Fraud in Inception is Ground for Rescission
Barry Zalma
Jun 26, 2023
Read the full article at https://lnkd.in/gvYc94Hm and see the full video at https://lnkd.in/gQ8h-fdM and at https://lnkd.in/gs5pWS4G and at https://zalma.com/blog plus more than 4550 posts.
Esurance Property & Casualty Insurance Company (Esurance) appealed the trial court's order granting summary disposition in favor of Nationwide Mutual Fire Insurance Company (Nationwide), and denying Esurance's request for summary disposition. In Nationwide Mutual Fire Insurance Company v. Esurance Property & Casualty Insurance Company, and Derek Allen Gregory and Blair Gregory, No. 361298, Court of Appeals of Michigan (June 15, 2023) Esurance alleged its insured defrauded it when it acquired the policy and it was entitled to rescind the policy regardless of the trial court's balancing the equities.
PERTINENT FACTS
In 2015, Derek Gregory (Derek) was driving a truck insured by Esurance and co-owned with his wife, Blair Gregory (Blair). The truck collided with Daniel Moore (Moore), who was riding a bicycle. Moore was injured in the accident. Moore was uninsured, and his claim for personal protection insurance ("PIP" ) benefits was assigned to Nationwide via the Michigan Automobile Insurance Placement Facility (MAIPF). Nationwide paid a total of $454,871.09 in medical expenses on behalf of Moore.
Nationwide subsequently filed this lawsuit against Moore and Esurance seeking to recover the PIP benefits it paid on Moore's behalf. Nationwide alleged that Esurance, as the insurer of the truck was in a higher priority position and was required to reimburse Nationwide.
The Bases for Rescission
Esurance subsequently filed a third-party complaint against Nationwide and the Gregorys, alleging that Blair had failed to disclose several material facts in her application for the insurance policy, including that she was married, that Derek occasionally drove the truck, that Derek had been in prior accidents involving alcohol, that Blair had been involved in prior accidents, and that Blair had filed prior claims with other insurance providers. Esurance argued that Blair's misrepresentations in her insurance application constituted fraud, warranted rescission of the policy, and prohibited Nationwide from recovering from Esurance as a higher-priority insurer.
After a hearing on Nationwide's motion, the trial court issued a written opinion granting summary disposition in favor of Nationwide. The trial court noted that rescission is not automatically applicable in the face of fraud. The trial court held that Esurance had failed to show that rescission was warranted, and that Nationwide could stand in Moore's shoes and recover from Esurance on the basis of equitable subrogation
RESCISSION
Esurance argued that the trial court erred by granting summary disposition in Nationwide's favor. Specifically, Esurance contended that the trial court abused its discretion in concluding that the balance of the equities weighed against rescission.
Equitable subrogation is a flexible, elastic doctrine of equity that is decided on a case-by-case basis. Equitable subrogation is the mode which equity adopts to compel the ultimate payment of a debt by one who in justice, equity, and good conscience ought to pay it.
The Michigan Supreme Court has held that the plain language of the no-fault act does not preclude or otherwise limit an insurer's ability to rescind a policy on the basis of fraud.
Although PIP benefits are mandated by statute, the no-fault act neither prohibits an insurer from invoking the common-law defense of fraud nor limits or narrows the remedy of rescission.
However, the presence of fraud by the insured does not automatically entitle an insured to rescission. When innocent parties are affected, rescission is left to the trial court's discretion. Rescission should not be granted in cases where the result thus obtained would be unjust or inequitable or in cases where the circumstances of the challenged transaction make rescission infeasible.
There is no dispute that Esurance is an innocent insurer, and that Moore is an innocent third party.
Caselaw clearly demonstrates that the equities must be balanced between the injured person and the party seeking rescission. The Michigan Supreme Court already rejected Esurance's arguments and held that such insurers may be reimbursed via equitable subrogation for PIP benefits paid on behalf of an uninsured person.
There was no evidence presented demonstrating that Esurance knew about this fraud before Moore was injured, and there was no showing of how Esurance could have been more diligent in reviewing the insurance application or in detecting the fraud.
A determination of whether policy enforcement only serves to relieve the fraudulent insured of what would otherwise be the fraudulent insured's personal liability to the innocent third party.
