You Can’t Submit a Small Fraud & Still Collect

Insurer’s Video Establishes Fraudulent Claims

Mona Powell sued for automobile negligence, Renald Powell sued for a declaratory judgment to confirm his right to indemnification under Farm Bureau’s no-fault insurance policy with Mona Powell. Farm Bureau moved for summary disposition on the ground that there had been fraud in the underlying lawsuits. The trial court initially denied defendant’s motion for summary disposition, but on reconsideration held that Renald was a participant in Mona’s fraud to recover benefits under the policy, and therefore, defendant’s obligation to indemnify Renald was “limited to the minimum amounts required by Michigan’s Financial Responsibility Act.” Mona now appeals, and Renald cross-appeals, as of right.

In Renald Powell, and Mona Powell, also known as Mona Lockett v. Farm Bureau Insurance Company, No. 344004, State of Michigan Court Of Appeals (May 14, 2020) the court dealt with fraudulent claims for attendant care Farm Bureau voided PIP coverage and refused to pay claims.

FACTS

In August 2014, Mona and plaintiff Renald Powell purchased a business no-fault automobile insurance policy for Momo’s Transport (a planned but non-existent business) from Farm Bureau. The policy insured a Chrysler 300 and one other vehicle. The policy included liability coverage with a limit of $1,000,000. On November 28, 2014, Renald was driving the Chrysler vehicle with Mona as a passenger. A vehicle driven by Kristal Scott struck the side of the Chrysler. After the accident, Mona was treated at a hospital. In the months that followed, Mona received treatment from her primary care physician and the Michigan Brain and Spine Institute. She was referred for physical therapy. She submitted claims to Farm Bureau for personal injury protection (PIP) benefits, including medical benefits, replacement services, and 24-hour attendant care provided by Shanique Hodge, Jimmie Ford, and Renald’s son, Loren Miller.

The trial court granted Farm Bureau’s motion for summary disposition of Mona’s first-party claims on the basis of its determination that she submitted fraudulent claims for attendant care benefits, thereby voiding coverage under the policy.

ANALYSIS & PROOF OF FRAUD

In addition to the evidence submitted regarding the first party claim, defendant submitted additional evidence in support of its argument that Renald also was a participant in that fraud, which, defendant argued, voided Renald’s claim for liability coverage. The trial court relied on both sets of evidence to independently find in this case that there was no genuine issue of material fact regarding Mona’s fraud and Renald’s participation in that fraud.

The trial court found that video surveillance evidence submitted by defendant showed that Mona’s claims for attendant care benefits were fraudulent because the evidence showed that care providers did not arrive at Mona’s house on several days on which she claimed they provided attendant care. The trial court determined that Hodge’s affidavit did not establish a question of fact because it was “blatantly” contradicted by the video evidence.

here is no evidence that Hodge accessed the Powell house in a manner that could have avoided the video. The video tells a different story than that posited by care giver Hodge. Rather than showing Hodge arriving at the Powell house as she described each day at 8:00 p.m. and leaving as she described at 8:00 a.m., no activity can be seen. The videos do not show any individual walking across the Powell’s yard to their fence and no car is seen picking Hodge up or dropping her off. Based on the surveillance videos, the court was compelled to find that the claims of Hodge, Mona, and Renald that she came to the Powell house to provide attendant care services to Mona every day are blatantly false.

But if this inconsistency alone was not enough, the videos also fail to show Ford’s supposedly frequent visits to the Powell house. Neither Mona nor Renald have offered any explanation for the absence of a video record showing Renald’s alleged morning departures to pick up Ford, Renald’s return to the house with Ford, or Renald and Ford’s departure for work. This absence is material because the video shows Renald and other persons leaving and entering the house through the front door, and using the garages and driveway to get in and out of their vehicles.

The court concluded that there is no question of fact that Renald participated in Mona’s fraud that Mona falsely represented that she was insuring vehicles to be used in a transportation business in order to obtain the $1,000,000 liability limit. Renald allegedly supported this scheme by signing the application. The only reasonable inference concerning Momo’s Transport is that the company was a fiction.

Renald’s testimony regarding the attendant care Ford and Hodge allegedly provided for Mona establishes his collusion in Mona’s false representations of attendant care. Renald made these statements after Farm Bureau terminated Mona’s PIP coverage for fraud, with the apparent purpose of affirming the attendant log to bolster Mona’s first-party claim for no-fault benefits.

The video clearly shows that the claims that Hodge and Ford provided attendant care to Mona are false. The trial court’s determination that Renald committed insurance fraud by attempting to support Mona’s attendant care claims was certainly within the range of principled outcomes.

UNPUNISHED FOR ATTEMPT TO MISLEAD THE COURT

The court felt compelled to comment on what appear to be misrepresentations in the brief filed by Renald’s appellate attorney, Melissa Stewart as follows:

In her brief, Stewart claimed she attached 16 ‘video stills’ of defendant’s surveillance video to her brief on appeal. Specifically, Stewart asserted that the surveillance video ‘conclusively establishes that the vantage point from [which] the surveillance was taken was located directly in front of the Powells’ home, which gave the investigator and/or video camera a clear view of the Powells’ front door and garage door only.’ But Stewart’s video stills and her statement about what could be seen on the surveillance video were not accurate. …  Yet, Stewart cropped all 16 video stills in an apparent attempt to mislead us regarding what was actually shown in the surveillance videos; significantly, her brief never makes reference to the fact that the videos were cropped. Reading the brief, one could easily assume that each of the “video stills” was simply a single frame, without more, extracted from the video. Even a casual observation of the ‘video stills’ shows that is not the case, particularly when combined with the text of the brief describing alleged limitations on what the video surveillance shows. In fact, the limitations on what the video surveillance shows in the ‘video stills’ arose only because those stills were cropped, and relevant portions removed. We are concerned that this was an attempt to mislead us, particularly given that all 16 video stills were cropped, which created the limitations we have discussed. In light of these facts we could easily conclude that the decision to attach the cropped video stills was not a mistake, which of course would be unacceptable. (Emphasis added)

The court, for reasons hard to understand, after that recitation, gave the lawyer who produced cropped and falsified documents to her brief, the benefit of the doubt and, other than ruling against her client, did not sanction her for the attempt to deceive the court.

ZALMA OPINION

The fraud was clear and unambiguous to the Michigan and Court of Appeal.  That the counsel for Renald attempted to deceive the court in a manner that was obvious to the Farm Bureau and the Court of Appeal is disturbing. If, in fact, counsel intended to deceive the Court of Appeal, she should have been disciplined. The Court of Appeal gave her the benefit of the doubt  and concluded she did not intend to mislead the court. A very lucky lawyer who, unsuccessfully, worked to help a fraud perpetrator defraud the Farm Bureau.

© 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 an 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.

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