Arson for Profit – Appendix

Arson for Profit

APPENDIX

After the scheme failed the person we have called Dickran Levonyan did not stop his criminal activities. He became, among others, the subject of hearings before the Congress of the United States, in S. Hrg. 104-604, May 15, 1996, Russian Organized Crime in the United States, where some of the testimony provided included that from U.S. Customs. Had MOM and Sam Hazan know about the information reported to the U.S. Senate they would have been more careful in their dealings with Levonyan. The report revealed to the Senate:

It is a distinct pleasure to appear before you today to discuss  Russian/Eurasian organized crime in the United States and the  cooperative efforts between the U.S. Customs Service and the  Former Soviet Union (FSU) to combat this growing problem. I  would like to describe Customs’ unique role and mission in this area.

One of the most critical challenges customs administrations  worldwide, face now, and in the future, is the threat posed by  Russian organized crime. The fall of the Berlin Wall in 1989 and  the collapse of the Soviet Union resulted in the emergence of a  new threat to the national security of the United States and the  world community. As a consequence of the collapse of the Soviet  State, a vast supermarket of nuclear materials, other stockpiled weapons of mass destruction (WMD) , and avenues for international money laundering through various criminal schemes, including drug smuggling, have become available. In response to this ominous threat, and as the geopolitical climate changes, U.S. Customs is refining and intensifying its existing strategies and developing new initiatives to deal with this problem. … [W]e must continue to provide training programs which are responsive to the legitimate needs of foreign law enforcement agencies, thereby enhancing their capabilities to meet the threats of Russian/Eurasian organized crime and the sale and diversion of nuclear materials. Several nations have already asked for our assistance. It is in the best interests of the world community that we continue these initiatives to prevent these organized  crime groups from becoming more powerful and entrenched.

From a U.S. Customs investigative perspective, the main threats posed by Former Soviet Union (FSU) criminal groups, both domestic and foreign, continue to be, narcotics smuggling, money laundering, commercial trade fraud and the smuggling/sale of illicit munitions and strategic materials. Another threat that has emerged in the last few years is the increase in the number of cases involving the smuggling of stolen vehicles from the United States to the FSU.

* * *

The growth of Russian/Eurasian organized crime groups in the United States continues to be a principal concern for law enforcement. Although the Russian Federation has received the majority of attention and press regarding the increase of organized crime activities, the other 14 new republics that were once part of the Soviet Union, and the Warsaw Bloc countries that were controlled by the Soviet Union, are all experiencing a significant rise in organized crime activities. Though now separated by country borders, many of these organized crime groups in the new republics are known to be associated with each other and have worked together in the past. Russia, the largest country in geographic area and population, is the cornerstone of stability in the area. The criminal groups comprised of emigres from the FSU function as an integral part of an international network with known ties to the Colombian Cartels, Italian Mafia, Israeli organized crime, and other international organized crime groups .

Criminal cells/networks comprised of emigres from the FSU operating in the United States have been identified by many different terms, “Russian Mafia,” “Russian Organized Crime,” “Organizatsiya , ” “Malina,” “Mafiya,” “Odessa Mafia,” and “Soviet Criminal Network.” According to various sources, some of the cells/networks are aligned with specific leaders, and others by ethnic background, or a particular criminal activity.

* * *

FSU criminal syndicates are active in at least four areas directly relevant to Customs enforcement programs: drug smuggling, money laundering, commercial fraud, and the smuggling  of other illegal contraband, including weapons, strategic minerals, precious metals, icons, and stolen vehicles.

* * *

In many parts of the United States a number of entrepreneur class criminals have been investing in real estate with cash purchases from $200,000 condominiums to $2,000,000 for parts of shopping malls. Another way the money is laundered is the legitimate purchase of commodities that are then exported to the FSU and sold at an enormous profit. In the early stages of the collapse of the Soviet Union it was reported that Russian organized crime groups in the United States sold rubles for U.S. currency to the Colombian Cartels. The Cartels then bought gold, oil and strategic metals through front companies in Russia. The goods were then sold on the world market, effectively laundering the Cartels’ money and providing the Russian organized crime groups with U.S. dollars.

***

Another scheme utilized by Russian organized crime groups to finance their operations is the purchase of merchandise in our country by checking accounts with insufficient funds.

* * *

The illegal export of icons from the FSU by organized crime groups is also another problem being addressed by U.S. Customs.  According to Russian authorities, the icons are not allowed to be  exported out of Russia, except with permission for exhibition purposes, because they are considered a national treasure. Every person entering or leaving Russia has to fill out a customs declaration form which contains a line item that specifically addresses the requirement to declare the possession of icons.

