter at claimsandissues.substack.com. 

Happy Thanksgiving!
Give Thanks!
 
Dennis Wall
Nov 27, 2025
 
 
Today is Thanksgiving! When we celebrate this year, and we emphatically should give thanks this year of all years, I will be giving thanks for many things. This is the highest form of resistance right now, to give thanks in a year and at a time that seems so dark and empty. There was no darker, emptier time than 1863 when President Lincoln declared Thanksgiving to be a national holiday. As he lived to set people free, let us continue to hope for a country of free people, built by free people, and for free people. And continue to act on our hope so that it shall not perish from the earth.

 
I am thankful for the people. There are so many people that I am proud of. God, I am proud of these people. There are so many clever people it is fun as well as an honor to be among them. We all share a kinship, what I would even call a sense of belonging, even with the strangers I do not know and may never know.

And yes, I am thankful for our diversity.

 
 
People even hang outside in all kinds of weather and on bridges to nonviolently, persistently show up because they are needed. They are present to make a contribution.

 
See all the people lining the street on what looks like a sidewalk on the far side of the street in this photo. They are there, as I say, because they are making a contribution. God, I am proud of these people.

 

I am thankful for individuals in my life as well. I am thankful that we had the pleasure of the company of David. He came every week to help at our house and stayed to do much more that needed to be done, things like put up plywood to shield the windows in our house from a hurricane.

 

And I am thankful for our neighbor who retrieves our garbage cans and recycling bins up from the street, also without even being asked.

 
Hurricane Seen From Space. (NASA)

 

For their courage, I am thankful for Senator Mark Kelly and the other 6 Senators and Representatives who reminded us that soldiers, sailors, marines, and air force not only should not obey illegal orders, but they have a duty to refuse to obey unlawful orders.

 
An Astronaut's View From Space. (NASA)

 
And I am thankful for the people of Chicago. I associate them with courage too.

 
Night-time Chicago, Seen From Space. (NASA) (In the before times.)

 

And although I am certain that there are courageous people in Portland, as well as gracious people who have a sense of humor in Chicago, still I associate Portland with protest in frog costumes, showing their grace and humor.

 
And I am thankful for the Judges who apply the law and uphold the Constitution when others would commit felonies and destroy the Republic if they could get away with it.

 
In the midst of especially noisy times, I am thankful for times when it is quiet.

 
And I am thankful for my wife, Dianne. She is my hero and one of the more popular people I know. When I say one of the more popular people I know, I mean that people like her and she likes people. Dianne can speak with almost anyone about almost anything, and they and she feel comfortable while they're at it. She has a gift. And as I say, she is my hero.

 
Happy Thanksgiving!

 
A previous version of this article, with embedded photographs to illustrate, was published on ClaimsandIssues.substack.com.
 
(Photo credits:

All the bridge photos were previously published on Robert Hubbell's Substack newsletter, "Today's Edition."

NASA credits were given in the text.

All of the other photos are Author Photos.)

 

An early version of Rule 11 was recognized in some of the early cases explicitly cited as such in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 2:7, at n. 9 (Thomson Reuters West Publishing Co. Third Edition, with 2025 Supplements).  Modern procedure under Federal Rule of Civil Procedure 11 is set out in the case of  Johnson v. Nationstar Mort. LLC, No. 1:25-cv-00855-JRR, 2025 WL 2938356, at *3 (D. Md. Oct. 16, 2025):

 

     Federal Rule of Civil Procedure 11 requires attorneys (and unrepresented parties) "to certify, on the basis of a reasonable inquiry, that any pleading or paper they file with a district court (1) is not filed 'for any improper purpose'; (2) is 'warranted by existing law'; and (3) alleges facts that 'have evidentiary support.' " Lokhova v. Halper, 30 F.4th 349, 354 (4th Cir. 2022) (quoting FED. R. CIV. P. 11(b)). This court may, in its discretion, impose sanctions for violations of Rule 11. FED. R. CIV. P. 11(c). "[I]n exercising that discretion to impose sanctions for a pleading or paper's lack of legal support, the court must apply an objective standard, inquiring whether 'a reasonable attorney in like circumstances could not have believed his actions to be legally justified.' " Lokhova, 30 F.4th at 354 (quoting Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 153 (4th Cir. 2022)). To be sanctionable, a legal argument must have "absolutely no chance of success under the existing precedent." Hunter, 281 F.3d at 153.

 

In the Johnson v. Nationstar case, the Court denied the Plaintiff's motion for Rule 11 sanctions because the record did not show that the Defendants' "counsel made sanctionable legal arguments or otherwise violated Rule 11."   Johnson, 2025 WL 2938356, at *3.  Further, the motion for sanctions "does not relate to a paper filed in this court[.]"  Johnson, 2025 WL 2938356, at *3.

 

As to a party Defendant, Progressive, the Court noted that once again the Plaintiff's motion for sanctions under Rule 11 related to matters outside the record, "not a filing made with the court for an improper purpose or without basis."  Johnson, 2025 WL 2938356, at *4.

 

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  There's more on my Substack newsletter, claimsandissues.substack.com.  

