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 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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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 ...
Inadequately Briefed Issues Defeats Appeal
Post 4852
Issues on Appeal Must be Adequately Briefed
Posted on September 25, 2026 by Barry Zalma
In Emy Ojekwe v. Connecticut Transit District Consortium, No. AC 47389, Court of Appeals of Connecticut (September 22, 2026) Emy Ojekwe alleged that he was injured on September 24, 2020, while leaving a bus operated by Connecticut Transit District Consortium, doing business as Greater Bridgeport Transit Authority.
According to his complaint, the wheelchair ramp began to rise before he had fully exited, causing his wheelchair to fall backward and allegedly injuring several parts of his body and damaging the wheelchair. The defendant denied negligence and alleged comparative negligence. After a two-day jury trial in November 2023, the jury returned a defense verdict.
The trial court denied Ojekwe’s motion to set aside the verdict and for a new trial, and he appealed.
LAW
A trial court’s refusal to set aside a verdict because of counsel’s improper remarks is reviewed for abuse of ...
Inadequately Briefed Issues Defeats Appeal
Post 4852
Issues on Appeal Must be Adequately Briefed
Posted on September 25, 2026 by Barry Zalma
In Emy Ojekwe v. Connecticut Transit District Consortium, No. AC 47389, Court of Appeals of Connecticut (September 22, 2026) Emy Ojekwe alleged that he was injured on September 24, 2020, while leaving a bus operated by Connecticut Transit District Consortium, doing business as Greater Bridgeport Transit Authority.
According to his complaint, the wheelchair ramp began to rise before he had fully exited, causing his wheelchair to fall backward and allegedly injuring several parts of his body and damaging the wheelchair.
LAW
Refusal to set aside a verdict because of counsel’s improper remarks is reviewed for abuse of discretion.
Appellate claims receiving only cursory treatment, without record citations, supporting authority, or legal analysis, are inadequately briefed.
DISCUSSION
Improper opening remarks.
Defense counsel referred to Ojekwe’s national origin,...
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 ...