Icons depict religious figures of the Russian Orthodox Church and were commissioned and painted primarily for churches. They may depict any one of a hundred or more persons, and may vary stylistically (particularly in the facial features) by the artist or geographic region where they were painted.

After the Russian revolution in 1915, churches were looted and destroyed. Under communism all religious practice was prohibited and all church/religious property became the property of the state. With the fall of communism and the breakup of the former Soviet Union, religious worship was no longer against the law.

The Russian Orthodox Church is now recognized as a main force in maintaining the Russian heritage and culture, and all icons are considered to be property of the Church. Most icons are kept in museums or churches and are well protected. A commission has been established to register icons with a unique number; all icons that do not have a number are turned over to the Church.

Icons were being sold in Russia several years ago (before the fall) for approximately $200 each. Estimates are that the icons would sell for up to $2,000 currently.

* * *

During 1994 and 1995, in Los Angeles, California, a group of Armenians and Russians made a concerted effort to dominate the independent fuel retailing industry by carrying out daisy chain evasion schemes to steal state excise tax revenues. Before the recent law changes, this group had previously evaded Federal diesel fuel taxes as well. On September 13, 1995, 15 members of this group were indicted for tax evasion, extortion, drug trafficking and the procurement of prostitutes from the former Soviet Union. Prior to indictment, this group had been actively experimenting with ways to defeat the new federal diesel fuel laws.

* * *

In the United States, there are a variety of Estonian, Lithuanian and Armenian groups which are engaged in organized crime. Numerous investigations have been initiated regarding  organized crime from the former Soviet Union. These cases have been centered in Philadelphia, Pennsylvania; California; Connecticut; and New York.

Trade fraud cases connected to FSU emigre crime are beginning to grow. Recent cases have involved marking violations on polished diamonds, uranium, caviar, and pianos. U.S. Customs weapons smuggling cases to date have largely been concerned with relatively low-level military armaments and materials such as AK-47 assault rifles, plastique, and night vision devices.

At the same hearing, the Glendale, California Police Department – near the home of the person we called Dickran Levonyan, reported to Congress:

In 1994, the management of the Glendale Police Department realized there was significant Russian Armenian organized crime developing within the city as well as throughout the region of Los Angeles County. As a result, the Glendale Police Department expanded its criminal intelligence unit to also include an organized crime unit. With limited manpower and resources, the department allocated a sergeant and three officers to address the organized crime issues of the  Russian Armenian communities not only in Glendale, but throughout the region.
At present, our criminal intelligence and organized crime unit investigates and gathers information on crimes against persons, crimes against property, fraud related crime and narcotic offenses. Of these, our unit along with the assistance of other units of the department, investigate murders, extortions, robberies, felonious assaults, arsons. Financial crimes including, money laundering, check kiting, counterfeit check production, auto insurance/medical insurance fraud, electronic fraud (credit card fraud and cellular phone fraud). Additionally Glendale has always been aggressively involved with enforcing narcotic smuggling and distribution.

* * *

[White collar crimes] include check counterfeiting and kiting, money laundering, cellular phone fraud, and credit card fraud. Of particular interest is a case in which a  Russian Armenian had been cloning cellular phones for over three years. He had  been arrested for a previous cellular phone fraud offense and was on probation  when our investigation began. Through our investigations, we learned that the subject of our investigation was cloning the cellular phones of the “Joe Mikaelyan” crime group. This crime group was recently dismantled by a joint task force which was made up of the Federal Bureau of Investigation, the Internal Revenue Service, Long Beach Police Department, Los Angeles Police Department and the California Department of Justice. Joe Mikaelyan, a self-professed Armenian Mafia Godfather, and his crime group were responsible for financial losses that reached multi-million dollar figures as it related to tax evasion, cellular phone cloning and fraud related crimes. Our investigation revealed that Joe Mikaelyan routinely telephoned and received calls from top-level Russian crime figures located on the east coast. The suspect in our cellular phone cloning operation had been under investigation by the cellular phone industry for several years. The cellular phone industry estimates that in North America, more than $600,000,000 annually are lost in revenue due to cellular phone cloning and related expenses for investigations into their losses. The leading states for cellular phone fraud are New York, Florida, and California. The cellular phone industry believes the Russian Armenians to not only be the “Gcdfathers” of cellular phone fraud, but also the leaders in cellular phone cloning, and responsible for the vast majority of their losses. The cellular phone industries representatives further explained that no other criminal group has dominated the illegal cellular phone cloning operations the way the Russian Armenian community has. While investigating a cellular phone cloning suspect, we learned that in a one month period he was responsible for a loss in excess of $140,000 to the cellular phone companies. This translates into an annual loss of over 1.6 million dollars.

