False or Exaggerated Bond Claims: What Can A Surety To Do Combat This Increasingly Prevalent Practice?

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1 False or Exaggerated Bond Claims: What Can A Surety To Do Combat This Increasingly Prevalent Practice? By Diane C. Utz, Associate Watt, Tieder, Hoffar & Fitzgerald, L.L.P.* Most states have enacted regulatory measures that require sureties strictly to comply with claims handling procedures. These regulations often carry significant penalties for violations. Is turn about fair play? When claimants abuse the process by presenting claims against a surety that the claimant knows to be false or fraudulent, does the surety have recourse? Discussed below are a number of avenues currently available to sureties to handle fraudulent or grossly inflated bond claims. Additionally, this article suggests ways to promote for the future a more streamlined process for sureties to address fraudulent claims by suggesting potential state legislation and highlights a number of protections for sureties already contained in state statutes. Common Law Fraud Every state has laws that enable individuals or companies to bring lawsuits against those who commit fraud so that costs and damages resulting from the fraud can be recouped. These laws typically require the party who suffered from the fraud, or the aggrieved party, to prove nine separate elements through clear and convincing evidence. Note that the clear and convincing standard carries an evidentiary burden higher than what is normally required in civil cases, which is proof by a preponderance of the evidence. Under these laws, the aggrieved party must clearly and convincingly prove that: 1) the party accused of fraud represented an existing fact ; 2) the represented fact was material, or otherwise important in context; 3) the represented fact was false; 4) the party representing the fact knew it was false; and 5) the party making the representation intended to induce reliance on the fact. Additionally, the aggrieved party must clearly and convincingly prove that: 1) he did not kn fact ; 3) he had a right to rely on the truthfulness of the fact ; and 4) through his reliance on the fact he was monetarily damaged. Under these existing laws, if a surety believes that a claimant has grossly overstated a bond claim or falsified information to support an exaggerated claim, the surety can file a lawsuit based on com ow the fact was false; 2) he relied on the truth and accuracy of the mon law fraud. Obviously, the amount of any damages that could be claimed by the surety would depend upon whether the fraudulent claim had actually been paid prior to discovery of the fraud. The surety s damages might include costs incurred to investigate and defend against the claim, however, even if the fraud was discovered prior to any payment. State Insurance Fraud Statutes Prevailing on a fraud claim can be difficult given the high evidentiary standard. As insurance fraud has become more and more prevalent, however, state legislatures have

2 begun to acknowledge that fraud is driving up insurance premiums and negatively affecting the public s financial interests. As a result, several state legislatures have passed insurance fraud statutes that enable the state to prosecute insurance fraud claims without the heightened evidentiary burden and without having separately to prove each of the nine elements required for proof of fraud under common law. Some states have enacted these fraud statutes in the context of the state s insurance codes so that investigation of fraud claims falls under the authority of the state insurance commissioner. These statutes typically criminalize insurance fraud by tying into the state s penal code and by classifying the fraud as a misdemeanor or felony, depending on the threshold monetary amounts involved. The level of seriousness attached to the crime of insurance fraud varies by state. Moreover, most of these fraud statutes focus on automobile, medical, and workman s compensation insurance fraud, as fraud in these areas has been the most systematic and pervasive. There appears, however, to be little substantive difference between a staged auto accident or orchestrated slip and fall in a grocery store, and a supplier s claim for the payment for materials it never actually purchased or used on a project other than the bonded project. At present, most state insurance fraud statutes do not give insurance companies private rights of action. Instead, violations of these statutes constitute criminal activity that can only be prosecuted on behalf of the state. Towards that end, most states that have enacted insurance fraud statutes have established an insurance fraud division within the state insurance commissioner s office that is tasked with investigating reported insurance fraud. Under these statutory schemes, depending on the types of insurance fraud the statutes are intended to cover, a surety that suspects fraud may be limited to filing a complaint with the fraud division. Under most of these statutory schemes, if the investigation leads to prosecution of a formal claim, courts have the option of granting restitution to aggrieved parties (i.e., insurers) in addition to or in lieu of fines that would otherwise be payable to the state. Currently, under most states laws, a surety that incurs damages as a result of a fraudulent or exaggerated bond claim has two potential courses of action to recover those damages. First, the surety has the right to file a lawsuit based on common law fraud. Second, depending upon whether a particular state s legislature has enacted insurance fraud statutes that cover general insurance fraud (as opposed to just automobile, medical, and/or workman s compensation insurance fraud), the surety may be able to file a claim with the state insurance fraud department. In Washington, for example, RCW states: It is unlawful for any person, knowing it to be such, to: (a) Present, or cause to be presented, a false or fraudulent claim, or any proof in support of such a claim, for the payment of a loss under a contract of insurance... Under that law, if a surety that issues a bond for a project located in Washington believes that a false or fraudulent claim against its bond has been filed, it can pursue a claim through the Washington State Insurance Commissioner s office. The investigative unit of the commissioner s office then has the discretion to investigate and criminally prosecute the claim. If the claimant is convicted under the statute, the surety may have a right to recover damages, despite the fact that the lawsuit was brought on behalf of the state. In that regard, RCW specifically provides that an insurance company may be considered the victim of an insurance fraud crime and

