Zalma s Insurance Fraud Letter

Transcription

1 Zalma s Insurance Fraud Letter The Essential Resource For The Insurance Fraud Professional A ClaimSchool Publication, Written by Barry Zalma, Esq., CFE 2015 ClaimSchool, Inc. & Barry Zalma Volume 19, No. 8 April 15, 2015 Go to Zalma Books E-Books and Articles by Barry Zalma Subscribe to Version, it s Free! Go to my blog Zalma On Insurance at Quote of the Issue Just remember, once you re over the hill you begin to pick up speed. Charles Schulz Insurance Fraud This article that follows was adapted from my book The Insurance Fraud Deskbook published by the American Bar Association, Tort & Insurance Practice Session. The full book is available from the ABA at or orders@americanbar.org, or Next to tax fraud, insurance fraud is the most practiced crime in the world. It is perpetrated by members of every race, religion, and nationality. It is found in every profession. The possibility of a tax-free profit, when coupled with the commonly held belief that criminal prosecution will probably not occur, is sometimes too difficult for normally honest people to resist. As those in the insurance industry are aware, many insurance fraud cases go unreported, because the victimized organizations do not recognize that they have been defrauded, because they choose not to report the crimes for fear of bad publicity, or simply because they do not want to deal with the repercussions and expenses attendant on insurers who report fraud to the appropriate authorities. If each insurer recognized that at least three percent of its gross premium goes to perpetrators of fraud the insurer might be willing to invest more money in its special fraud investigation units. Those who believe they can pass the cost of fraud on to the customers are mistaken. The truth is that fraud reduces the profit an insurer can make. Those who own stock in insurers should be complaining to the insurer about the lack of effort to protect the profits of the insurer and the dividends the shareholders are entitled to receive. Insurance fraud is a tort, a civil wrong. Black s Law Dictionary, 6th Edition, defines fraud as: An intentional perversion of the truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right; a false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In simple language, fraud can be defined as a lie told for the purpose of obtaining money from another who believes the lie to be true. Civil insurance fraud exists if an insured: makes a representation to the insurer that the insured knows is false; conceals from the insurer a fact he or she knows is material to the insurer; makes a promise he or she does not intend to keep; and makes a misrepresentation on which the insurer relies in issuing the policy, that results in the insurer incurring damage. Zalma's Insurance Fraud Letter -- Page 1 of 15

2 To protect insurers against fraud, most insurance policies contain, in clear and unambiguous language, a clause similar to the following from the New York Standard Fire Policy: This entire policy shall be void if, whether before or after a loss, the insured has willfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein... Fraud may be committed at different stages in the insurance transaction by: applicants for insurance, policyholders, third-party claimants and professionals who provide services to claimants. Those who commit insurance fraud range from: organized criminals who steal large sums through fraudulent business activities; insurance claim mills; professionals and technicians who inflate the cost of services or charge for services not rendered; people in need of cash who are recruited, for a fee, to be victims in an auto accident; ordinary people who want to cover their deductible; or ordinary people who view filing a claim as an opportunity to make a little money. Hard Fraud vs. Soft Fraud When someone deliberately fakes an accident, injury, theft, or intentionally commits arson or other loss to collect money without right from insurance companies, it is considered a hard fraud. Insurance criminals often act alone. Increasingly, organized crime rings stage large schemes that steal millions of dollars. When a legitimate loss occurs and an insured adds a single television, an I-Pod or a cellular phone to the loss to cover the deductible, it is considered a soft fraud. Soft Fraud Both frauds, regardless of the appellation, are both civil and criminal fraud. Both soft fraud and hard fraud are crimes in almost every state and both deserve to be prosecuted to the fullest extent of the law. A soft fraud is no less a crime than a hard fraud. The difference is premeditation. Both, if proved, are absolute defenses to an insurance claim. Both, if proved beyond a reasonable doubt are crimes. For reasons known only to governmental entities some insist on categorizing fraud into both hard and soft fraud. By so doing the governmental entities that so categorize fraud make one type of fraud less heinous than the other. Fraud, whether categorized soft or hard, both are criminal and if tried and convicted both can be sent to jail for the same amount of time. The types of insurance fraud some call soft fraud are found in every type of claim presented to an