Proving Insurance Fraud: Real Case Studies

PROVING INSURANCE FRAUD
REAL CASE STUDIES

Robert R. Pohls, Managing Attorney

2011 Western Claim Conference Renaissance Esmeralda Hotel
September 20, 2011 Indian Wells, California

REAL CASE STUDIES

AGENDA

1. What is insurance fraud?
2. Recognizing insurance fraud
3. The Claim-Handler’s Dilemma
4. Claim Strategies
5. Litigation Strategies
6. Trial Strategies
7. Claim Management Considerations
8. Questions

Slide 2

REAL CASE STUDIES

WHAT IS INSURANCE FRAUD?

Legal definition of fraud:

“One who willfully deceives another with intent to
induce him to alter his position to his injury or risk, is
liable for any damages which he thereby suffers.”

Cal. Civil Code §1709

Slide 3

REAL CASE STUDIES


Examples of actionable fraud:

· Suggesting a fact is true when not believed to be true
· Asserting a fact is true without reason for believing it to be
true
· Suppressing a fact when obligated to disclose it or giving
information which is likely to mislead about that fact
· Making a promise without any intent to perform it
Cal. Civil Code §1710

Slide 4

REAL CASE STUDIES


Working definition of insurance fraud:

“Any deliberate deception perpetrated against
or by an insurance company or agent for the
purpose of unwarranted financial gain.”
Coalition Against Insurance Fraud

Slide 5

REAL CASE STUDIES


Types of insurance fraud:

Hard Fraud When someone deliberately plans or invents
a loss that is covered by their insurance
policy in order to receive benefits

Soft Fraud When the policyholder exaggerates an
otherwise legitimate claim

Slide 6

REAL CASE STUDIES


Examples of insurance fraud:

Life · Misrepresentations (or omissions) in application
· Fake death claims
· Fraudulent procurement
Health · Provider fraud (bogus treatment/diagnosis)
Disability · False claim of injury or sickness
· Exaggeration of symptoms/functional impairment
· Concealment of income-producing activity

Slide 7

REAL CASE STUDIES

RECOGNIZING INSURANCE FRAUD

Fraudulent insurance claims are purposely made to look
legitimate.

Claimants often “control” the circumstances surrounding a
fraudulent claim:
· Time · Place · Witnesses · Nature of Injury · Symptoms

Claimants learn from past claim experiences:
· Paid Claims · Denied Claims · Fraud by Others · “Professional” Crooks

Slide 8

REAL CASE STUDIES

RECOGNIZING INSURANCE FRAUD

Fraudulent claims often are crimes of opportunity.

Pay attention to claims that involve those opportunities.

Consider fraud reporting obligations or referral to SIU.

Trust your instincts . . .

Slide 9

REAL CASE STUDIES

REAL CASE #1 Gregory v. Company

Two men from North Las Vegas go to an agent’s office in
suburban Henderson to apply for a $250,000 life insurance
policy.
Conditional receipt given in exchange for tender of initial
premium.
Insured fails to appear for paramedical exam because he was
murdered.
Police suspect the man who accompanied him to the agent’s
office (who was to be named as the beneficiary).

Slide 10

REAL CASE STUDIES

THE CLAIM-HANDLER’S DILEMMA

You should be trying to confirm that benefits are payable.

Investigating the possibility of insurance fraud creates the
impression you are trying to establish that benefits are not
payable.

· If you are right, you may uncover a fraud.
· If you are wrong, you may make it difficult to defend
a claim for bad faith.

Slide 11

REAL CASE STUDIES

CLAIM STRATEGY #1:

A picture’s
worth a
thousand
words.

Slide 12

REAL CASE STUDIES

CLAIM STRATEGY #2:

Read
Between
The Lines.

Slide 13

REAL CASE STUDIES

REAL CASE #3 Multiple-Murder/Suicide

Insured dies in a multiple-murder suicide during the
contestable period.
· Application denied prescription drug use.
· Vendor’s database reflects no known prescriptions.
Medical records predominantly relate to childbirths and known
history of surgery.
OB/GYN’s records also mention insured’s request for anti-
depressants and doctor’s prescription for Lexapro.

