Zalma on Insurance
Business • Education
Insurance Claims professional presents articles and videos on insurance, insurance Claims and insurance law for insurance Claims adjusters, insurance professionals and insurance lawyers who wish to improve their skills and knowledge. Presented by an internationally recognized expert and author.
Interested? Want to learn more about the community?
March 11, 2022
Man Bites Dog Story: Insurer Sues Insured for Fraud

Fraud by Insured Allows Both Compensatory and Punitive Damages to go to Defrauded Insurer

Read the full article at https://www.linkedin.com/pulse/man-bites-dog-story-insurer-sues-insured-fraud-barry-zalma-esq-cfe and at https://zalma.com/blog plus more than 4100 posts.

Posted on March 11, 2022 by Barry Zalma

Alexander Dallal and Claire Dallal (“the Dallals”) appealed following an adverse jury verdict. The jury awarded Plaintiff-Appellee Lincoln Benefit Life Company (“Lincoln”) $619,290.49 in compensatory damages and $300,000 in punitive damages. In Lincoln Benefit Life Company v. Alexander Dallal, an individual; Claire Dallal, an individual, No. 21-55152, United States Court of Appeals, Ninth Circuit (March 1, 2022).
LACK OF EXPERT REPORT DEFEATS TESTIMONY

The Dallals’ claimed their expert was improperly not allowed to testify. However, the expert witness disclosure as to Dr. Chow was untimely and was never accompanied with a report satisfying the requirements of Federal Rule of Civil Procedure 26(a)(2)(B). Accordingly, exclusion was well within the district court’s discretion.
STATUTE OF LIMITATIONS STARTS RUNNING ON DISCOVERY

The parties agree that the three-year statute of limitations found in California Code of Civil Procedure § 338(d) applies to Lincoln’s claims. This statute incorporates the “discovery rule” to “fraud actions by statute,” Cansino v. Bank of Am., 169 Cal.Rptr.3d 619, 628 (Cal.Ct.App. 2014), providing that any “cause of action . . . is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake,” California Civil Code § 338(d).

The discovery rule is an “important exception to the general rule of accrual . . . [and] postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” Fox v. Ethicon Endo-Surgery, Inc., 110 P.3d 914, 920 (Cal. 2005). Under the discovery rule, the statute of limitations does not begin to run when the last element occurs, but instead at the time the plaintiff “at least suspects that someone has done something wrong to him.” Norgart v. Upjohn Co., 981 P.2d 79, 88 (Cal. 1999) (alterations and citation omitted).

Lincoln sued December 16, 2016. This means that under the three-year statute of limitations established by California Code of Civil Procedure section 338(d), it could only recover for fraudulent claims accruing on or after December 16, 2013, unless the discovery rule applies. December 16, 2013 is the controlling date for any statute of limitations defense raised in this case and the Dallals offer no persuasive argument to the contrary.

The Dallals attempt to contort this standard into one obligating an insurer to presume it is being defrauded by its insureds and investigate claims even in the absence of any evidence of wrongdoing. This is simply not what the discovery rule requires.
SUBSTANTIAL EVIDENCE

Substantial evidence is evidence adequate to support the jury’s conclusion, even if it is also possible to draw a contrary conclusion. The Ninth Circuit did not weigh the evidence, instead, simply ask whether the plaintiff has presented sufficient evidence to support the jury’s conclusion.

The Ninth Circuit concluded that the jury’s conclusion as to the discovery rule was supported by substantial evidence. Specifically, at trial the jury was presented with overwhelming evidence that from 2004 to 2016 the Dallals systematically forged hundreds of records indicating Mr. Dallal was severely physically and cognitively incapacitated in order to wrongfully obtain insurance benefits. And during this period Lincoln did not simply take the Dallals at their word but instead conducted multiple independent nursing assessments during which Mr. Dallal feigned incapacity.
THE RIGHT TO PUNITIVE DAMAGES

The Ninth Circuit must review de novo whether a punitive damages award is excessive. The Dallals challenge the punitive damages award under both California law and the United States Constitution. California law authorizes an award of punitive damages when a plaintiff establishes by clear and convincing evidence the defendant engaged in oppression, fraud, or malice. California law prohibits punitive damage awards that are excessive as a matter of law or raise a presumption of passion or prejudice.

This state-law excessiveness analysis considers a variety of factors including the reprehensibility of the defendants’ conduct, the relation between the compensatory damages awarded and the harm suffered, and the award’s relation to the wealth of the particular defendant. California generally finds punitive damage awards exceeding 10 percent of the defendant’s net worth excessive.

The framework under which California reviews punitive damage awards remains constrained by the Constitution. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003). Generally, a punitive damage award is unconstitutional when it is “grossly excessive or arbitrary,” which requires a consideration of three factors:

the degree of reprehensibility of the defendant’s misconduct;

the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and

the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.