insurer. Soft fraud, which is sometimes called opportunity fraud, occurs when a policyholder or claimant exaggerates a legitimate claim... According to the Insurance Research Council, soft fraud Is far more frequent than hard fraud Because of the frequency of soft fraud, it adds more to overall claims cost than hard fraud does. [Article by the Idaho Fraud Bureau at report of the Coalition Against Insurance Fraud at article by Arkansas Department of Insurance at Soft fraud occurs when a policyholder exaggerates an otherwise legitimate claim or when an individual applies for an insurance policy and lies about certain conditions or circumstances to lower the policy s premium. The reality is that Soft Fraud is a criminal violation and a breach of a material condition of the policy. It contributes to increased insurance costs. As a result of increased insurance costs, millions of Americans cannot afford sufficient insurance coverage. One cannot commit an innocent or partial fraud any more than one can be partially dead. Once fraud is committed the contract of insurance is violated and voidable and the crime has been committed. Zalma's Insurance Fraud Letter -- Page 2 of 15

3 Understanding Insurance Fraud Before insurance fraud can be understood, it is important to understand what insurance is and how it works. Politicians continue to misunderstand insurance. Insurance is not a right awarded by the Constitution to every resident of the United States. It is a contract between an insurer and a person or corporation called the insured. Insurance is only a contract whereby one undertakes to indemnify another against loss, damage, or liability arising from a contingent or unknown event. That is all insurance is: a contract. It is a special type of contract where the insurer agrees to indemnify the insured against a loss, damage to property or liability as long as the event for which indemnity is sought is contingent or unknown at the time the insurance was acquired. A condition pre-existing the contract is not contingent or unknown. One should not be able to buy insurance against the fire loss of a home after it burns down. A person should not be able to buy medical care insurance to treat a cancer only after the cancer is diagnosed. Auto liability insurance purchased after an accident is not insurance and should not indemnify the insured for injuries caused. Insurance fraud exists because its perpetrators wish to profit by failing to comply with the definition quoted above. Those who perpetrate insurance fraud intend to create the loss, damage or liability rather than join the pool of those who have no losses but wish to protect themselves against contingent or unknown events. Because politicians and the public they serve do not understand what insurance is; because they do not understand what promises the insurers and insureds make to each other; and because premiums are paid annually but claims are rare, insurers are not liked. Insurance fraud in North America and Europe is rampant and almost universally unpunished. By including the full text of decisions from courts of appeal and supreme courts across the country the reader can understand what happens after the investigation is completed in order to better complete the investigation. It allows claims personnel and their lawyers to understand what errors they might make that would cause a defeat or a not guilty verdict. Since the effort to reduce insurance fraud requires the assistance of courts both civil and criminal the prudent fraud investigator, insurance adjuster, insurance attorney or insurance Special Investigation Units, and insurance management will have the information to deal with state investigators and prosecutors. Insurance Law Quick Overview New from Barry Zalma Insurance Law is the most comprehensive, and yet practical, insurance law authority available today. Written by nationally-renowned insurance coverage expert Barry Zalma, an insurance coverage attorney, consultant, expert witness and blogger, Insurance Law introduces the new insurance professional to the fundamental principles of insurance and provides the experienced litigator analyses of today s leading insurance law decisions nationwide. Insurance Law is the most comprehensive, and yet practical, insurance law authority available today. This book is ideal for any professional who works in or frequently interacts with the insurance industry. Claims professionals, risk managers, producers, underwriters, attorneys (both plaintiff and defense), business owners, and students will benefit greatly from this all-inclusive reference. It is also the perfect resource for educators and trainers whose role requires an understanding of insurance law. In addition to case law, the author has provided countless citations to relevant statutory, regulatory, and judicial sources which are guaranteed to kickstart your research. Additional books at the Zalma Insurance Claims Library Getting the Whole Truth The interview is an essential form of fact gathering for every type of human interaction. Interviews happen everywhere; they are performed by almost everyone. Interviewing is also an art, and the most effective interviews are conducted by those who are knowledgeable and skilled in this art. Zalma's Insurance Fraud Letter -- Page 3 of 15