Slide 14

REAL CASE STUDIES

Mama always said:
“IF YOU TELL ONE LIE, YOU’LL
HAVE TO TELL ANOTHER.”

Slide 15

REAL CASE STUDIES

REAL CASE #4 Cynthia’s Kids v. Company and Agent

Proposed Insured: Stacey
Applicant/Owner: Cynthia
Proposed Beneficiaries: Cynthia’s 3 children (all minors)
Application: · Completed in agent’s office (Los Angeles)
· Dated: March 17, 2004
· Physical Description: 32 years old
5’1” and 120 lbs.
· No Adverse Medical History
· No History of Tobacco Use
· Occupation: Unemployed

Slide 16

REAL CASE STUDIES


Face Amount Applied For: $50,000
Monthly Premium: Less than $20/month
Cash With Application: First month’s premium

· No paramedical examination
· Additional underwriting requirements satisfied on May 3, 2004
· Underwriter approved application: 4:48 p.m. on May 5, 2004
· Pronounced dead at 6:20 a.m. on May 6, 2004
· Agent was told Stacey died of a heart attack

Slide 17

REAL CASE STUDIES


Initial Telephone Interview of Cynthia

· Stacey had “never been ill and didn’t have a family physician.”

· Stacey had gone to Houston to visit their mom and became ill.

· Stacey was taken to “the largest trauma center in Houston,”
which is where she died.
· Cause of death is not yet known.

Slide 18

REAL CASE STUDIES


Telephone Interview of Stacey’s Mom
· Stacey died of a “massive heart attack.”
· Stacey had been “physically healthy.”
· Stacey was mentally ill.
· Stacey had been living in a nursing home in Southern CA
· Had “breathing problems” in March 2004.
· Was moved to a Southern CA hospital for 4-5 days,
then transferred to hospital in Houston “to be closer.”

Slide 19

REAL CASE STUDIES

CLAIM STRATEGY #3:

Give ’em some rope.

Slide 20

REAL CASE STUDIES


Telephone Interview of Cynthia

· Stacey had been “in and out of mental type institutes.”

· Someone asked her if she had insurance “in case
something happened to” Stacey.

· Picked Stacey up from a nursing home one day to go
shopping with two friends, then to agent’s office to sign
the application.

Slide 21

REAL CASE STUDIES



· Did not remember any application questions being
read to her.

· Just “signed the application” where “she was told to.”

· Told the agent that “if something happened to her and
her sister, she wanted her [Cynthia’s] kids to be the
beneficiaries.”

Slide 22

REAL CASE STUDIES



· Reported that she has “only a 5th grade reading/writing level.”
· Claimed she went to the agent because the insurer indicated
its agents would “do everything” for her.
· Trusted the agent “with everything.”
· Told the agent that:
· Stacey “was in a nursing home for mental problems.”
· Cynthia was supposed to be the beneficiary, not her kids.
· Friends and family told her to “get a lawyer.”

Slide 23

REAL CASE STUDIES



· Told the agent in January 2004 that Stacey was mentally ill
and living in a nursing home.
· One friend went with her and Stacey to the agent’s office to
sign the application on March 17, 2004.
· “no questions were asked.”
· she and Stacey “both signed paperwork” where told.
· Is “sure the agent is trying to trick her as she is sure the agent
forged her signature on the policy.”
Slide 24

REAL CASE STUDIES



· Stacey left Los Angeles for Houston on April 22, 2004.
· Stacey “got away from” her mother, became delusional, and
was admitted to hospital involuntarily.
· Stacey was discharged, then re-admitted after a week or two,
just before she died.
· Stacey was 5’1” or 5’2” and weighed about 260 lbs.

Slide 25

REAL CASE STUDIES

CLAIM STRATEGY #4:

Dig deep . . .
really deep.

Slide 26

REAL CASE STUDIES


Autopsy Report
Death was the result of “[c]ardiomegaly associated with
hypertensive cardiovascular disease,” secondary to
obesity.

