State Farm Obtains Injunction Against Doctor to Stop Fraudulent No Fault Accident Claims
Barry Zalma
Jul 20, 2023
Read the full article at https://lnkd.in/g5U2vRJf and see the full video at https://lnkd.in/g5_iRddj and at https://lnkd.in/gdtxi3jZ and at https://zalma.com/blog plus more than 4550 posts.
In State Farm Mutual Automobile Insurance Company, State Farm Fire and Casualty Company v. Herschel Kotkes, M.D., P.C., Herschel Kotkes, M.D., No. 22-cv-03611-NRM-RER, United States District Court, E.D. New York (July 13, 2023) Plaintiffs, various State Farm insurers sued Herschel Kotkes and Herschel Kotkes, M.D., P.C. (“Kotkes”), alleging that Dr. Kotkes defrauded State Farm by submitting hundreds of fraudulent bills for no-fault insurance charges on behalf of insured patients who were involved in automobile accidents.
State Farm alleged common law fraud and unjust enrichment, seeking damages for benefits paid under no-fault insurance policies to Kotkes. State Farm also sought a declaratory judgment establishing that, among other things, it is not obligated to pay unpaid, pending claims submitted by Kotkes.
BACKGROUND
Under New York Law, an automobile insurer must provide no-fault insurance benefits to the individuals they insure (“insureds”) for necessary healthcare expenses resulting from automobile injuries, for up to $50,000. No-fault insurers like State Farm may reimburse patients without requiring proof of negligence. An insured may assign their claim to their provider, who then bills the insurers directly.
Factual Allegations
Defendants are Dr. Herschel Kotkes (“Kotkes”) and his medical practice, Herschel Kotkes, M.D., P.C. Kotkes is a pain management specialist, whose practice includes treating insureds who have been involved in automobile accidents. The insureds assign their policies to Kotkes, who bills State Farm for the treatment purportedly rendered.
State Farm alleged that Kotkes, since at least 2017, has been systematically submitting fraudulent and misleading claims to State Farm. Kotkes almost always described patient complaints in the same way (as non-specific neck and/or low back pain), diagnosed 99% of patients with radiculopathy in either the lumbar or cervical region, or both, along with “intervertebral disc displacement” in the corresponding region, but without specifying the particular location on the spine. The random sample of eighty-six patients also reveals that Kotkes provided the same prognosis for 98% of those he treated and recommended the same combination of treatment methods for nearly all patients.
State Farm asserted three causes of action: for common law fraud and unjust enrichment, under which it seeks damages for claims already paid to Kotkes, and for a declaratory judgment, under which State Farm seeks a judgment declaring that Kotkes is not entitled to reimbursement for claims submitted to State Farm that have not been paid to date and are unpaid through the pendency of this litigation.
COMMON LAW FRAUD
Under New York law, to state a claim for fraud, a plaintiff must demonstrate
1 a material misrepresentation or omission of fact;
2 which the defendant knew to be false;
3 which the defendant made with the intent to defraud;
4 upon which the plaintiff reasonably relied; and
5 which caused injury to the plaintiff.
State Farm points to Kotkes’s own testimony, from an examination under oath in a state court collection action, where he testified, for one, that he does not believe that certain procedures are medically valuable, but that he performs them as a matter of course. Kotkes also testified that it is his practice to perform a percutaneous discectomy and an IDET-two mutually exclusive procedures-at the same time and using the same needle.
State Farm adequately alleged that Kotkes had motive to commit fraud: to gain a financial benefit of hundreds of thousands of dollars in insurance payments by submitting claims to State Farm. State Farm also adequately alleges that Kotkes had opportunity to commit fraud, specifically that Kotkes could submit claims to State Farm that allegedly misrepresented the necessity of certain treatments or inflated the bills for certain treatments.
State Farm adequately pled that it reasonably relied on Kotkes’s misrepresentation and was injured as a result. State Farm has alleged the elements of common law fraud. State Farm has adequately and plausibly alleged that Kotkes made fraudulent statements in submitting the claims at issue. State Farm alleges fraudulent knowledge and intent by showing Kotkes’s motive and opportunity to submit fraudulent claims to take advantage of New York’s no-fault insurance scheme. Common law fraud is sufficiently pled and Kotkes’s motion to dismiss the common law fraud count was denied.
DECLARATORY JUDGMENT
State Farm has established a substantial controversy between the parties: whether Kotkes is entitled to payment on pending claims presented to State Farm, or whether, due to Kotkes’s allegedly fraudulent scheme, State Farm is under no obligation to pay.
