Guilty of Insurance Fraud Regardless of Specious Appeal

Claiming Loss that Happened Before Policy Inception Date is Fraud

Insurance only applies to a fortuitous event that occurs while the insurance policy is in effect. If a policy is purchased after an accident causing damage to a vehicle a claim presented saying the loss occurred after the effective date of the policy, is a fraud.

In Mohamad Saleh Awad v. The State of Texas, NO. 14-18-00250-CR, State of Texas in the Fourteenth Court of Appeals (July 9, 2019) Mohamad Saleh Awad appealed his conviction for insurance fraud.

BACKGROUND

Awad owns a towing company, Hemo Towing Service. Awad insured some but not all of his trucks with an insurance company, Progressive.

On June 2, 2014, one of Awad’s tow trucks was severely damaged in a wreck. The truck was not insured under Awad’s policy at that time. Awad told one of his employees to tow the truck to an RV park where the employee lived. That same day, Awad added the truck and the driver to his insurance policy. On June 11, Awad called Progressive and told them the truck had been in a wreck on June 10. Progressive declared the truck a total loss and paid Awad for its value and other costs, totaling $30,483.

Approximately four months later, Progressive received a tip from the employee who originally towed the wrecked vehicle to the RV park. The employee told Progressive that the accident had occurred on June 2, not June 10. Progressive referred the investigation to the National Insurance Crime Bureau.

Awad was indicted, tried and convicted. The trial court sentenced Awad to ten years’ confinement but suspended his sentence and placed Awad on community supervision for seven years. The court also assessed a $10,000 fine and ordered Awad to pay approximately $5,000 restitution. Disregarding the kindness of the trial judge and avoiding jail, Awad appealed his conviction.

ANALYSIS

Awad argued that the trial court erred in denying his motion to quash the indictment, which Awad claimed was insufficiently specific regarding the complainant’s identity. Awad contends that there is a fatal variance between the indictment and the proof presented at trial, again regarding the complainant’s identity.

Motion to Quash

According to Awad, a search for “Progressive” on the Texas Secretary of State’s website yields 1,501 results for corporations with “Progressive” in their name, and even a search for “Progressive Insurance” yields nine results.

If the charging instrument is deficient, a defendant may move to quash it. A motion to quash should be granted only when the language describing the defendant’s conduct is so vague or indefinite that it denies the defendant effective notice of the acts he allegedly committed.

When a motion to quash is overruled, a defendant suffers no harm unless he did not, in fact, receive notice of the State’s theory against which he would have to defend.

Presuming that the State was required to specifically identify the complainant in an indictment alleging insurance and further presuming that this indictment fails in that regard, the appellate court concluded Awad suffered no harm. Awad had actual knowledge that the Progressive entity alleged in the indictment was in fact Awad’s company’s automobile insurer. Awad attached to his motion to quash a copy of the insurance policy declarations page, which identifies the insurance policy for Hemo Towing and includes an itemized list of insured vehicles, drivers, and coverages. Additionally, the State provided two discs of business records from “Progressive” to Awad and informed Awad that it would introduce the records at trial. During discovery, the State also disclosed a finding from “Progressive Special Investigator” Oscar Zambrano.

The State’s pre-trial disclosures and Awad’s copy of his company’s automobile policy’s declarations page demonstrate that Awad knew which insurance company the State alleged Awad defrauded.

Fatal-Variance Argument

In his second issue, Awad argued that a fatal variance exists between the indictment and the evidence adduced at trial, specifically as to the identity of the complainant, Progressive.

Variances are mistakes of one sort or another, and they can be either material or immaterial. Immaterial variances between the allegation and the proof are little mistakes, generally not likely to prejudice a defendant’s substantial rights, such as the right to be protected against double jeopardy.

Courts routinely hold that minor variations of a complainant’s name are immaterial variances, so long as there is no dispute that the person or entity who was injured or victimized is the same person or entity alleged in the indictment.

Here, the indictment identified “Progressive” as the complainant and the evidence at trial proved that Awad committed insurance fraud against “Progressive” or “Progressive County Mutual Ins Co.” The whistleblowing employee from Hemo Towing testified that he called “Progressive” and told “Progressive” that Awad’s insurance claim contained false information. Awad also testified, repeatedly referred to “Progressive” as the insurer at issue, and denied that he had “any type of intent to defraud Progressive.” The documents provided as proof of the insurance policy—including the changes Awad made adding the wrecked truck and the truck driver to the coverage—show that “Progressive County Mutual Ins Co” underwrote the policy.

The variance, if it existed, was immaterial since he had the policy in his possession. There was no dispute at trial that “Progressive” and “Progressive County Mutual Ins Co” were the same entity—the entity the State proved Awad defrauded.

Having overruled Awad’s two issues, the court affirmed the trial court’s judgment.

ZALMA OPINION

Insurance fraud criminals have unbelievable chutzpah to bring an appeal as stupid as this one where he claimed the state failed to advise him of the identity of the insurer who he defrauded when he attached the policy to one of his pleadings identifying the insurer he defrauded not to mention the detailed documents provided to him by the prosecutors. His probation should be revoked and he should be required to serve the seven years for bringing this frivolous appeal.


© 2019 – 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.

Over the last 51 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

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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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