Height: 5’ 4”
Weight: 309 lbs.

Slide 27

REAL CASE STUDIES


Medical Records
· hypertension, with non-compliance regarding
treatment and abnormal EKG’s associated with the
hypertension;
· asthma, COPD and pulmonary hypertension;
· obesity;
· congestive heart failure and cardiomegaly; and
· ten year history of mental/nervous disorders, including
numerous medications and institutional stays.

Slide 28

REAL CASE STUDIES


Medical Records
(California) Medical Center 6/17/2003 - 10/31/2003
(California) Care Center 10/31/2003 - 1/23/2004
(California) Hospital 1/23/2004 - 1/27/2004
(California) Nursing Home 1/27/2004 - 3/5/2004
(California) Hospital 3/5/2004 - 3/11/2004
(Texas) Hospital 3/14/2004 - 4/8/2004*
(Texas) Hospital E.R. 4/11/2004 - 4/12/2004
(Texas) Psych Ward 4/12/2004 - 5/6/2004

Slide 29

REAL CASE STUDIES


Medical Records

3/5/2004 Admitted (SOB/aggressive behavior)
3/9/2004 “Cardiology assessment with COPD confirmed
. . . Discussed patient’s predicament last night
by phone with patient’s sister, Cynthia, and
mother. On learning of CHF, they agreed to
permit . . . development of appropriate Tx.”
3/11/2004 Discharged (to fly with Cynthia’s Mom to Texas)

Slide 30

REAL CASE STUDIES

CLAIM STRATEGY #5:

Get them
to commit.

Slide 31

REAL CASE STUDIES


Telephone Interview of Agent

· Only two people came to the office on the application date:
Cynthia and Stacey.
· All application questions were read aloud while displayed
on two computer monitors.
· Cynthia had no problem reading the questions.
· Stacey answered all the questions “No.”
· Would not have taken the application if knew Stacey was in a
nursing home for mental problems.

Slide 32

REAL CASE STUDIES


Telephone Interview of Agent’s Assistant
· Came to office on date application was completed
· Called just before coming
· No prior calls, messages or discussions about Stacey
Letters from Agent and Agent’s Assistant
· Application completed on March 17, 2004
Telephone Call to Cynthia
· One friend – Michele – was with Cynthia and Stacey
when the application was signed in the agent’s office.
· Michele “moves around a lot” and cannot be contacted.
Slide 33

REAL CASE STUDIES

CLAIM STRATEGY #6:

Tie up any
loose ends.

Slide 34

REAL CASE STUDIES


Telephone Interview of Agent

· Cynthia specifically said she did not want to be named the
beneficiary.
· Cynthia gave no reason for not naming herself.

Letters from Agent and Agent’s Assistant
· Cynthia asked that her three kids be named beneficiaries.

Slide 35

REAL CASE STUDIES


Telephone Call to Agent
· Cynthia signed the application when it was filled out.

Claim Form Addendum:

Slide 36

REAL CASE STUDIES


· Stacey signed the HIV consent form on the date the
application was completed
· Application was mailed to Cynthia’s home for Stacey
to sign

HIV Consent Form Application

Slide 37

REAL CASE STUDIES


· Stacey signed the HIV consent form on the date the
application was completed
· Application was mailed to Cynthia’s home for Stacey
to sign

HIV Consent Form Application

Slide 38

REAL CASE STUDIES

CLAIM STRATEGY #7:

Get an
Explanation.

Slide 39

REAL CASE STUDIES

Denial Letter

Our investigation indicates Stacey was confined in a hospital
“in Houston, Texas from March 14, 2004 to April 8, 2004; therefore
she could not have appeared in the agent’s office in California to
complete this application, as confirmed by Cynthia in previous
statements.”
In addition, “the application did not include information about
the insured’s history of schizophrenia, hypertension with non-
compliance regarding treatment, abnormal EKGs associated with
the hypertension, congestive heart failure, cardiomegaly, and
pulmonary hypertension during her confinement.”
Slide 40

REAL CASE STUDIES

Attorney’s Response

“On March 17, 2004, Stacey, Cynthia and a friend” (Michele)
went to the agent’s office.
· No one asked them questions.
· Neither of them signed a document with medical
questions.
· Cynthia left the office with a Binding Receipt.
As of March 17, 2004, Stacey “was residing in a nursing home
in Pasadena, California. To the extent any medical records
show Stacey residing in Texas as of that date, they are in error.”

