Unjust Enrichment is an Non-Contract Remedy
Post 5158
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When an Insurer is Defrauded it Should Sue For Fraud Only
MONY Life Insurance Company v. Bernard R. Perez, No. 23-10770, United States Court of Appeals, Eleventh Circuit (July 23, 2025) resulted in a decision that allows an insured of a Disability Insurance policy to successfully defraud his insurer.
The case involved a dispute between MONY Life Insurance Company and Bernard R. Perez, an ophthalmologist, over a disability insurance contract. Perez was diagnosed with throat cancer in 2011 and began receiving monthly disability benefits from MONY. However, MONY later suspected Perez of dishonesty in his disability claims and discontinued payments in 2018.
FACTS
In 1987, ophthalmologist Bernard R. Perez formed a for-profit medical practice in Tampa, Florida. Soon thereafter, in June 1988, Perez applied for, and, in September 1988, was issued a disability insurance policy by MONY Life Insurance Company.
Perez underwent successful surgery in June 2011 and was subsequently treated with proton beam radiation therapy in July and August 2011. Since his treatment, Perez has been cancer-free. Perez submitted a disability claim form to MONY in July 2011 asserting that he was unable to work, and in August 2011 he began receiving monthly disability benefits.
KEY ISSUES
Unjust Enrichment Claim
MONY sued Perez for unjust enrichment, claiming he received benefits he was not entitled to due to misrepresentations about his medical condition and financial information. The jury initially awarded MONY $388,000, but the USCA set aside this verdict, stating that an unjust enrichment claim cannot lie when there is an express contract covering the same subject matter.
Breach of Contract Counterclaim:
Perez counterclaimed for breach of contract, arguing that MONY wrongfully stopped his benefits. The jury found in favor of MONY, and the USCA affirmed this verdict, noting that Perez had submitted false and misleading information in his proofs of loss.
ELEVENTH CIRCUIT’S CONCLUSION
MONY determined that Perez may have been dishonest in submitting basic information related to his disability and his financial condition, and, in February 2018, it discontinued making further payments to Perez.
MONY sued Perez for unjust enrichment and Perez counterclaimed for breach of contract. After a nine-day trial, during which extensive evidence established Perez’s deceitful conduct, a jury returned a verdict in favor of MONY on its unjust enrichment claim, awarding it $388,000.
At trial, MONY convincingly demonstrated that many of the business expenses submitted by Perez were untruthful. Moreover, MONY established that Perez was deceptive in reporting how many hours he worked.
After a nine-day trial, the jury ultimately determined that Perez had been unjustly enriched and that MONY did not breach the insurance contract. Accordingly, the jury awarded MONY $388,000 in damages accrued between August 2015 and January 2018.
DISCUSSION
Florida courts have held that a plaintiff cannot pursue a quasi-contract claim for unjust enrichment if an express contract exists concerning the same subject matter holding that a plaintiff cannot pursue an equitable theory, such as unjust enrichment or quantum meruit, to prove entitlement to relief if an express contract exists that covers the same topic.
MONY’s unjust enrichment claim failed under Florida law because it covers the same subject matter as the insurance contract.
While MONY attempted to amend its complaint (for the fourth time) to assert a claim for fraud, very late in the day of this protracted litigation, the district court exercised its considerable discretion in denying the motion in the interests of timing and efficiency.
The USCA concluded that the district court erred under Florida law in allowing MONY’s unjust enrichment claim to move forward. The claim should not have been sent to the jury. Accordingly, the USCA set aside the jury verdict in favor of MONY on its unjust enrichment claim and, on remand, directed the district court to vacate its judgment awarding MONY $448,930.06.
The evidence adduced at trial overwhelmingly established that Perez repeatedly submitted false and misleading information material to his proofs of loss.
ZALMA OPINION
MONY was too smart by half for its own good in this case where it had overwhelming evidence the Dr. Perez misrepresented material facts when he presented claims and proofs of loss which proof of fraud was affirmed on appeal. However, with a cause of action for the blatant fraud available to MONY it did not sue for fraud. Because MONY did not sue for fraud and its attempt to amend the complaint until its 4th attempt to amend was too late. Common law fraud would have allowed MONY to seek every dollar paid to Perez plus extracontractual damages but tried to be “nice” by only seeking non contractual relief.
(c) 2025 Barry Zalma & ClaimSchool, Inc.
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ZIFL – Volume 29, Issue 15
Read the full issue of ZIFL at https://zalma.com/blog/wp-content/uploads/2025/07/ZIFL-08-01-2025.pdf, at https://www.linkedin.com/pulse/zalmas-insurance-fraud-letter-august-1-2025-barry-zalma-esq-cfe-eailc, see the full video at and at and at https://zalma.com/blog plus more than 5150 posts.
THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL
Post 5159
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/
Read the full 24 Page August 1, 2025 issue of ZIFL at https://zalma.com/blog/wp-content/uploads/2025/07/ZIFL-08-01-2025.pdf
The Contents of the August 1, 2025 Issue of ZIFL Includes
No Good Deed Goes Unpunished
GEICO Sued Fraudulent Health Care ...
