State Farm Obtains Injunction Against Doctor to Stop Fraudulent No Fault Accident Claims
Barry Zalma
Jul 20, 2023
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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.
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Commit Insurance Fraud While on Probation Violation Requires Jail
Post number 5322
Read the full article at https://lnkd.in/gfnYSb8a, see the video at https://lnkd.in/gEu8EzYq and at https://lnkd.in/gzrJdPfC and at https://zalma.com/blog plus more than 5300 posts.
Jail is Necessary When Probation is Violated
In United States of America v. Sabine Oltmann, No. 25-60578, United States Court of Appeals, Fifth Circuit (April 9, 2026), Sabine Oltmann pleaded guilty to unauthorized opening of mail by a postal employee and was sentenced to two years’ probation.
Just two months into that term, however, she violated the conditions of her probation by submitting a false insurance claim and falsely reporting a crime. The district court revoked her probation and sentenced her to twelve months’ imprisonment followed by twelve months of supervised release.
Oltmann contended that this above-Guidelines revocation sentence is substantively unreasonable.
The USCA reviewes probation-revocation sentences under the ...
Commit Insurance Fraud While on Probation Violation Requires Jail
Post number 5322
Read the full article at https://lnkd.in/gfnYSb8a, see the video at https://lnkd.in/gEu8EzYq and at https://lnkd.in/gzrJdPfC and at https://zalma.com/blog plus more than 5300 posts.
Jail is Necessary When Probation is Violated
In United States of America v. Sabine Oltmann, No. 25-60578, United States Court of Appeals, Fifth Circuit (April 9, 2026), Sabine Oltmann pleaded guilty to unauthorized opening of mail by a postal employee and was sentenced to two years’ probation.
Just two months into that term, however, she violated the conditions of her probation by submitting a false insurance claim and falsely reporting a crime. The district court revoked her probation and sentenced her to twelve months’ imprisonment followed by twelve months of supervised release.
Oltmann contended that this above-Guidelines revocation sentence is substantively unreasonable.
The USCA reviewes probation-revocation sentences under the ...
There is no Privity Between Adjuster & an Insured
A Claim Against an Insurer for Wrongful Conduct Cannot Be Maintained Against Its Adjuster
Post number 5321
See the video at https://lnkd.in/gH6wPd45 and at https://lnkd.in/gB-7JpHZ and at https://zalma.com/blog plus more than 5300 posts.
In Lambert v. SafePort Insurance Company, et al., Civil Action No. 25-1446 (E.D. La. Apr. 2, 2026) (Morgan, J.) Plaintiff Lisa Lambert held a homeowner’s insurance policy issued by SafePort Insurance Company covering her property against windstorms and wind damage. After two separate windstorms damaged her home (the “First Wind Claim” and “Second Wind Claim”), she promptly reported both losses and attempted to mitigate damages.
FACTUAL BACKGROUND
SageSure Insurance Managers LLC acted as the claims adjuster/manager for SafePort. In both instances:
A field adjuster inspected the property and denied coverage, attributing the damage to “foundation settling as a result of earth movement” (an excluded peril that allegedly caused water pooling on the ...
ZIFL – Volume 30, Issue 7 – April 1, 2026
THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL
Post number 5314
Posted on April 1, 2026 by Barry Zalma
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 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/ This issue contains the following articles about insurance fraud:
No One is Above the Law – Not Even a Police Officer
Police Officer Convicted for Fraud in Reporting an Accident Affirmed
Police Officer Should never Lie about Results of Chase
In State Of Ohio v. Anthony Holmes, No. 115123, 2026-Ohio-736, Court of Appeals of Ohio, Eighth District, Cuyahoga (March 5, 2026) a police officer appealed criminal conviction as a result of lies about a high speed chase.
Read the following article and the full issue of ZIFL at https://zalma.com/blog/wp-content/uploads/2026/03/ZIFL-04-01-2026-1.pdf...
ZIFL – Volume 30, Issue 7 – April 1, 2026
THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL
Post number 5314
Posted on April 1, 2026 by Barry Zalma
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 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/ This issue contains the following articles about insurance fraud:
No One is Above the Law – Not Even a Police Officer
Police Officer Convicted for Fraud in Reporting an Accident Affirmed
Police Officer Should never Lie about Results of Chase
In State Of Ohio v. Anthony Holmes, No. 115123, 2026-Ohio-736, Court of Appeals of Ohio, Eighth District, Cuyahoga (March 5, 2026) a police officer appealed criminal conviction as a result of lies about a high speed chase.
Read the following article and the full issue of ZIFL at https://zalma.com/blog/wp-content/uploads/2026/03/ZIFL-04-01-2026-1.pdf...
Posted on March 30, 2026 by Barry Zalma
Insurance Fraud, a Way to Reduce Violent Crime
Post number 5313
A Fictionalized True Crime Story of Insurance Fraud from an Expert who explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story helps to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the Perpetrators than any Other Crime.
She Taught Her Customers The Swoop And Squat:
Recently the California Insurance Department’s Fraud Division arrested a young woman in Los Angeles County for operating an insurance fraud school. She advertised her classes in the “Penny Saver” an advertising sheet distributed free to the public and a print version of Facebook, X Craig’s list. She had operated for several years teaching methods of committing automobile insurance fraud. Only after a police officer enrolled in one of her classes was she arrested.
Her defense ...