Slide 41

REAL CASE STUDIES

LITIGATION STRATEGY #1:

Don’t bite off more than you can chew!
Proving fraud requires evidence of:
• Representation of fact
• Falsity
• Knowledge of falsity
• Intent to deceive
• Actual reliance
• Reasonable reliance
• Damage

Slide 42

REAL CASE STUDIES

Basic Contract Principles
Every contract requires consenting parties. If there is mutual
assent to the subject matter of the agreement, a contract
results. However, it may be voidable when there is a harmful
mistake as to some basic or material fact that induced the
aggrieved party to enter it.
· If both parties are mistaken and neither is at fault (or both
are equally to blame), the mistake may prevent formation of
a contract.
· A contract formed when one party has made a unilateral
mistake is not voidable unless the other party had reason
to know of the mistake or his or her fault caused it.

Slide 43

REAL CASE STUDIES

Insurance Laws
California “If a representation is false in a material point,
whether affirmative or promissory, the injured
party is entitled to rescind the contract from the
time the representation becomes false.”
Cal. Ins. Code §359

Whether the representation was intentionally or
unintentionally false does not alter the injured
party's right to rescind the policy.
Telford v. New York Life Ins. Co., 9 Cal.2d 103, 105 (1937)

Slide 44

REAL CASE STUDIES

Insurance Laws
No. Carolina “. . . a representation, unless material or
fraudulent, will not prevent a recovery on the
policy.”
N.C. Gen. Stat. §58-3-10

Illinois “No such misrepresentation or false warranty
shall defeat or avoid the policy unless it shall
have been made with actual intent to deceive or
materially affects either the acceptance of the
risk or the hazard assumed by the company.”
215 ILCS 5/154

Slide 45

REAL CASE STUDIES

Insurance Laws
Ohio No answer to any interrogatory made by an applicant in
his application for a policy shall bar the right to recover
upon any policy issued thereon . . . unless it is clearly
proved that such answer is willfully false, that it was
fraudulently made, that it is material, and that it induced
the company to issue the policy, that but for such
answer the policy would not have been issued, and
that the agent or company had no knowledge of the
falsity or fraud of such answer.
Ohio Rev. Code §3911.06
See also, Ohio Rev. Code §3923.14

Slide 46

REAL CASE STUDIES

Consider Alternatives
Application Agreement:
“Coverage will be effective as of the policy date if the
following conditions are met:
· the first premium is paid when the policy is
delivered;
· the Proposed Insureds are living on the
delivery date; and
· on the delivery date, the information given to
the Company is true and complete without
material changes.

Slide 47

REAL CASE STUDIES

Consider Alternatives
Binding Receipt:
· “There is no coverage under this Receipt if the
application contains any material misrepresentation.”
· “No death benefit is provided by this Receipt unless
death results from an accident that occurs or an
illness that first manifests itself after the Application
Date.”
· “Coverage under this Receipt will end when the first of the
following occurs: (a) The application is approved; (b) Notice
of disapproval of the application is given; (c) 60 days have
expired starting with the Application Date.”

Slide 48

REAL CASE STUDIES


Gather all
your bricks.

Slide 49

REAL CASE STUDIES

Rescission Checklist

1. Do I have the complete file?
- All coverage(s) with the company.
- Correct policy forms with all riders.
- All signed application forms, especially the delivery
requirements.
- Conditional receipt form.
- Applicable underwriting guidelines.

Slide 50

REAL CASE STUDIES


1. Do I have the complete file?
- Recording of inspection report/telephone verification.
- Premium/Billing information.
- Outstanding or incomplete investigation.
- Medical record requests (time period).
- Inspect original application documents to assess the
appearance of alteration – different handwriting or
color ink.