3 may be entitled to restitution upon the claimant s conviction. In other contexts, Washington courts have considered sureties to be included within insurance companies. Assuming this is a correct interpretation of the statutes, RCW should be applicable to sureties as well. Proposed Legislation Sureties could potentially streamline the process for prosecuting fraud claims (similar to how automobile, medical, and/or workman s compensation insurance claims are prosecuted) by lobbying state legislatures for statutory language that would broaden existing insurance fraud statutes. Sureties are clearly not immune to the problems of false claims experienced by insurance companies. In fact, because payment and performance bonds are required on state and federal projects funded by taxpayer dollars, it is arguably in the public s financial interest to provide a vehicle to deter fraudulent bond claims. In many states, the necessary general statutory structure is already in place. For example, California Insurance Code, Section , details the legislative intent of California s Insurance Fraud Prevention Act: The Legislature finds and declares as follows: (a) the business of insurance involves many transactions that have the potential for abuse and illegal activities. There are numerous law enforcement agencies on the state and local levels charged with the responsibility for investigating and prosecuting fraudulent activity. This chapter is intended to permit the full utilization of the expertise of the commissioner and the department so that they may more effectively investigate and discover insurance frauds, halt fraudulent activities, and assist and receive assistance from federal, state, local, and administrative law enforcement agencies in the prosecution of persons who are parties in insurance frauds... Consistent with this legislative intent, sureties could lobby in favor of state statutory schemes that would create a semi-private right of action for fraudulent acts against insurance companies and sureties. This would allow sureties to bring actions on their own behalf as well as on behalf of the state. One example of such a statute in the insurance context is California Insurance Code Section (e), which provides that [a]ny interested persons, including an insurer, may bring a civil action for a violation of this section for the person and for the State of California... Although this statute addresses medical insurance fraud only, it is a good guideline for the type of language for which sureties should lobby. This language withstood a standing challenge in People ex rel. Allstate Insurance Company v. Hisham Muhyeldin, 112 Cal. App. 4 th 604, 5 Cal. Rptr. 3d 492 (2003), wherein the court confirmed that a semi-private right of action was created. Sureties would benefit greatly if state legislatures would include similar language in insurance fraud statutes that is broad enough to include fraudulent bond claims. Final Pointers

4 Sureties should also be aware that many states have notice requirements that apply to all forms of insurance. For example, many states require that a statement be included on all applications and claim forms similar in form and substance to the following: It is a crime to knowingly provide false, incomplete, or misleading information to an insurance company for the purpose of defrauding the company. Penalties include imprisonment, fines, and denial of insurance benefits. Additionally, many states require the disclosure of any knowledge and information regarding insurance fraud to the state insurance fraud division. In those states, the failure to provide notice on claim forms or to report knowledge regarding potentially fraudulent claims can stand as a bar to pursuing fraudulent claims under existing statutes. For these, and all the reasons touched upon above, it is important for sureties to be familiar with the laws and regulations of the states in which they issue bonds. * Watt, Tieder, Hoffar & Fitzgerald, L.L.P Greensboro Drive, Suite 100 McLean Virginia

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