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August 05, 2022
SMALL FRAUD DEFEATS CLAIM

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].

Subscribe and receive videos limited to subscribers of Excellence in Claims Handling at locals.com https://zalmaoninsurance.locals.com/subscribe.

Subscribe to Excellence in Claims Handling at https://barryzalma.substack.com/welcome.

Write to Mr. Zalma at [email protected]; http://www.zalma.com; http://zalma.com/blog; daily articles are published at https://zalma.substack.com.

Go to the podcast Zalma On Insurance at https://anchor.fm/barry-zalma; Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library/

00:09:22
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20 hours ago
Zalma’s Insurance Fraud Letter – November 1, 2025

ZIFL – Volume 29, Issue 21

THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL

Post 5220

Read the full article at https://lnkd.in/gRMJpi4s, see the video at https://lnkd.in/gwGSd6ZA & at https://lnkd.in/gbDiuFJy, and at https://zalma.com/blog plus more than 5200 posts.

See the video at & at https://rumble.com/v711hr0-zalmas-insurance-fraud-letter-november-1-2025.html

See the full 18 page issue of ZIFL at ZIFL-11-01-2025

Zalma’s Insurance Fraud Letter (ZIFL) continues its 29th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to anyone who visits the site at http://zalma.com/zalmas-insurance-fraud-letter-2/

Conviction for Health Insurance Fraud Upheld

Physician Conspired with Bonavilla to Effect Health Insurance Fraud

Dennis Davin Bonavilla was involved in an insurance fraud scheme as an executive of Free Choice Healthcare. The scheme targeted indigent patients, often on ...

00:10:22
October 31, 2025
The Zalma Philosophy of Claims Handling – Part 8

The Professional Claims Handler

Post 5218

Read the full article at https://www.linkedin.com/pulse/zalma-philosophy-claims-handling-part-8-barry-zalma-esq-cfe-zdwsc, see the full video at https://rumble.com/v70zl4s-the-zalma-philosophy-of-claims-handling-part-8.html and at https://youtu.be/MIYcF71ffRQ, and at https://zalma.com/blog plus more than 5200 posts.

Claims Commandment X – Thou Shall Not Pretend to be a Lawyer

Some experienced and professional claims people know the law in their area of expertise better than most lawyers.

Adjusters should be adjusters and leave lawyering to lawyers. Similarly, lawyers should be lawyers and never try to be adjusters.

Claims Commandment XI – Thou Shall Empathize With the Claimant

Everyone presenting a claim is unhappy, disturbed, shocked, injured and needs help.

Empathy is identification with and understanding of another’s situation, feelings, and motives. It is the ability to understand another person’s circumstances, point of view, thoughts, and feelings....

00:11:08
October 28, 2025
The Zalma Philosophy of Claims Handling – Part 6

HOW TO CREATE AN EXCELLENCE IN CLAIMS HANDLING PROGRAM

See the full video at https://rumble.com/v70wb2i-the-zalma-philosophy-of-claims-handling-part-6.html and at https://youtu.be/tL5nDKPEs40 and at https://zalma.com/blog plus more than 5200 posts.

Post 5217

This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry.

An Excellence in Claims Handling program begins with a statement in the insurer’s claims manual or statement of professionalism that it is dedicated to providing excellence in claims handling to every insured who presents a claim.

The excellence in claims handling program should include, at a minimum:

A series of lectures supported by text materials explaining:
A definition of insurance.
How to read and understand an insurance policy.
How to interview an insured, witness, or claimant.
How to assist an insured in the insured’s obligation to ...

00:08:40
October 31, 2025
The Zalma Philosophy of Claims Handling – Part 9

The Professional Claims Handler
Post 5219

Posted on October 31, 2025 by Barry Zalma

An Insurance claims professionals should be a person who:

Can read and understand the insurance policies issued by the insurer.
Understands the promises made by the policy.
Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
Are competent investigators.
Have empathy and recognize the difference between empathy and sympathy.
Understand medicine relating to traumatic injuries and are sufficiently versed in tort law to deal with lawyers as equals.
Understand how to repair damage to real and personal property and the value of the repairs or the property.
Understand how to negotiate a fair and reasonable settlement with the insured that is fair and reasonable to both the insured and the insurer.

How to Create Claims Professionals

To avoid fraudulent claims, claims of breach of contract, bad faith, punitive damages, unresolved losses, and to make a profit, insurers ...

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October 20, 2025
The Zalma Philosophy of Claims Handling – Part I

The History Behind the Creation of a Claims Handling Expert

The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210

This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster

When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.

I was initially sat at a desk reading a text-book on insurance ...

post photo preview
October 20, 2025
The Zalma Philosophy of Claims Handling – Part I

The History Behind the Creation of a Claims Handling Expert

The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail

Post 5210

This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.

My Training to be an Insurance Claims Adjuster

When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.

I was initially sat at a desk reading a text-book on insurance ...

post photo preview
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