“Golfers get mulligans. But in this case, the insurance company does not.”
Judge Embry Kidd opened the appellate court’s opinion with those two sentences. I laughed and suspect more than a few public adjusters and frustrated policyholders will want to frame the lines.
For those who are not golfers, a mulligan is golf’s friendly opportunity to pretend your first bad shot never happened. You get a free do-over with no penalty. Zurich wanted something similar after adjusting three claims, applying a $100,000 deductible, and issuing payments. Its preferred second swing involved a $2.5 million deductible and no further payment.
This recent case opinion involved five heavy rain events that damaged a solar-power construction project in Georgia. 1 The builders risk policy covered both water damage and flood damage, but the deductibles were dramatically different. Water damage carried a $100,000 deductible per event. Flood carried a $2.5 million deductible per event. Whether the events were deemed a water damage event or a flood event could turn substantial insurance protection into a very expensive stack of paper.
Zurich’s adjuster inspected the project, recorded the losses as water damage, and repeatedly indicated that the lower deductible applied. When the claims system asked whether one event involved a flood, he answered no. Zurich then issued three $200,000 advance payments for the first three events without reserving its right to change its determination or apply a different deductible.
Zurich later changed its position. It then claimed that all five events were floods, and each required a separate $2.5 million deductible. Because none of the individual losses exceeded that amount, Zurich concluded it owed nothing further.
This shift in coverage when claims managers and insurance lawyers get involved seems to be a trend in claims handling. Many policyholders, public adjusters, and restoration contractors who routinely watch a claim move from “we are working on your payment” to “our lawyers have another interpretation” will recognize the frustration.
Here is what makes this decision especially interesting and important. The court agreed that the higher flood deductible otherwise applied. First Solar did not win because the judges decided the damage was merely water damage. It won on the first three claims because Zurich’s conduct waived its right to impose the higher deductible.
Zurich argued that waiver could not create insurance coverage. That familiar principle did not solve its problem. Both water damage and flood damage were already insured. Under this policy’s wording and structure, the deductible governed the amount payable for a covered loss. Waiving that payment limitation did not add an uninsured risk to the policy. Applying Georgia law, and predicting how Georgia’s Supreme Court would decide the issue, the Eleventh Circuit held that the deductible could be waived.
For the first three events, the undisputed adjustment history and unconditional payments established waiver as a matter of law. Zurich’s later reservation of rights arrived after the waiver had occurred. An insurer cannot necessarily restore a surrendered right by mailing a letter announcing that it would now like that right back.
For public adjusters and policyholders, the practical lesson is to preserve the entire adjustment history. Save payment letters, estimates identifying the deductible, emails describing the cause of loss, and documents accompanying advance payments. Confirm significant telephone conversations in a follow-up email. If the insurer changes its position, ask what new facts prompted the change and when it first reserved the particular right it now asserts. The original adjustment may be evidence that helps defeat the later denial.
The decision also teaches that each claim needs its own record. Zurich had made no advance payments for the final two events before sending its reservation of rights. The appellate court therefore left waiver on those claims for a jury to decide. It affirmed the damages and prejudgment interest for the first three events, vacated those awards for the last two, and remanded. Three unconditional payments did not automatically settle the rights associated with five separate losses.
There was another useful lesson tucked into the opinion. Zurich argued that the policy imposed a twelve-month lawsuit deadline. But the provision said an action “will not be barred if” brought within twelve months after discovery of the occurrence. The court held that this language promised an opportunity to sue within that period; it did not expressly bar a lawsuit filed afterward. Read the actual provision before accepting the insurer’s description of it, and obtain timely legal advice about every potentially applicable deadline.
This is a Georgia-law decision involving particular policy language and a well-developed factual record. It does not mean every advance payment waives every defense. It does mean that a denial letter should not erase the earlier claim history from anyone’s analysis. Sometimes the insurer’s own adjustment supplies the strongest answer to its later refusal to pay.
Golf partners may generously let a bad shot disappear. Policyholders should keep the scorecard.
Thought for the Day
“Always keep in mind that if God didn’t want a man to have mulligans, golf balls wouldn’t come three to a sleeve.”
—Dan Jenkins, quoted in Golf Digest
1 Zurich American Ins. Co. v. First Solar Electric, No. 25-10606 (11th Cir. Oct. 22, 2026).
