WITHDRAWAL OF FRAUDULENT PORTION OF CLAIM DOES NOT ELIMINATE FRAUD
Posted on August 5, 2022 by Barry Zalma
See the full video at https://rumble.com/v1euzub-small-fraud-defeats-claim.html and at
Star Casualty Insurance Company appealed a summary final judgment and attorney fee award entered in favor of Gables Insurance Recovery, Inc., as assignee of Star Casualty’s insured, Ana Maria Correa. Star Casualty alleges that the trial court erred by granting summary judgment due to genuine issues of material fact concerning whether Correa’s medical bills for diagnostic imaging procedures were medically necessary and related to the underlying accident for purposes of section 627.736, Florida Statutes. Additionally, Star Casualty alleged that the trial court reversibly erred by striking four affirmative defenses from its amended answer that could have exempted it from liability for the claim.
In Star Casualty Insurance Company v. Gables Insurance Recovery, Inc., a/a/o Ana Maria Correa, Nos. 3D21-0033, 3D21-0377, Florida Court of Appeals, Third District (July 20, 2022) the Court of Appeal was faced with an attempt to avoid the consequences of being caught on a partial fraud only to have the plaintiff withdraw the claim and contend the rest of the claim was honest.
FACTS
Correa was involved in a vehicle accident on January 19, 2009 and sustained injuries. Subsequently, Correa received diagnostic imaging procedures costing a total of $3,375.00, and Gables, as her assignee, submitted a claim to the insurer for reimbursement of eighty percent of the reasonable medical expenses pursuant to section 627.736(1)(a). After the insurer paid only $400.71 and denied the remainder of the claim, Gables sued to recover the remaining costs.
Star Casualty proffered an affidavit by Edward A. Dauer, M.D., opining that the charges were not medically necessary or related to the accident. This affidavit also noted that three of the imaging procedures performed on Correa appeared to have been improperly upcoded or unbundled with other procedures.
Based on Dr. Dauer’s affidavit, Star Casualty amended its answer to add affirmative defenses asserting that it was exempt from paying the entire because the three charges were fraudulent, upcoded, or unbundled. Prior to the summary judgment hearing, Gables voluntarily withdrew its claims for reimbursement of the three charges on which Star Casualty based its affirmative defenses. Gables then moved to strike the defenses from Star Casualty’s answer, alleging that the withdrawal of the claims for those three charges made the corresponding defenses irrelevant and moot.
The trial court granted partial summary judgment on the relatedness and necessity issues and granted Gables’ motion to strike the affirmative defenses based on plaintiff’s withdrawal of the part of the claim found to be fraudulent.
ANALYSIS
The Court of Appeal noted that the trial court erred by finding that Dr. Dauer’s affidavit did not create a genuine issue of material fact. An issue of fact is “genuine” for summary judgment purposes when a reasonable jury could potentially return a verdict in favor of the non-moving party. A factual dispute is “material” when it may affect the outcome of the case under the applicable substantive law.
The sole basis for Star Casualty’s assertions of a factual dispute as to relatedness and necessity comes from Dr. Dauer’s affidavit. In the affidavit, Dr. Dauer opined that the images conducted were “not medically necessary and not related to the accident of 1/19/2009” because “there were no objective findings and documentation to warrant the ordering of the x-rays in this case.” Because these findings created a genuine issue of material fact as to relatedness and necessity, the Court of Appeal concluded that the summary judgment must be reversed and remanded.
On remand, the trial court’s order striking Star Casualty’s affirmative defenses was reversed, as the defenses were not wholly irrelevant to the claims in the operative complaint. An affirmative defense may not be stricken merely because it appears to a judge that the defendant may be unable to produce evidence at trial to sustain such a defense.
The trial court’s reasoning for striking the defenses was based solely on the fact that the claims for reimbursement of the charges relating to those defenses had been voluntarily withdrawn. Conversely, Star Casualty claims that because the defenses asserted fraud, upcoding, and unbundling, such defenses pertained to the remaining charges.
Any insurance fraud voids all coverage. arising from the claim related to such fraud under the personal injury protection coverage of the insured person who committed the fraud, irrespective of whether a portion of the insured person’s claim may be legitimate.
An insurer is not required to pay a claim or charges that are upcoded, or that is unbundled when such treatment or services should be bundled and Florida statutes relieve both the insurer and the insured from paying the claims of any person who knowingly submits a false or misleading statement relating to the claim or charges.
Evidence of insurance fraud necessitated summary judgment in favor of an insurer to the entire PIP claim comprising two separate and distinct claims for medical expenses and lost wages, since allowing for payment of one portion of a claim would nonsensically allow an insured to engage in a cost-benefit analysis with respect to the contemplation of such fraud.
ZALMA OPINION
A party seeking insurance benefits may not commit a little fraud any more than he or she can be a little dead. When caught in fraud, as evidenced by an expert, the fraud attempt cannot be ignored by simply deleting it from the claim since the insurer, by proving some fraud, will convince the trier of fact that the entire claim was fraudulent or that the attempted fraud voided the right to the benefits of the policy. Attempted fraud whether large of small; whether related to one part of a claim or another.
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Random Thoughts on Insurance Volume XIV: A Collection of Blog Posts from Zalma on Insurance —
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(c) 2022 Barry Zalma & ClaimSchool, Inc.
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. He is available at http://www.zalma.com and [email protected].