Slide 51

REAL CASE STUDIES


2. Is the policy contestable?
· Has the policy been in effect less than two years?
· Review the language of the contestability provision.
· except for fraudulent misstatements.
· strict two years.
· If outside the contestability period, are you in a
jurisdiction that provides other recourse?
· Are there other ways to adjudicate the claim?
· Waiver of premium rider (life insurance)
· Pre-existing condition limitation

Slide 52

REAL CASE STUDIES


3. What do we need to prove?
· Which state’s law applies?
· Require proof of intent to deceive?
· Require proof of loss-causation?
· If group insurance:
· Does ERISA apply?
· Do DOL regulations impose other requirements?

Slide 53

REAL CASE STUDIES


4. Misrepresentation/Concealment
· Are there misrepresentations in the application?
· Were facts omitted from responses in the application?
· Were the facts subjective or objective?
“Have you ever received treatment for or been
diagnosed as having or had any of the following?”
“Within the past 5 years have you had a physical
examination, medical consultation, X-ray or
laboratory study, or been a patient in a hospital
or other medical facility?”
Slide 54

REAL CASE STUDIES


5. Materiality
· Were the misrepresented/concealed facts material?
· Is there an underwriter’s opinion about materiality?
· Are there written underwriting guidelines that support the
underwriter’s opinion?
· Did the underwriter comply with those guidelines?
· What information did the underwriter consider?
· Did the underwriter know of other facts that created a
duty to make further inquiries?

Slide 55

REAL CASE STUDIES


6. Conditional Receipts
· Generally two types that provide different contractual
rights:
1) Provides coverage if conditions are met, with a
beginning and end date;
2) Fixes a date for determining insurability, if
conditions are met.

Slide 56

REAL CASE STUDIES


6. Conditional Receipts
· When did the Company get the money?
· How long did it take to underwrite the application?
· Compare to company standards
· What caused the delay?
· Was the policy delivered?
· How?
· By whom?

Slide 57

REAL CASE STUDIES


7. Change in Health
· What documents were signed at time of delivery?

· Do the medical records suggest any material change
in the insured’s health and/or insurability during the
underwriting process?
· Were those facts misrepresented or concealed in
the delivery receipt?
· Were those facts material?

Slide 58

REAL CASE STUDIES


8. Reinstated Policies
· Was the policy ever reinstated?
· Does the reinstatement application provide an
alternative basis for adjudicating the claim?
“The reinstated policy will only cover disabilities
due to injury occurring after the date of
reinstatement, and due to sickness beginning
more than 10 days after that date.”

Slide 59

REAL CASE STUDIES


9. Agent Misconduct
· Investigate the agent’s relationship with the company
and with the insured

· Review the agent’s statement (with application and in
claim file)
· Interview the agent
· Get the agent’s files

Slide 60

REAL CASE STUDIES


10. Claim Determination
· Appropriate tone
· Properly quotes from applicable policy provisions
· Factually accurate
· Identifies all basis for decision, including alternate
grounds
· Avoids inconsistent positions
· Complies with company protocols
· Was there a reservation of rights?

Slide 61

REAL CASE STUDIES


Leave no stone
unturned.

Slide 62

REAL CASE STUDIES

REAL CASE #3 Multiple-Murder/Suicide

· Application denied prescription drug use.
· Vendor’s database reflects no known prescriptions.
· OB/GYN’s records also mention insured’s request for anti-
depressants and doctor’s prescription for Lexapro.
· Pharmacy records confirmed one prescription filled.
· Report of underwriting telephone interview also denied
prescription drug use.
· Recording: “I had my OB prescribe anti-depressants, and I
filled the prescription once . . . But I never took them.”

Slide 63

REAL CASE STUDIES


Make a new friend.