Unjust Enrichment is an Non-Contract Remedy
Post 5158
See the full video at https://lnkd.in/gv2iv_St and at https://lnkd.in/gdqVihMa, and at https://zalma.com/blog plus more than 5150 posts.
When an Insurer is Defrauded it Should Sue For Fraud Only
MONY Life Insurance Company v. Bernard R. Perez, No. 23-10770, United States Court of Appeals, Eleventh Circuit (July 23, 2025) resulted in a decision that allows an insured of a Disability Insurance policy to successfully defraud his insurer.
The case involved a dispute between MONY Life Insurance Company and Bernard R. Perez, an ophthalmologist, over a disability insurance contract. Perez was diagnosed with throat cancer in 2011 and began receiving monthly disability benefits from MONY. However, MONY later suspected Perez of dishonesty in his disability claims and discontinued payments in 2018.
FACTS
In 1987, ophthalmologist Bernard R. Perez formed a for-profit medical practice in Tampa, Florida. Soon thereafter, in June 1988, Perez applied for, and, in September 1988, was ...
USDC Bends Over Backwards to Give a Pro Se Plaintiff Some Causes of Action
Post 5157
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When You Represent Yourself in Litigation You Have a Fool for a Lawyer
Plaintiff Gordon Clark, proceeding pro se, sued Defendant Olga L. Orengo and her auto insurance carrier, The Hanover Insurance Group, Inc. (“Hanover”), related to a motor vehicle collision between Plaintiff and Orengo. Plaintiff alleged that Orengo was at fault for the accident, but Hanover has refused to accept liability. In Gordon Clark v. The Hanover Insurance Group, Inc., No. 3:24-cv-348 (SVN), United States District Court, D. Connecticut (July 22, 2025)
Claims and Motions
Plaintiff has brought eight claims against both Defendants and a ninth claim against Hanover for alleged violations of Plaintiff’s rights under federal and state law. Defendants have both moved to dismiss Plaintiff’s amended complaint in full for failure to state a claim. The ...
Rulings on Motions Reduced the Issues to be Presented at Trial
Read the full article at https://lnkd.in/gwJKZnCP and at https://zalma/blog plus more than 5100 posts.
CASE OVERVIEW
In Richard Bernier v. State Farm Mutual Automobile Insurance Company, No. 4:24-cv-00002-GMS, USDC, D. Alaska (May 28, 2025) Richard Bernier made claim under the underinsured motorist (UIM) coverage provided in his State Farm policy, was not satisfied with State Farm's offer and sued. Both parties tried to win by filing motions for summary judgment.
FACTS
Bernier was involved in an auto accident on November 18, 2020, and sought the maximum available UIM coverage under his policy, which was $50,000. State Farm initially offered him $31,342.36, which did not include prejudgment interest or attorney fees.
Prior to trial Bernier had three remaining claims against State Farm:
1. negligent and reckless claims handling;
2. violation of covenant of good faith and fair dealing; and
3. award of punitive damages.
Both Bernier and State Farm dispositive motions before ...
ZIFL Volume 29, Issue 10
The Source for the Insurance Fraud Professional
See the full video at https://lnkd.in/gK_P4-BK and at https://lnkd.in/g2Q7BHBu, and at https://zalma.com/blog and at https://lnkd.in/gjyMWHff.
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/ You can read the full issue of the May 15, 2025 issue at http://zalma.com/blog/wp-content/uploads/2025/05/ZIFL-05-15-2025.pdf
This issue contains the following articles about insurance fraud:
Health Care Fraud Trial Results in Murder for Hire of Witness
To Avoid Conviction for Insurance Fraud Defendants Murder Witness
In United States of America v. Louis Age, Jr.; Stanton Guillory; Louis Age, III; Ronald Wilson, Jr., No. 22-30656, United States Court of Appeals, Fifth Circuit (April 25, 2025) the Fifth Circuit dealt with the ...
Professional Health Care Services Exclusion Effective
Post 5073
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This opinion is the recommendation of a Magistrate Judge to the District Court Judge and involves Travelers Casualty Insurance Company and its duty to defend the New Mexico Bone and Joint Institute (NMBJI) and its physicians in a medical negligence lawsuit brought by Tervon Dorsey.
In Travelers Casualty Insurance Company Of America v. New Mexico Bone And Joint Institute, P.C.; American Foundation Of Lower Extremity Surgery And Research, Inc., a New Mexico Corporation; Riley Rampton, DPM; Loren K. Spencer, DPM; Tervon Dorsey, individually; Kimberly Dorsey, individually; and Kate Ferlic as Guardian Ad Litem for K.D. and J.D., minors, No. 2:24-cv-0027 MV/DLM, United States District Court, D. New Mexico (May 8, 2025) the Magistrate Judge Recommended:
Insurance Coverage Dispute:
Travelers issued a Commercial General Liability ...