4 The purpose of an interview is to uncover the truth; the method of uncovering the truth is the art of the interview. The standard interview does not have, nor should it be given, the pejorative sense conveyed by the expression giving someone the third degree. Interview professionals do not use rubber hoses or hot lights, or subject the interviewee to torture. In their limited arsenal, professionals do not have the power of the state, the reputation of the FBI, the majesty of a court trial, nor the intimidation of a search warrant. Civil interviewing professionals are, therefore, compelled to get the information they need by intelligence, wit, skill, and experience. They must be masters of the social graces; they must know how to put people at ease. The skill of the professional causes the person being interviewed to actually want to give information to the interviewer. When the interview is successful, the subject becomes a virtual partner with the professional in the effort to uncover the truth, the whole truth, and nothing but the truth. This ebook will help anyone who needs to obtain information from anyone else gain the information needed whether a business person, reporter, interviewer, investigator or lawyer. The book will be delivered to you by shortly after purchase. Random Thoughts on Insurance - Vol. III Since 2010 I have been writing a blog post at least five days a week. This e-book is a collection of those posts that reveal my interest in insurance case law. Some of the cases reviewed were important. Some were of first impression. Others will be totally unimportant. All were interesting to me and I hope are interesting to the reader. This e-book is more than 1200 pages of my review of interesting cases from 2013 through January After you purchase please wait for the e-book to upload from PayPal. If it does not upload please zalma@zalma.com and I will personally send you a copy of the in pdf format. The National Underwriter Company Publishes The Zalma Insurance Claims Library The full Zalma Insurance Claims Library is available at Mold Claims Coverage Guide Today, mold claims are common, but they continue to grow in complexity, involving not only property damage but bodily injury as well. Mold-related lawsuits have dramatically increased over the past few years, and the numbers continue to rise. Coverage requirements and related issues can be complicated and confusing. This resource will remove the complexity and allow the insurer, insured, property owner or developer and their counsel to deal with mold quickly and effectively and, if possible, avoid unnecessary litigation. URL: Price: $98.00 Construction Defects Coverage Guide Price: $ Insurance Claims: A Comprehensive Guide This insightful and practical two volume resource was envisioned and written by nationally renowned expert Barry Zalma, and it thoroughly explains how to identify construction defects and how to insure, investigate, prosecute, and defend cases that result from construction defect claims. Construction Defects Coverage Guide was designed to help property owners, developers, builders, contractors, subcontractors, insurers, and lenders, as well as their risk managers and lawyers rapidly resolve construction defect claims when they arise and avoid construction litigation. If litigation becomes necessary it will help the prosecution or defense of construction defect suits effectively. URL: Insurance contracts and clauses are specific in nature but the manner in which insurance claims are pursued and resolved can be remarkably different. Mistakes in handling a claim can undermine the outcome and ultimate value of the claim itself. Insurance Claims: A Comprehensive Guide is the one resource that enables insurance professionals, producers, underwriters, attorneys, risk managers, and business owners to successfully handle insurance claims from start to finish employing proven, practical techniques and best practices every step of the way. URL: Zalma's Insurance Fraud Letter -- Page 4 of 15

5 Price: $ Intent to Commit Insurance Fraud Not a Defense to Burglary Christopher J. Gilmore was convicted of burglary and attempted theft following an incident in September 2012 at the Automotive Diagnostic Center (ADC) in Wichita, Kansas when the police responded to the report of a burglary in progress. Looking into the building, Officer Cody Smith could see an individual inside crouching down next to a tool box. The individual looked at Smith and then stood up and ran out of the building. Smith followed on foot and maintained visual contact with the runner. When Smith threatened to use his Taser, the runner, later identified as Gilmore, stopped and was apprehended. Gilmore was wearing gloves and a stocking cap. He was carrying a backpack with several tools including a crowbar. The door to ADC had been forced open. Inside of the business, one of the garage doors had a lock that had been tampered with as well. Inside ADC was a Corvette owned by David Hutchinson. The driver s door was open, and the car s hood was raised. There was a battery charger next to the car, and the car s engine was running. In State v. Gilmore, Slip Copy, 2015 