 

In Colt's Mfg. Co., LLC v. Am. Int'l Spec. Lines Ins. Co., No. 3:23-CV-01156 (JCH), 2025 WL 1753691 (D. Conn. June 25, 2025), the U.S. District Court for the District of Connecticut disarmed Colt's Manufacturing and denied its motion for summary judgment on breach of contract and bad faith claims.  (The Court also went into the carrier's motion for summary judgment issues, but we will not address them in this space today.)

 

The first thing the Court decided was to follow established Connecticut law to the effect that a later agreement can supersede the terms of an earlier insurance contract between the parties:  "Under Connecticut law, '[a] recognized test for whether a later agreement between the same parties to an earlier contract constitutes a substitute contract looks to the terms of the second contract. If it contains terms inconsistent with the former contract, so that the two cannot stand together it exhibits characteristics ... indicating a substitute contract.'"  Colt's Manufacturing, 2025 WL 1753691, at *8 (quoting a Connecticut Supreme Court opinion). 

In this case, the District Court held that an Interim Defense Funding Agreement (IDFA) superseded the original insurance contract between the parties under Connecticut law.

 

With respect to Colt's Bad Faith Claim, the Court held that there were triable issues of material fact not as to Colt's claim under the insurance contract, but as to Colt's bad faith claim under the IDFA with its insurance carrier:

 

          "For the reasons the court has already explained, Colt's cannot bring its bad faith claim pursuant to the Insurers' supposed failure to abide by language in an insurance policy that does not govern the parties' obligations to pay defense expenses. See, supra, part IV.A.4. Regarding Colt's bad faith claim under the Fourth IDFA, Colt's has failed to adduce sufficient evidence to foreclose the possibility that a jury could find in the Insurers' favor as to this claim. It is, therefore, a triable issue of fact as to whether the Insurers acted in bad faith under to [sic] the Fourth IDFA. Accordingly, the court denies Colt's Motion to the extent it seeks summary judgment as to its claim of bad faith."

 

Colt's Manufacturing, 2025 WL 1753691, at *18.

 

The issues addressed in Colt's Manufacturing are also addressed in a collection of case law in the context of Informing the Insured:  Insurer Assertion of Rights to Reimbursement From the Insured of Clearly Noncovered Indemnity and Defense Expense, § 3:6 in Volume 1 of DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH (Thomson Reuters West Publishing Co. 3d Edition, with 2025 Supplements).

 

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  There's more on my Substack newsletter. 

 

 

LinkedIn took this post down because its algorithm (mis)identified misinformation:

 

Next thing [the regime] will say is that Tylenol (secretly) is a vaccine, because vaccines cause autism, they say.

 

https://claimsandissues.substack.com/p/its-not-just-the-emperor-the-regime

 

I HAVE TWO WORDS FOR YOU, LinkedIn:  JIMMY KIMMEL.

I left this Comment earlier today opposing repeal of the Roadless Rule.  The Comment period has been shortened to Friday, September 19, 2025.

 

As I said, I left this Comment in opposition to repeal of the Roadless Rule.

 

Do you think differently?

 

You can leave your own Comment at regulations.gov.  The Docket ID Number and the RIN are given to you below.  You now have all the information you need to leave your own Comment.

 

Thank you.

 

_____________________________________________________________________________________________________

 

 

Re:     Docket ID No. FS-2025-0001-0001.

          You also identify this Notice as:

RIN 0596-AD66.

"Special Areas; Roadless Area Conservation; National Forest System Lands."

This Comment concerns your captioned Department of Agriculture/Forest Service Notice of intent to prepare an environmental impact statement.

 

I have had the experience of hiking through forest until I reached roads under construction.  There the forest ended.  The forest never comes back, and sometimes the roads are built.  Sometimes the construction stops where it began, but the forest is gone regardless of whether the road is finished.

 

          Do you think differently?

 

          The experience of road construction finalizing forest annihilation, as I have had, should be part of your proposed repeal of the Roadless Rule.  It is not and so I add it in this Comment.  Whether you are aware of such experiences, or whether you yourselves have had such experiences, your proposed repeal of the Roadless Rule is not informed by these experiences.  It should be.

 

          Do you think differently?

 

In my home State of Florida, a significant part of the Apalachicola National Forest will be affected by repeal of the Roadless Rule.  Long Bay is in the Apalachicola National Forest.  The Forest Service designated this as a Roadless Area.  This too should be factored into your proposed repeal of the Roadless Rule.  It has not been factored in, and so I raise it too in this Comment.

         

          Whether you yourselves have walked the Apalachicola National Forest is not the point.  (If you have, you have clearly not allowed the experience to affect you.)  It is natural and free there, indicative of the "old Florida" before development came and "put up a parking lot" as the Joni Mitchell song says.

 

          That is worth conserving.  That is why it has been conserved.  Until now.

 

          Do you think differently?

 

For all these reasons, whether taken separately or together, your Notice of intent to prepare an environmental impact statement to repeal the 2001 Roadless Rule should be withdrawn or, if not withdrawn, it should be rejected by any reviewing Court and by the people.

 

Thank you for the opportunity to provide this Comment.

 

 

 

 Please read the disclaimer. ©2025 Dennis J. Wall. All rights reserved. Interested in many things including Claims and Issues? There's more on my Substack newsletter.