No Coverage for a Staged Accident

How to Collect Sufficient Evidence to Prove a Staged Accident Scheme

In a case involving multiple parties involved in an alleged side-swipe accident between a Honda and a limousine, Encompass Home & Auto Insurance Company and others collected a great deal of evidence, claimed they were the victims of a staged accident scheme and refused to pay the allegedly injured plaintiffs and the health care providers who provided services to the allegedly injured. The presented evidence to the Supreme Court of the State of New York and sought summary Judgment.

In Encompass Home & Auto Insurance Company v.  Elizinda Makendy, Maxime Makendy, Marclish Davidson, Alice Alarcon, et al, Index No. 160580/2015, 2020 NY Slip Op 31907(U), Supreme Court Of The State Of New York New York County Part IAS Motion 47EFM (June 12, 2020) the court considered a declaratory judgment suit brought by plaintiff, Encompass Home & Auto Insurance Company (Encompass).

The alleged staged automobile collision occurred on August 25, 2014. According to a certified police report, a 2000 Honda registered to Encompass’s insured, Elizinda Maxime, and operated by Marclish B. Davidson was involved in a sideswipe collision at approximately 1:50 am in Nassau County, New York with a 2007 Lincoln limousine operated by Bemba Keita. Alice Alarcon was a passenger in the Honda and the passengers in limousine were several. The Encompass policy was issued to Elizinda Maxime and Makendy Maxime. The limousine was owned by Paris Limousine Services and insured by American.

The Facts Establishing a Staged Accident

Subsequently, both Encompass and American opened investigations into the collision by among other things conducting examinations under oath of the individuals involved. Encompass’s and American’s investigations unearthed some of the following:

  • The driver of the Honda, Marclish B. Davidson resided at the time of the collision at 1290 Ocean Avenue, Brooklyn New York Apartment 3G and his full name is Marclish Baptiste Davidson.
  • On July 14, 2015 a Marclish Baptiste was involved in an automobile collision where he struck a livery vehicle in Brooklyn, New York.
  • According to the police report Marclish Davidson and Marclish Baptiste share the same date of birth, address and driver’s license number.
  • On July 14, 2015 Marclish was operating a Ford registered to Peterson Bellevue, residing at 15 Taylor Street, Johnson City, NY.
  • On May 26, 2015 the Bellevue vehicle was being operated by Gersey Louissant when it sideswiped a livery vehicle.
  • Alice Alarcon was a passenger in the Bellevue vehicle at the time, the same Alice Alarcon who was a passenger in the Encompass vehicle operated by Marclish on August 25, 2014
  • Gersey Louissant, the driver of the Bellevue vehicle on May 26, 2015, was friends with her May 26, 2015 passenger, Alice Alarcon.
  • Louissant was also friends with “Carly” and “Claud” residing at 499 Gates Avenue and had visited their apartment for parties (Ex 32, Examination Under Oath [EUO] of Louissant taken by Kemper Insurance, Peterson Bellevue’s insurer.
  • “Carly” and “Claud” are Carline Joseph and Joseph Blanc, passengers in the limousine that Marclish sideswiped with the Honda on August 25, 2014.
  • The 2000 Honda involved in the August 25, 2014 collision was purchased by Jefferson Juste but registered in his cousin’s name, Elizinda Maxime with whom he resides.
  • The Honda was insured by Elizinda and her husband, Makendy Maxime.
  • According to Elizinda Maxime, Juste gave her three different reasons why Marclish had the keys. First, he left them at Maxime’s house by mistake, second, he gave Marclish the car to help him move, and third, Marclish took the keys without permission.
  • Marclish testified that at the time of the collision he was driving a Nissan Pathfinder (not a Honda) owned by “Maxime” a female friend that he has known for two years but did not know her last name.
  • After the collision Marclish and Alarcon treated at the same medical facility located at Rutland Road and Utica Avenue in Brooklyn.
  • The passengers in the limousine also all treated at the same medical office.
  • Except for Jean Adolphe, all the limousine passengers testified that Joseph Blanc referred them to the medical facility
  • Jean Adolphe testified that Shana recommended the facility based upon the recommendation of an unknown friend.
  • The trip was arranged by Joseph Blanc or that they were going to a party for Blanc’s friend or family member.
  • The drivers of both vehicles and all their passengers are named defendants in this action.