WL (Kan.App., 3/13/15) Gilmore attempted to avoid his conviction for burglary by claiming he only intended to participate in an insurance fraud scheme that was never fulfilled. Gilmore testified that on the evening of this incident he went to ADC with Michael Finley and a man knows as Roo Bear in order to get the Corvette as part of an insurance fraud scheme. Gilmore brought his backpack full of tools to help break into the shop. The plan was to take the Corvette and deliver it to Hutchison, apparently so Hutchinson could make a fraudulent claim on his auto insurance policy that the car had been stolen. But, according to Gilmore, when it became apparent that the other men intended to steal other items in the shop, Gilmore withdrew from the plan and never entered the building. A minute or so later, Gilmore heard an alarm go off. At that point, Finley ran around the building and threw a hat and the crowbar down on the ground and told Gilmore to go. An officer then came running around the building, pointed a taser at Gilmore, and ordered him to the ground. According to Gilmore, he was never inside the ADC building, never touched the Corvette, and never pried open the business door. He contended that he never intended to enter the building without the owner s permission or to permanently deprive the owner of his vehicle. The jury rejected Gilmore s version of the incident and found him guilty on both counts. DISCUSSION On appeal Gilmore argued that the district failed to give the jury a limiting instruction regarding his testimony that he intended to participate in insurance fraud, not burglary or theft. The failure to give an instruction is clearly erroneous only if failing to give the instruction was error and the appellate court is firmly convinced that the jury would have reached a different verdict if the error had not occurred. Gilmore relies on State v. Davis, 213 Kan. 54, 515 P.2d 802 (1973), to support his contention that a limiting instruction was legally appropriate in order to ensure that the jury did not punish him for crimes other than those charged. When such evidence of prior bad acts or crimes is admitted at trial, the Kansas Supreme Court requires the trial court to give a limiting instruction informing the jury of the specific purpose for its admission. But the statute does not apply when the evidence at issue relates to crimes or civil wrongs committed concurrently with the events surrounding the crimes for which the defendant is on trial. Gilmore testified that during the time of the events forming the basis for the burglary and attempted theft charges, he thought he was participating in insurance fraud. The testimony about insurance fraud was relevant to Gilmore s defense that he did not have the requisite intent to commit the charged crimes. It was Gilmore who introduced this evidence, not the State. A prosecutor steps outside of the considerable latitude given to prosecutors if he or she deliberately misstates the controlling law. The alleged misstatement of the law should be reviewed in the context of the entire closing argument and the instructions given to the jury. The court had no need tp dwell on the first step in its analysis. It is clear that the prosecutor misstated the law in closing argument. Gilmore s contention was that he understood the prearranged plan was to take the Corvette and give it to its owner who could then make a false insurance claim for its loss. Gilmore s testimony about his intent and his state of mind at the time of these events was proper evidence to defeat the claim that he broke into the garage without Hutchison s permission with the intent to take the Corvette without Hutchison s permission and permanently deprive Hutchison of the Corvette. The prosecutor s argument misstated the law and was improper. However, the evidence against Gilmore was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors. The police officer saw Gilmore crouched next to a tool box in the ADC building. He never lost sight of Gilmore as Gilmore ran from the building. Gilmore was apprehended with burglary tools still in his possession. Gilmore s defense was predicated upon the contention that he withdrew from the scheme before entering the ADC building and, in fact, never entered the building. If the jury believed the officer, then it had to conclude that Gilmore s story was entirely contrived. The jury rejected Gilmore s contention based on the clear testimony of the police officer. We note that in its jury instructions the district court placed the burden of proof on the State to prove Zalma's Insurance Fraud Letter -- Page 5 of 15