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Insurance Expert May Not Testify to Speculative and Contains Unsupported Conclusions.
Posted on September 18, 2026 by Barry Zalma
See the full video at and at https://rumble.com/v7fmifw-expert-may-only-testify-to-what-experience-supports.html
In Michele A. Over, and The Estate Of Paul R. Over v. State Farm Mutual Automobile Insurance Company, and State Farm Fire And Casualty Company, Civil Action No. 23-cv-02243-PAB-STV, United States District Court, D. Colorado (September 14, 2026) Michele and Paul Over sued State Farm Fire and State Farm Auto over hail-damage and stolen-vehicle claims.
The operative dispute concerned State Farm Auto’s motion to exclude or limit opinions from plaintiffs’ insurance-industry expert, Aaron Castillo. Castillo.
Law
The proponent of expert testimony must establish by a preponderance of the evidence that an expert is qualified and that the opinions are helpful, sufficiently grounded, and reliably derived and applied. Experience-based opinions must explain how the...
150 Months in Prison for Tax Fraud
Post 4846
Posted on September 17, 2026 by Barry Zalma
See the full video at https://lnkd.in/g8rh3JBX and https://lnkd.in/gmkdy-9C, In United States Of America v. Thomas Addaquay, Nos. 25-10609, 25-10611, United States Court of Appeals, Eleventh Circuit (September 9, 2026) the Eleventh Circuit affirmed all challenged convictions, the 150-month aggregate sentence, and the challenged $4,123,474.55 restitution award.
FACTS
In United States Of America v. Thomas Addaquay, United States Of America v. Thomas Addaquay, Nos. 25-10609, 25-10611, United States Court of Appeals, Eleventh Circuit (September 9, 2026) the Eleventh Circuit affirmed all challenged convictions, the 150-month aggregate sentence, and the challenged $4,123,474.55 restitution award.
FACTS
Thomas Addaquay controlled United Consolidated Accounting and Business Services (UC), nominally a check-cashing business.
The government proved a three-stage tax-refund scheme that converted the resulting refund checks into usable funds through ...
Major Fraud Perpetrator Asserts Fifth Amendment Privilege to Avoid Prosecution
Post 5489
Posted on September 14, 2026 by Barry Zalma
Fraudster Refuses to Answer Questions About His Alleged Fraud
See the full video at https://lnkd.in/gvicAMDr and at https://lnkd.in/gvicAMDr
In Great American Insurance Co. v. Gemstone Property Management, LLC, et al., No. 23-cv-9100 (LJL), United States District Court, S.D. New York (September 8, 2026) Great American Insurance Company alleged that it was defrauded through a scheme in which Subin Associates, LLP recruited individuals to stage construction-site injuries, arranged unnecessary medical treatment and litigation funding, and pursued fraudulent personal-injury claims.
Luis Manuel Garcia Salcedo, resulted in a $6 million settlement. Non-party Jose Hernandez allegedly worked as an assistant manager at Subin, operated Hernandez Associates, and owned litigation-funding companies that shared office space with Subin and provided services to its clients.
After Great American ...
Alleged Defamatory Statements Must be Of and Concerning Plaintiffs
Posted on October 16, 2026 by Barry Zalma
To Prove Defamation the Statement Must be Of and Concerning the Plaintiffs
Post 4867
In Michael Moloney and Sergio Cantu v. United Services Automobile Association, No. 04-25-00519-CV, Court of Appeals of Texas, Fourth District, San Antonio (October 14, 2026) Michael Moloney and Sergio Cantu appealed from the trial court’s granting of a traditional motion for summary judgment in favor of United Services Automobile Association (“USAA”) on their defamation claim.
BACKGROUND
Moloney and Cantu sued USAA for defamation, alleging that they are the principals of Informed Roofing & Restoration, LLC (“Informed Roofing”), which is primarily engaged in the residential roofing repair and replacement business, and that an employee or agent of USAA had made false and defamatory statements to the San Antonio Police Department (“SAPD”) concerning them.
Specifically, Moloney and Cantu alleged that an employee of ...
ZIFL – Volume 30, Issue 20 Subscribe to ZIFL here https://lnkd.in/gfpn78FM
Posted on October 15, 2026 by Barry Zalma
THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL
Zalma’s Insurance Fraud Letter (ZIFL) continues its 30th year of publication dedicated to those involved in reducing the effect of insurance fraud.
ZIFL is published 24 times a year is written by Barry Zalma.
It is provided FREE to anyone who visits the site at https://lnkd.in/gVT5G9s
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Post 4863
Posted on October 14, 2026 by Barry Zalma
In United States Of America v. Anthony Curtis Brewer, No. 26-10745, United States Court of Appeals, Eleventh Circuit (October 8, 2026) Anthony Curtis Brewer became the fiduciary for an incapacitated recipient of Department of Veterans Affairs survivor benefits and agreed to use her funds solely for her care and support without commingling them with his own.
The VA determined that he misused $67,232.33 and removed him as fiduciary in 2022. Brewer pleaded guilty to theft of more than $1,000 in government property under 18 U.S.C. § 641. At sentencing, the district court attributed $53,567 in loss to him, producing an advisory Guidelines range of 15 to 21 months.
Citing the victim’s vulnerability, Brewer’s attempts to avoid responsibility, and his other fraudulent conduct — including state convictions for arson and insurance fraud — the court ...