In this case, a punitive damages analysis under either California law or the Constitution compels the same conclusion-the jury’s punitive damages award should remain undisturbed.
CONTRACT OF INSURANCE VOID

Over the course of nearly a decade, the Dallals systematically defrauded Lincoln out of hundreds of thousands of dollars in insurance benefits by forging documents and having Mr. Dallal feign physical and cognitive incapacity. The jury’s punitive damages award was half of the compensatory award and a fraction of the Dallals’ $4,000,000 stipulated net worth. Insurance fraud is serious misconduct, which could be met with both civil and criminal penalties under California law. Ultimately, after considering the requisite factors, the Ninth Circuit found no basis for disturbing the jury’s punitive damages award under either California law or the Constitution.

For equitable relief to issue, the benefiting party must have no adequate remedy at law and must suffer irreparable injury without it. Voiding contracts on the basis of fraud has long been considered a proper exercise of equitable power.

The district court concluded that the Dallals’ fraud had irreparably damaged Lincoln’s ability to trust them, and that continuance of the policy would require the expenditure of a disproportionate amount of resources, justifies the use of equitable powers in this case.

Because the parties agree Lincoln has no mechanism to cancel the Policy absent equity, it lacks an adequate remedy at law. Even if the policy separately insured both Mr. Dallal and Mrs. Dallal does not prevent a total cancellation of the policy because the evidence established they were both active participants in the fraudulent scheme.
ZALMA OPINION

California does not allow an insurer to sue its insured for breach of the covenant of good faith and fair dealing even when as abusive as in this case. However, as this case proves, an insurer may successfully sue an insured for fraud and may obtain both compensatory and punitive damages from its insured. Since the Dallals had a net worth of more than $4 million a $300,000 punitive damage award was minor and more than fair. Lincoln should be commended and emulated by any insurer who has evidence that an insured has defrauded it. Perhaps Travelers who was proved to be defrauded of $15 million should file a fraud suit against the insured in the case described in this blog as “Arson for Profit Proved by Circumstantial Evidence” to recover the $15 million plus punitive damages.

© 2022 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders.

He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business.

Subscribe to “Zalma on Insurance” at https://zalmaoninsurance.locals.com/subscribe and “Excellence in Claims Handling” at https://barryzalma.substack.com/welcome.

You can contact Mr. Zalma at https://www.zalma.com, https://www.claimschool.com, [email protected] and [email protected] . Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

You may find interesting the podcast “Zalma On Insurance” at https://anchor.fm/barry-zalma; you can follow Mr. Zalma on Twitter at; you should see Barry Zalma’s videos on https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg/featured; or videos on https://rumble.com/zalma. Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims–library/ The last two issues of ZIFL are available at https://zalma.com/zalmas-insurance-fraud-letter-2/

Interested? Want to learn more about the community?
What else you may like…
Videos
Posts
February 21, 2025
No Coverage for Criminal Acts

Concealing a Weapon Used in a Murder is an Intentional & Criminal Act

Post 5002

Read the full article at https://lnkd.in/gmacf4DK, see the full video at https://lnkd.in/gav3GAA2 and at https://lnkd.in/ggxP49GF and at https://zalma.com/blog plus more than 5000 posts.

In Howard I. Rosenberg; Kimberly L. Rosenberg v. Chubb Indemnity Insurance Company Howard I. Rosenberg; Kimberly L. Rosenberg; Kimberly L. Rosenberg; Howard I. Rosenberg v. Hudson Insurance Company, No. 22-3275, United States Court of Appeals, Third Circuit (February 11, 2025) the Third Circuit resolved whether the insurers owed a defense for murder and acts performed to hide the fact of a murder and the murder weapon.

FACTUAL BACKGROUND

Adam Rosenberg and Christian Moore-Rouse befriended one another while they were students at the Community College of Allegheny County. On December 21, 2019, however, while at his parents’ house, Adam shot twenty-two-year-old Christian in the back of the head with a nine-millimeter Ruger SR9C handgun. Adam then dragged...

00:08:09
February 20, 2025
Electronic Notice of Renewal Sufficient

Renewal Notices Sent Electronically Are Legal, Approved by the State and Effective
Post 5000

Read the full article at https://lnkd.in/gpJzZrec, see the full video at https://lnkd.in/ggmkJFqD and at https://lnkd.in/gn3EqeVV and at https://zalma.com/blog plus more than 5000 posts.

Washington state law allows insurers to deliver insurance notices and documents electronically if the party has affirmatively consented to that method of delivery and has not withdrawn the consent. The Plaintiffs argued that the terms and conditions statement was not “conspicuous” because it was hidden behind a hyperlink included in a single line of small text. The court found that the statement was sufficiently conspicuous as it was bolded and set off from the surrounding text in bright blue text.

In James Hughes et al. v. American Strategic Insurance Corp et al., No. 3:24-cv-05114-DGE, United States District Court (February 14, 2025) the USDC resolved the dispute.