6 Gilmore s guilt and instructed the jury on the presumption of Gilmore s innocence. The jury was properly instructed on the elements of each of the charged crimes the State had to prove and was further instructed that the State had to prove that Gilmore committed each crime intentionally. That instruction stated that [a] defendant acts intentionally when it is the defendant s desire or conscious objective to do the act complained about by the State. Additionally, the jury was instructed that it could determine the weight and credit to give the testimony of the witnesses and was instructed on the factors it could consider regarding the reliability of eyewitness identification testimony. The Kansas Supreme Court has held that prior convictions can be used to enhance sentencing under the Kansas Sentencing Guidelines Act. Barry Zalma Barry Zalma is the principal of Zalma Insurance Consultants. He is available for consultation on any and all insurance issues faced by you or your clients. Barry Zalma founded ZIC to help resolve every insurance claim problem faced by you or your clients. His experience and skill as a consultant and expert witness can make the difference before a jury or other trier of fact. For more than 45 years as a claims person and insurance coverage attorney, Barry Zalma has represented insurers, advised insurers on claims handling, interpreted coverages and testified as an insurance coverage, insurance bad faith, insurance claims handling and insurance fraud expert on behalf of insurers and policy holders suing insurers. Mr. Zalma is an internationally recognized expert on insurance, insurance claims handling, insurance coverage, insurance fraud, and insurance bad faith. Barry Zalma will promptly review your file materials and advise you about the viability of your decision to sue or your defenses. He can help you narrow the scope of discovery. Consultation with Mr. Zalma and ZIC can save you or your client thousands of dollars in the defense or prosecution of an insurance dispute. ZIC will assist you in the effort to find a solution to an insurance claims dispute that is fair, intelligent, beneficial and economical. ZIC is available to provide expert advice and, if needed, expert testimony to individuals and their counsel. Advice from ZIC is indispensable to the resolution of insurance disputes. Consultation from ZIC can save you, your counsel or client hundreds of hours of investigative and legal work. With comprehensive knowledge of insurance and insurance claims handling Mr. Zalma understands, and can explain in language a lay jury understands, how and why insurance claims should be resolved. ZIC rates are all inclusive. Mr. Zalma s hourly fee takes account of all incidentals from telephone calls and postage to computer time and word processing. As for third-party costs, ZIC passes along all discounts and vendor savings. The client pays what ZIC pays. Not a penny more. ZIC has made the billing process simple. He is knowledgeable and qualifies as an expert in cases involving insurance bad faith, insurance claims, insurance claims handling, and insurance fraud. Mr. Zalma aids insurers, insurance agents and brokers, and attorneys representing both plaintiffs and defendants with their insurance cases. Kentucky Adds Anti-Fraud Law to Its Statutes Automobile insurance fraud is a multi-billion dollar crime in the United States. Most states have made the insurance fraud a crime. Some have very limited laws against insurance fraud and are beginning to revise their statutes to punish fraud perpetrators. Kentucky will put into effect in June a new law aimed at automobile crash rings. Kentucky HB 153 goes into effect in late June and makes it illegal to solicit victims involved in an automobile crash for medical treatment for 30 days following the incident. Unscrupulous providers of medical treatment often learn of an accident from informants, body shop personnel, and even some police or ambulance operators. They then contact people involved, who may or may not be truly injured, with a promise of a cash payment. This is then followed by a series of treatments until personal injury protection (PIP) benefits, usually $10,000, are used up, at which time the patient is discharged. Frequently the care is inadequate or may be totally unrelated to the injuries sustained, and patients who truly are injured may be unable to get treatment later because their PIP benefits would have already been exhausted. Whether the person was injured or not, in many instances the insurance-buying public has paid for unnecessary treatment and the insurer providing the PIP coverage has been defrauded. Kentucky, since it enacted the PIP law has seen a steady rise in suspicious claims. Louisville ranks 10th in the country for these types of fraudulent claims. Migration fraud also is an issue for Kentucky, ranking number two in the country behind Minnesota for crime rings that have moved to the state from other jurisdictions because fraud laws are less stringent. Many of these cases involve low-speed fender-benders with police reports that have been flagged by runners for the clinics. The state hopes that the law will cut down on the abuse of PIP, which will save consumers money. Some fraud perpetrators do without informants by monitoring police scanners so that they can arrive at the scene of an accident before the Zalma's Insurance Fraud Letter -- Page 6 of 15

