Don’t Jump In Car After Accident & Claim Injury

Insurance Fraud Conviction Upheld

Insurance fraud is a temptation difficult to resist, especially if you are a person with a history of criminal conduct. Even though insurance fraud is seldom prosecuted it is prosecuted and when it is, it is prosecuted with vigor.

One such temptation met its match in The People v. Deborah Carter, C083541, C084717, Court Of Appeal Of The State Of California Third Appellate District (Sacramento) (August 1, 2018) Deborah Carter was initially charged with several counts of insurance fraud and failing to appear. A jury found her guilty of the insurance fraud counts and the state eventually gave up the failure to appear charges.

BACKGROUND

Defendant was initially charged with five counts: three counts of insurance fraud (California Penal Code § 550, subds. (a)(1), (5), and (b)(1); counts 1-3); and two counts of failure to appear while released on bail (§ 1320.5; counts 4 & 5). The state dropped counts 4 & 5.

The insurance fraud counts arose from a car accident: a van hit a small sedan driven by defendant’s husband. Defendant claimed she was sitting in the front passenger seat at the time of the accident. As a result of the accident, defendant submitted an injury claim to the insurance company for the van. The sole contested issue was whether defendant was inside the sedan when it was hit. The accident occurred outside a day sanctuary for homeless people. Two witnesses testified to the accident: a security guard and a street monitor.

The security guard testified he was sitting on a front porch when he saw the sedan pull up in front of the women’s facility. He saw a “young lady” exit the sedan and walk into the women’s facility.

A van was also parked outside. The guard watched the van being loaded before it started to pull out. As the van moved, the sedan approached, stopping right behind the van. The van then backed into the sedan. After the accident, the security guard saw the same young lady come from the direction of the women’s facility and yell at the van driver.

At trial, the guard was asked if he saw the young lady in the courtroom and said, “It’s been so long, no.” The guard also testified he did not know how many people were in the sedan when he first saw it.

A street monitor also testified to seeing the accident. He saw the sedan parked in front of the women’s facility. Because the sedan was not supposed to be parked there, he approached and told the man in the driver’s seat to move the car. The monitor saw no one but the driver inside the sedan.

The street monitor then went into the kitchen. He recalled being in the kitchen for two minutes at most. When he came out, he saw a van had backed into the sedan — he did not see the actual collision.

He then saw a very upset woman coming out of the woman’s facility. She was yelling and waving her arms, saying the car was a rental.

Defendant was found guilty on all three insurance fraud counts. The trial court imposed a six-year aggregate term consisting of the five-year upper term on count one along with a one-year enhancement for defendant’s prior prison term.

DISCUSSION

The security guard’s description of the “young lady,” according to the Defendant, exiting the car did not match her description as she was 55 at the time. I don’t know how old the security guard was but I’m 76-years-old and, to me a woman only 55 is a “young lady.”

The basic substantial evidence test is well settled, requiring that ” ‘we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Abilez (2007) 41 Cal.4th 472, 504; see People v. Raley (1992) 2 Cal.4th 870, 891 [substantial evidence ” ‘ “reasonably inspires confidence” ‘ “].)

The security guard saw a “young lady” exit the sedan for the women’s facility just before the accident. And just after the accident, he saw the same young lady walk to the van from the women’s facility. That testimony accords with the street monitor’s testimony that just before the accident, no one but the driver was inside the sedan. And just after the accident an upset woman came from the women’s facility.

From that, a jury could reasonably conclude defendant left the sedan just before the accident and returned just after. The fact that the security guard referred to the woman as a “young lady,” the fact he could not identify the woman in the courtroom, and the fact the street monitor was in the kitchen during the accident did not preclude a jury from reasonably concluding from the evidence as a whole that defendant was not in the sedan during the accident.

ZALMA OPINION

The U.S. is fast becoming a geriatric nation. People find it easy to steal from insurance companies. Judges, juries and seasoned citizens like your author, consider a 50 year old woman to be a “young lady.” Much to Ms. Carter’s surprise the insurance company and state investigated, found the two witnesses that established she was not in the car at the time of the accident, that her claimed injuries were false and fraudulent, and the state successfully prosecuted Ms. Carter who will serve six years in prison.


© 2018 – Barry Zalma

This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

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 also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

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The author and publisher disclaim any liability, loss, or risk incurred as a consequence, directly or indirectly, of the use and application of any of the contents of this blog. The information provided is not a substitute for the advice of a competent insurance, legal, or other professional. The Information provided at this site should not be relied on as legal advice. Legal advice cannot be given without full consideration of all relevant information relating to an individual situation.

 

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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