The court’s reasoning focused on two main points:

1 whether the ...

00:09:18
February 19, 2025
Post Procurement Fraud Prevents Rescission

Rescission in Michigan Requires Preprocurement Fraud
Post 4999

Read the full article at https://lnkd.in/gGCvgBpK, see the full video at https://lnkd.in/gern_JjU and at https://lnkd.in/gTPSmQD6 and at https://zalma.com/blog plus 4999 posts.

Lie About Where Vehicle Was Garaged After Policy Inception Not Basis for Rescission

This appeal turns on whether fraud occurred in relation to an April 26, 2018 renewal contract for a policy of insurance under the no-fault act issued by plaintiff, Encompass Indemnity Company (“Encompass”).

In Samuel Tourkow, by David Tourkow v. Michael Thomas Fox, and Sweet Insurance Agency, formerly known as Verbiest Insurance Agency, Inc., Third-Party Defendant-Appellee. Encompass Indemnity Company, et al, Nos. 367494, 367512, Court of Appeals of Michigan (February 12, 2025) resolved the claims.

The plaintiff, Encompass Indemnity Company, issued a no-fault insurance policy to Jon and Joyce Fox, with Michael Fox added as an additional insured. The dispute centers on whether fraud occurred in...

00:07:58
February 07, 2025
From Insurance Fraud to Human Trafficking

Insurance Fraud Leads to Violent Crime
Post 4990

Read the full article at https://lnkd.in/gDdKMN29, see the full video at https://lnkd.in/gKKeHSQg and at https://lnkd.in/gvUU_a-8 and at https://zalma.com/blog plus more than 4950 posts.

CRIMINAL CONDUCT NEVER GETS BETTER

In The People v. Dennis Lee Givens, B330497, California Court of Appeals, Second District, Eighth Division (February 3, 2025) Givens appealed to reverse his conviction for human trafficking and sought an order for a new trial.

FACTS

In September 2020, Givens matched with J.C. on the dating app “Tagged.” J.C., who was 20 years old at the time, had known Givens since childhood because their mothers were best friends. After matching, J.C. and Givens saw each other daily, and J.C. began working as a prostitute under Givens’s direction.

Givens set quotas for J.C., took her earnings, and threatened her when she failed to meet his demands. In February 2022, J.C. confided in her mother who then contacted the Los Angeles Police Department. The police ...

post photo preview
February 06, 2025
No Mercy for Crooked Police Officer

Police Officer’s Involvement in Insurance Fraud Results in Jail
Post 4989

Read the full article at https://lnkd.in/gr_w5vcC, see the full video at https://lnkd.in/ggs7dVfg and https://lnkd.in/gK3--Kad and at https://zalma.com/blog plus more than 4900 posts.

Von Harris was convicted of bribery, forgery, and insurance fraud. He appealed his conviction and sentence. His appeal was denied, and the Court of Appeals upheld the conviction.

In State Of Ohio v. Von Harris, 2025-Ohio-279, No. 113618, Court of Appeals of Ohio, Eighth District (January 30, 2025) the Court of Appeals affirmed the conviction.

FACTUAL BACKGROUND

On January 23, 2024, the trial court sentenced Harris. The trial court sentenced Harris to six months in the county jail on Count 15; 12 months in prison on Counts 6, 8, 11, and 13; and 24 months in prison on Counts 5 and 10, with all counts running concurrent to one another for a total of 24 months in prison. The jury found Harris guilty based on his involvement in facilitating payments to an East Cleveland ...

post photo preview
February 05, 2025
EXCUSABLE NEGLECT SUFFICIENT TO DISPUTE ARBITRATION LATE

Read the full article at https://lnkd.in/gRyw5QKG, see the full video at https://lnkd.in/gtNWJs95 and at https://lnkd.in/g4c9QCu3, and at https://zalma.com/blog.

To Dispute an Arbitration Finding Party Must File Dispute Within 20 Days
Post 4988

EXCUSABLE NEGLECT SUFFICIENT TO DISPUTE ARBITRATION LATE

In Howard Roy Housen and Valerie Housen v. Universal Property & Casualty Insurance Company, No. 4D2023-2720, Florida Court of Appeals, Fourth District (January 22, 2025) the Housens appealed a final judgment in their breach of contract action.

FACTS

The Housens filed an insurance claim with Universal, which was denied, leading them to file a breach of contract action. The parties agreed to non-binding arbitration which resulted in an award not

favorable to the Housens. However, the Housens failed to file a notice of rejection of the arbitration decision within the required 20 days. Instead, they filed a motion for a new trial 29 days after the arbitrator’s decision, citing a clerical error for the delay.

The circuit court ...

See More
Available on mobile and TV devices
google store google store app store app store
google store google store app tv store app tv store amazon store amazon store roku store roku store
Powered by Locals