7 police clear the area. Technology has made it easier for fraud perpetrators to track down victims of crashes. They monitor police scanners and then contact the traumatized victims at the crash site, sending them to less than honest clinics for treatment. The dishonest medical providers then file phony claims against the victim s insurance without his or her knowledge for soft tissue injuries like cervical sprains and strains that don t show up on X-rays or other tests. If the fraudsters don t get to the victims at the accident site, they obtain the police reports afterwards and badger them to seek medical treatment. According to the new law, During the first 30 days following a motor vehicle accident a healthcare provider or an intermediary, at the request or direction of a healthcare provider, shall not solicit or knowingly permit another individual to solicit a person involved in a motor vehicle accident for the provision of reparation benefits as defined by KRS (2). The law places enforcement with various professional boards and on other providers to report any violations. Healthcare providers will be responsible for the content of any contact they make with accident victims and any individual or provider who violates the law will be subject to the disciplinary process of the respective licensing or regulatory authority. In addition, any money received by a clinic or healthcare facility soliciting patients will be returned to the payer. It would, of course, have been more effective if the state made the activity a crime, where the perpetrator could be sentenced to jail, probation or payment of restitution to the defrauded insurers and victims of the useless medical treatment. The new statute is better than no law at all but is not a major deterrent. Wisdom Attach yourself to those who advise you rather than praise you. - Nicolas Boileau-Despreaux The ultimate authority... resides in the people alone. [T]he advantage of being armed, which the Americans possess over the people of almost every other nation... forms a barrier against the enterprises of ambition, more insurmountable than any... - James Madison Never be bullied into silence. Never allow yourself to be made a victim. Accept no one s definition of your Zalma's Insurance Fraud Letter -- Page 7 of 15

8 life; define yourself. - Harvey Fierstein Iron rusts from disuse; water loses its purity from stagnation... even so does inaction sap the vigor of the mind. - Leonardo da Vinci Barry Zalma is On World Risk & Insurance News Check out my Who Got Caught submissions at and scroll down to Who Got Caught. Good News Convictions from the Coalition Postal worker in Baltimore sentenced to prison for workers comp fraud March 30, 2015, Baltimore, MD -- A former Postal Service worker was sentenced to 18 months in prison for defrauding the government out of hundreds of thousands of dollars in disability and food assistance payments. Colette Lee, from Baltimore, will also have to pay back $244,912 in workers compensation and nutrition assistance benefits to the Postal Service and the Agriculture Department, according to the Justice Department. Taxpayers foot the bill for phony disability claims by government workers, said U.S. Attorney Rod J. Rosenstein. Postal employee Colette Lee filed a fraudulent disability claim in 2007 and kept the scam going for seven years until she was caught. Contractors in California convicted of failing to buy comp coverage March 27, 2015, La Mesa, CA -- Three executives of a La Mesa-based firm that buys and renovates homes for resale were sentenced Thursday to three years probation and ordered to pay $290,000 to the 8-month-old son of one of their workers, who died in a tree-trimming accident. David Scott Wolfe, 48, and his company, Three Frogs Inc., along with Chief Financial Officer Jonathan D. Cox and Chief Operating Officer John Murphy, were charged last year with tax and insurance fraud counts. Wolfe was also charged with a violation of OSHA safety standards in connection with the Nov. 12, 2013, tree-trimming accident that killed Joshua Pudsey, 42. Friendships and client relationships meant little to public adjuster Marshall Perlman. The Philly man just wanted their claim checks. He stole more than $700,000 worth of insurance money from 32 trusting clients, plunking their money into his own bank account. He fleeced families, churches, victims of Hurricane Sandy, and even his own friends. A fire ruined Grace Wang-Shing s home 5 years ago. She was evicted from 2 apartments while waiting for Perlman to send her the $194,000 settlement. She sold her daughter s education bond and used her own retirement savings to begin rebuilding her home. Her credit was shot. Perlman also stole from a pastor, whose roof still leaks because he doesn t have the money to rebuild. The adjuster used client money for luxury items such as a summer trip to Europe with his wife and a new condo on the Jersey Shore. The con was the result of bad business decisions, Perlman says. He s trying to take out loans to repay his clients, he insists. Perlman received 3-21 years in state prison and must repay his clients. A thief took Jill Audette s car keys and made off with her 2013 Hyundai, the San Diego woman lied to Progressive Insurance. Except that police already had impounded her car after a witness said the vehicle was involved in a hit-and-run collision. Audette was driving and hit several parked cars before fleeing on foot. She was on probation for 2 DUIs at the time. Audette received 2 years in jail Monday. Supposed job openings were openings to steal thousands of dollars in life premiums. Agent Zalma's Insurance Fraud Letter -- Page 8 of 15