MOTION FOR A PRELIMINARY INJUNCTION
State Farm alleges that, as of March 23, Kotkes initiated 103 arbitrations and 95 state court lawsuits seeking payment on claims that State Farm has refused to pay since uncovering the alleged fraudulent scheme and initiating the instant federal lawsuit. As of March 24, 2023, approximately $1,188,841.32 in unpaid claims was at issue in pending state court litigation and arbitrations, and $1,787,989.98 of Kotkes’s billed-unpaid amount was not yet the subject of pending collections litigation or arbitration.
New York courts routinely stay collection actions pending declaratory judgment proceedings. Accordingly, State Farm’s request that the USDC stay pending no-fault collection actions in state court was granted.
State Farm’s motion for a preliminary injunction was granted in full. Specifically, the Court granted State Farm’s request to stay pending state civil court proceedings and no-fault arbitrations against State Farm by Kotkes, and enjoined Kotkes from filing any new collection actions against Kotkes seeking no-fault insurance benefits, whether in state court or in arbitration proceedings, pending resolution of the declaratory judgment action, absent further order of the Court. State Farm’s obligation to post security was waived.
ZALMA OPINION
Because insurance fraud – especially with regard to individual small amounts – the only means of deterring or defeating insurance fraud relating to no-fault insurance claims assigned to less than scrupulous health care providers is to sue the providers for fraud. State Farm should be commended for its proactive work against Dr. Kotkes and was properly provided an injunction stopping further claims while litigating the declaratory relief and fraud suit. The evidence appears overwhelming and I look forward to reading about the results at trial.
(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
Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257
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; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library.
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://lnkd.in/gfFKUaTf. Consider subscribing to substack at https://lnkd.in/gcZKhG6g; Insurance Claims Library – https://lnkd.in/gWVSBde.
Go to https://lnkd.in/g8azKc34
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 ...
Psychiatrist Who Was Convicted of Fraud Asked the First Circuit to Reduce his Punishment
Post 4851
Posted on September 24, 2026 by Barry Zalma
Fraud to Private and Public Health Insurers Doesn’t Pay
In United States v. Gustavo Kinrys, Nos. 24-1592, 24-1716, United States Court of Appeals, First Circuit (September 21, 2026) Gustavo Kinrys, a Massachusetts psychiatrist, submitted fraudulent claims to private and public health insurers from 2015 through 2018, including bills for more than 1,000 sessions when he or the purported patient was outside the country. When insurers requested supporting records, he delayed through a fictitious office manager and created false documentation.
A jury convicted Kinrys on fourteen counts. The district court imposed a 99-month sentence, calculated intended loss at slightly more than $19 million based on billed amounts, ordered $6,537,309.59 in restitution, and ordered $6,527,391.19 in forfeiture.
At sentencing, the district court calculated Kinrys’s base offense level to be ...
The Collateral-Source Rule is a Narrow Exception to the Prohibition Against Double Recovery
Post 4850
Posted on September 23, 2026 by Barry Zalma
A Surety Stands In The Principal’s Shoes And May Assert The Principal’s Defenses.
In Hudson Insurance Company v. Archer Western Federal, JV, No. 1:24-cv-544 (PTG/IDD), United States District Court, E.D. Virginia, Alexandria Division (September 18, 2026) Archer Western Federal, JV (“AWF”), the prime contractor for a new fire station at Marine Corps Base Quantico, subcontracted roofing work to Eastern General Contractor, Inc. (“EGC”) for $456,330.
Hudson Insurance Company (“Hudson”) issued payment and performance bonds, each with a $456,330 penal sum.
AWF later sought recovery under both bonds.
LAW
Under Virginia law, the collateral-source rule is a narrow exception to the prohibition against double recovery. A surety stands in the principal’s shoes and may assert the principal’s defenses. Liability under the bonds required EGC’s ...
Defendants May Not Enjoin a Suit Alleging They Defrauded the Plaintiffs
Plaintiffs, automobile insurers, sued medical professionals and healthcare entities, alleging a scheme to submit fraudulent personal injury protection (PIP) bills and supporting documentation for services that were not performed or were medically unnecessary. The complaint asserted common-law fraud, violations of the New Jersey Insurance Fraud Prevention Act (IFPA), aiding and abetting fraud, unjust enrichment, and declaratory relief.
While the action was pending, Plaintiffs moved to stay and enjoin related PIP arbitrations. A magistrate judge recommended denial. in State Farm Guaranty Insurance Company v. Tri-County Chiropractic And Rehabilitation Center P.C., Civil Action No. 22-4852, United States District Court, D. New Jersey (September 15, 2026)
After the New Jersey Supreme Court decided Allstate New Jersey Insurance Company v. Carteret Comprehensive Medical Care, P.C., the federal court reopened the case and considered the parties’ supplemental...