In totality, the court of appeal concluded that the trial court abused its discretion by holding that Esurance had failed to show that rescission was warranted. The ultimate issue in innocent-third-party cases is which innocent party should bear the ultimate burden of the insured's fraud. In this case, Moore has already recovered benefits from an alternate source, and rescission will have no effect on that coverage. In other words, if the policy is rescinded, neither Esurance nor Moore would, in practical terms, bear the burden of Blair's fraud. Under these circumstances, the trial court's decision to deny rescission fell outside the range of principled outcomes.
The trial court was ordered to enter an order granting summary disposition in favor of Esurance.
ZALMA OPINION
No one should profit from fraud. Not even an innocent insurer that paid benefits under a no-fault insurance scheme since it would have had to pay even if there was no insurance on the other side. Esurance was entitled to rescind because it would never have insured the Gregorys but for the fraud in the inception.
(c) 2023 Barry Zalma & ClaimSchool, Inc.
Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos.
Subscribe and receive videos limited to subscribers of Excellence in Claims Handling at locals.com https://zalmaoninsurance.locals.com/subscribe.
Consider subscribing to my publications at substack at https://barryzalma.substack.com/publish/post/107007808
Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01
Barry Zalma, Esq., CFE, is available at http://www.zalma.com and [email protected]
Follow me on LinkedIn: http://www.linkedin.com/comm/mynetwork/discovery-see-all... 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://podcasters.spotify.com/pod/show/barry-zalma/support; 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; https://creators.newsbreak.com/home/content/post; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library.
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 ...
Employee Report of Fraud Results in Damages Suit After Qui Tam Suit Settled
No Statutory Hearing Right Arose Because No Dental Commission Complaint License Suspension, Revocation, Or Sanction Occurred.
Post 4855
Posted on October 2, 2026 by Barry Zalma
In Abbas Mohammadi et al. v. William M. Tong et al., No. AC 47598, Court of Appeals of Connecticut (September 29, 2026) Abbas Mohammadi owned and operated Columbia Dental, P.C., which provided dental services through multiple Connecticut offices; Columbia Oral Maxillofacial Imaging, LLC served as the billing entity.
From April 2012 to February 27, 2013, Columbia Dental employed Brittany Ames Mahoney as a dental assistant. During her employment, Mahoney claimed to have discovered certain billing irregularities, including, but not limited to, false and fraudulent reimbursement claims submitted to the Department of Social Services for services rendered to Medicaid beneficiaries. Mahoney filed a complaint and an affidavit in the United States District Court for the District of...
Another Anniversary for Barry Zalma, Inc
Posted on October 1, 2026 by Barry Zalma
From October 1, 1979 – 2026
Post 4854
Read the full issue of ZIFL at https://zalma.com/blog/wp-content/uploads/2026/09/ZIFL-10-01-2026.pdf Forty seven years ago today I left the world of the employed and became an entrepreneur by opening my own law firm. The law practice was incorporated shortly thereafter as Barry Zalma, Inc.
When I opened for business on October 1, 1979, I had no clients and no certainty that I would have any in the future. I had borrowed money from the bank to carry me through the first six months and was concerned about my ability to pay the loan with my third child about to be born.
Much to my surprise and pleasure, on October 1, 1979, at 8:10 a.m., the best claims handler in the London market, Alan Warboys, called from London and provided me with my first case as an independent lawyer to represent Certain Underwriters at Lloyd’s, London. He, and the Lloyd’s Underwriters he represented, showed faith in me as a lawyer and insurance expert. Alan is now, although ...
Defendants Successfully Moved for Summary Judgment
Post 4854
Posted on September 30, 2026 by Barry Zalma
In Jeffrey Wayne Phillips v. Creative Website Studios, et al., No. 5:23-CV-568-BO-BM, United States District Court, E.D. North Carolina, Western Division (September 28, 2026) the Court needed to rule on the order and memorandum and recommendation (“M&R”) of the Magistrate.
Jeffrey Wayne Phillips had contracted with Creative Website Studios and SR Telecommunications for website and hosting services. He alleged that defendants repeatedly billed him for hosting periods he had already paid for and later took down his website. Phillips claimed the outage prevented him from bidding on U.S. government security contracts and sought roughly $300 million in consequential damages.
LAW
Under North Carolina law, fraud requires a false material representation or concealment, intent and effect of deception, resulting damage, and reasonable reliance. Obtaining property by false pretenses similarly requires an ...