DISCUSSION

An intentional and staged collision caused in the furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance [Progressive Advanced Ins. Co. v McAdam, 139 AD3d 691, 692 [2nd Dept 2016]). The Court of Appeals described the modus operandi of staged accident rings in Medical Society of the State of NY v Serio as follows: “[R]ingleaders (often associated with organized crime) [ ] purchase minimum automobile insurance, perhaps under a fraudulent name, on wrecked or salvaged vehicles, and recruit others to fill up the vehicles and participate in staged accidents (typically sideswipes or fender benders). These purported victims [are] then steered to corrupt medical clinics, called ‘medical mills,’ where they feign[] aches, pains and soft tissue injuries. The medical mills [ ] then generate stacks of medical bills for each passenger, detailing treatments and tests that [are] unnecessary or never performed.”

Since direct proof of insurance fraud is rarely available, the requisite degree of proof can be satisfied by circumstantial evidence. Circumstantial evidence at a framed issue hearing established that the subject collision was intentional. Marclish’s changing narratives surrounding the events of the accident are consistent with someone engaged in an ongoing staged accident ring. Marclish was involved in at least one other staged accident with a livery vehicle while he was driving a vehicle registered in someone else’s name. Marclish’s July 14, 2015, collision occurred while he was driving the Bellevue vehicle which was involved in at least three other staged accidents on May 26, 2015, October 6, 2015 and January 3, 2016 (Ex M). Not only was Marclish connected to the Bellevue staged accidents, so was Alice Alarcon who was a passenger in the Bellevue when it collided with a livery vehicle.

The direct and indirect interconnections among the individuals involved in the August 25, 2014 collision, in the absence of any explanation for these remarkable coincidences is sufficient evidence to establish that Marclish, Alarcon and Joseph Blanc staged the August 25, 2014 collision and Joseph Blanc recruited the passengers for the limousine.

Circumstantial evidence sufficient to establish prima facie that defendant was involved in a financial fraud conspiracy existed. Since plaintiff has made out its prima facie showing of entitlement of summary judgment, the burden shifts to defendants to demonstrate the existence of a triable issue of material fact and none were presented.

The motor vehicle collision of August 25, 2014 was not the product of a covered event as defined by the applicable insurance policy issued by Encompass Home & Auto Insurance Company, the August 25, 2014 collision was the product of a staged and/or intentional event and Encompass Home & Auto Insurance Company, by reason of no coverage, is not required to provide a defense and/or indemnification to any of the defendants.

The motor vehicle collision of August 25, 2014 was not the product of a covered event as defined by the applicable insurance policy issued by Encompass nor American Alternative Insurance Corp. The August 25, 2014 collision was the product of a staged and/or intentional event. American Alternative Insurance Corp. has no duty to either defend nor indemnify the defendants and cross-claim defendants in any action, claim, suit, arbitration or other type of proceeding brought as a result of the August 25, 2014 collision. American Alternative Insurance Corp. has no duty to provide coverage for any claims for No-Fault benefits, personal injury, property damage, uninsured motorist benefits or underinsured motorist benefits made by or on behalf of any person or entity in connection with the August 25, 2014 collision. American is entitled, on its cross-claim, to damages in the amount of insurance benefits conferred to the defaulting parties.

ZALMA OPINION

When an insurer – even in a no fault state like New York – believes it is the victim of a staged accident scheme it has two options: ignore the fact and pay or investigate thoroughly and fight. In this case the insurers investigated thoroughly, presented unimpeachable evidence to the court, and caused the “victims” of the accident to refuse to participate and only fought with the medical vendors who provided services to the fake victims. Every insurer faced with a staged accident should do what Encompass and American Alternative did in this case, fight the fraud, investigate thoroughly and file a declaratory relief action to get court approval of its conclusion.


© 2020 – Barry Zalma

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 a

n insurance coverage and claims handling lawyer and more than 52 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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