Slide 64

REAL CASE STUDIES

REAL CASE #5 Spencer v. Company

· Insured claims to be totally disabled by generalized back pain
· Former occupation as an independent cameraman
· Claim file reflects a website devoted to his business which
promotes his projects
· Insured suggests all projects were completed long ago
· Insured claims to have had no new projects in years
· Also claims to have refused projects because unable to
hold and operate his camera

Slide 65

REAL CASE STUDIES

REAL CASE #6 Paul v. Company

· Insured claims to be totally disabled by low back pain
· Daily activities include:
· Morning hot tub
· Watch news from bed
· Home exercise routine
· Study towards graduate degree in new field
· When answering questions about efforts to secure new job,
insured claims he spends time with his “blog”
· Insured also mentions riding a bicycle to local meetings of a
networking group
Slide 66

REAL CASE STUDIES


Shop around.

Slide 67

REAL CASE STUDIES

REAL CASE #7 Penelope v. Company

· Insured worked as chiropractor and received full benefits for
total disability due to low back pain
· Claim file reflects inquiry through agent about ability to
qualify for further benefits after career change
· New claim involves impact of carpal tunnel syndrome on
insured’s work as skin esthetician
· Insured denies any work-related activity in past year

Slide 68

REAL CASE STUDIES

Be ready to herd some cats.

Slide 69

REAL CASE STUDIES

Letter from Attorney
“I have reviewed the underwriting and claim files. . . It
appears the initial meeting with the agent was probably in
February 2004, at which time Cynthia was given a binding
receipt post-dated to March 17, 2004 (the date Cynthia would
have premium funds available).”

Cynthia: Went to agent’s while shopping since just got tax refund
Agent: No way (and no reason) to post-date binding receipt
Binding Receipt: No coverage 60 days after application date

Slide 70

REAL CASE STUDIES

Cynthia’s Testimony
“I told the agent that Stacey was in a nursing home, had
schizophrenia, was depressed and had hallucinations.”

Agent: Would not have taken application if knew of those facts.
Underwriter: Application would have been denied without
inquiry if those facts were known.
Cal. Ins. Code §332: An applicant who communicates some
(but not all) facts which are material to the risk he or she
is trying to insure is not excused from his or her failure to
communicate other facts which are material to that risk.
Slide 71

REAL CASE STUDIES

Cynthia’s Testimony
“No one asked us any questions. The agent must have
filled out the application.”

Agent had never met, talked to, or talked with anyone about Stacey,
but application had her:
· Address · Date of Birth · Social Security Number
Agent had never met, talked to, or talked with anyone about Cynthia’s
kids, but:
· all 3 are named in application
· all 3 have a different last name than Cynthia
Slide 72

REAL CASE STUDIES

Trial Strategy Number 1:

Keep the
stories
straight.

Slide 73

REAL CASE STUDIES

Underwriter’s Perspective
· 32 year old non-smoker
· 5’1” and 120 lbs.
· No adverse medical/psychiatric history
Claim Handlers’ Perspective
· 32 year old smoker
· “about” 260 lbs.
· Significant undisclosed medical/psychiatric history
· Imposter at point of sale
Jury’s Perspective
· 309 lbs.
· Cynthia and her mother were told she was dying
· Could not have been in agent’s office on either date
Slide 74

REAL CASE STUDIES


Let the facts speak for
themselves.
If they are enough
to prove fraud,
jurors will
see it.

Slide 75

REAL CASE STUDIES


Remember the
“simple” truth.

Slide 76

REAL CASE STUDIES

Claim Management Considerations

· Insurance fraud is a crime of opportunity.
· Did the opportunity simply present itself?
· Was the opportunity manufactured?
· Insurance fraud is prevalent because insurers’ remedies
often are limited and there is little risk of prosecution.
· Understand what litigating a fraudulent claim is (and is not).
· Consider the potential for future claims under the policy.
· Make sure you have the stomach for it.

Slide 77

REAL CASE STUDIES

QUESTIONS?
Robert R. Pohls, Managing Attorney
e-mail: rpohls@califehealth.com

2011 Western Claim Conference Renaissance Esmeralda Hotel
September 20, 2011 Indian Wells, California

Proving Insurance Fraud: Real Case Studies

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