WITHDRAWAL OF FRAUDULENT PORTION OF CLAIM DOES NOT ELIMINATE FRAUD

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Star Casualty Insurance Company appealed a summary final judgment and attorney fee award entered in favor of Gables Insurance Recovery, Inc., as assignee of Star Casualty’s insured, Ana Maria Correa. Star Casualty alleges that the trial court erred by granting summary judgment due to genuine issues of material fact concerning whether Correa’s medical bills for diagnostic imaging procedures were medically necessary and related to the underlying accident for purposes of section 627.736, Florida Statutes. Additionally, Star Casualty alleged that the trial court reversibly erred by striking four affirmative defenses from its amended answer that could have exempted it from liability for the claim.

In Star Casualty Insurance Company v. Gables Insurance Recovery, Inc., a/a/o Ana Maria Correa, Nos. 3D21-0033, 3D21-0377, Florida Court of Appeals, Third District (July 20, 2022) the Court of Appeal was faced with an attempt to avoid the consequences of being caught on a partial fraud only to have the plaintiff withdraw the claim and contend the rest of the claim was honest.

FACTS

Correa was involved in a vehicle accident on January 19, 2009 and sustained injuries. Subsequently, Correa received diagnostic imaging procedures costing a total of $3,375.00, and Gables, as her assignee, submitted a claim to the insurer for reimbursement of eighty percent of the reasonable medical expenses pursuant to section 627.736(1)(a). After the insurer paid only $400.71 and denied the remainder of the claim, Gables sued to recover the remaining costs.

Star Casualty proffered an affidavit by Edward A. Dauer, M.D., opining that the charges were not medically necessary or related to the accident. This affidavit also noted that three of the imaging procedures performed on Correa appeared to have been improperly upcoded or unbundled with other procedures.

Based on Dr. Dauer’s affidavit, Star Casualty amended its answer to add affirmative defenses asserting that it was exempt from paying the entire because the three charges were fraudulent, upcoded, or unbundled. Prior to the summary judgment hearing, Gables voluntarily withdrew its claims for reimbursement of the three charges on which Star Casualty based its affirmative defenses. Gables then moved to strike the defenses from Star Casualty’s answer, alleging that the withdrawal of the claims for those three charges made the corresponding defenses irrelevant and moot.

The trial court granted partial summary judgment on the relatedness and necessity issues and granted Gables’ motion to strike the affirmative defenses based on plaintiff’s withdrawal of the part of the claim found to be fraudulent.

ANALYSIS

The Court of Appeal noted that the trial court erred by finding that Dr. Dauer’s affidavit did not create a genuine issue of material fact. An issue of fact is “genuine” for summary judgment purposes when a reasonable jury could potentially return a verdict in favor of the non-moving party. A factual dispute is “material” when it may affect the outcome of the case under the applicable substantive law.

The sole basis for Star Casualty’s assertions of a factual dispute as to relatedness and necessity comes from Dr. Dauer’s affidavit. In the affidavit, Dr. Dauer opined that the images conducted were “not medically necessary and not related to the accident of 1/19/2009” because “there were no objective findings and documentation to warrant the ordering of the x-rays in this case.” Because these findings created a genuine issue of material fact as to relatedness and necessity, the Court of Appeal concluded that the summary judgment must be reversed and remanded.

On remand, the trial court’s order striking Star Casualty’s affirmative defenses was reversed, as the defenses were not wholly irrelevant to the claims in the operative complaint. An affirmative defense may not be stricken merely because it appears to a judge that the defendant may be unable to produce evidence at trial to sustain such a defense.

The trial court’s reasoning for striking the defenses was based solely on the fact that the claims for reimbursement of the charges relating to those defenses had been voluntarily withdrawn. Conversely, Star Casualty claims that because the defenses asserted fraud, upcoding, and unbundling, such defenses pertained to the remaining charges.

Any insurance fraud voids all coverage.  arising from the claim related to such fraud under the personal injury protection coverage of the insured person who committed the fraud, irrespective of whether a portion of the insured person’s claim may be legitimate.

An insurer is not required to pay a claim or charges that are  upcoded, or that is unbundled when such treatment or services should be bundled and Florida statutes relieve both the insurer and the insured from paying the claims of any person who knowingly submits a false or misleading statement relating to the claim or charges.

Evidence of insurance fraud necessitated summary judgment in favor of an insurer to the entire PIP claim comprising two separate and distinct claims for medical expenses and lost wages, since allowing for payment of one portion of a claim would nonsensically allow an insured to engage in a cost-benefit analysis with respect to the contemplation of such fraud.

ZALMA OPINION

A party seeking insurance benefits may not commit a little fraud any more than he or she can be a little dead. When caught in fraud, as evidenced by an expert, the fraud attempt cannot be ignored by simply deleting it from the claim since the insurer, by proving some fraud, will convince the trier of fact that the entire claim was fraudulent or that the attempted fraud voided the right to the benefits of the policy. Attempted fraud whether large of small; whether related to one part of a claim or another.

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(c) 2022 Barry Zalma & ClaimSchool, Inc.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

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