* * *

In conclusion, it is our opinion that crime associated with the Russian and Russian Armenian communities will become more violent, sophisticated, and clandestine. Law enforcement today is ill equipped to effectively investigate the issues of Russian organized crime.

Afterword

This story was based on a real case involving a member of Russian/Armenian organized crime, real insurers, investigators, lawyers, fire fighters, and insurance brokers. The names, descriptions, and identities of the people involved have been changed to protect both the guilty and the innocent.

The report to the US Senate, after this case was decided by the California Courts, reveals that the threats made on MOM and lawyer Hazan were real and they are lucky that the threats were never fulfilled. The person identified in this story as Levonyan was described to the US Senate as the leader of a Russian/Armenian organized crime ring. It is important to take seriously threats from criminals.

Insurance fraud and arson-for-profit are not victimless crimes. They are crimes of violence that cost everyone who lives in the U.S.

 http://www.archive.org/stream/russianorganized00unit/russianorganized00unit_djvu.txt;  also a 2001 report http://www.ncjrs.gov/pdffiles1/nij/187085.pdf; also a California report http://orgcrime.tripod.com/ruscali.htm;


© 2017 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness 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 49 years in the insurance business.

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

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Arson for Profit – Chapter 33

Arson for Profit

Chapter 33

The Fat Lady Sings

Levonyan didn’t go away. He sued the insurers and demanded the policy limits plus punitive damages for alleged bad faith. For four years his lawyers and the lawyers for the insurers fought the case in the courts. Finally, at a hearing on a motion for summary judgment the trial judge found that Levonyan had misrepresented material facts on the applications to Brickwall and Lloyd’s and that the insurers had properly denied the claim.

The court’s judgment was that the policy was rescinded from its inception and entered judgment for the insurers. Levonyan appealed and lost. The decision of the California Court of Appeal, eventually upheld by the California Supreme Court required Levonyan to pay back to the insurers all of the money they spent on the defense and to return the money used to rent him a substitute house. In the end, the insurers recovered over $500,000 from Levonyan.

The court said, Brickwall issued a homeowner’s policy to Levonyan and Underwriters at Lloyd’s issued a personal articles floater policy to Levonyan which provided casualty and fire insurance protection for Levonyan’ home and contents. Levonyan’s home was destroyed by fire. Following an investigation, Brickwall and Lloyd’s concluded that certain misrepresentations and a number of omissions had been made by the Levonyan in the applications for the policies which they had submitted to Brickwall and Lloyd’s, not the least of which was a denial of prior claims and a denial of prior cancellations. Lloyd’s and  Brickwall properly and effectively defended the suit filed by Levonyan seeking an order that:

1.     Rescission of the policy ab initio, together with the judgment of the court so declaring;  and

2.     Repayment, with interest, of advance payments (against the then anticipated fire insurance proceeds).

In its motion for summary judgment Brickwall and Lloyd’s produced evidence that the Levonyan’s, in responding to questions in the policy applications, (1) specifically denied (for the immediately preceding three years) any loss history and any policy cancellations or renewal refusals and (2) failed to include the following facts:

1.     That in February (within three years of the application to Brickwall and Lloyd’s) defendants suffered landslide damages to their property which resulted in a legal action for $500,000 in damages filed against them by a downhill neighbor. This claim was submitted by the Levonyans to their then insurance carrier, Republican Insurance Company;

2.     That the Levonyans suffered an uninsured loss by theft of precious stones exceeding $100,000 in value;

3.     That Republican Insurance Company had cancelled a homeowner’s policy which it had previously issued on the same property the subject of his claim to Brickwall and Lloyd’s;

4.     That Levonyan had presented a water damage claim to Republican Insurance Company with respect to this same property;

5.     That over two months prior to the submission of the application to Brickwall and Lloyd’s, the defendants had been notified by Republican Insurance Company of the non-renewal or cancellation of the homeowner’s insurance policy which that company had theretofore issued.

6.      Subsequently, just a few days before the issuance of Brickwall’s policy, the Levonyans were informed that the reason for such non-renewal was substandard property maintenance by defendants of the same property.

7.      Levonyan never provided such information to Brickwall nor Lloyds;

8.     That at the time of the applications, there was pending a lawsuit with Equitane Life Assurance Society, wherein that company sought to rescind a health policy on the grounds that defendants had made material misrepresentations and omissions in the application for that policy;

9.     That at the time the applications were made to Brickwall and Lloyd’s Levonyan had a second mortgage on their property with Allied National Bank (the existence of a first mortgage with US Savings & Loan Association was disclosed;  however, the total owed on the home was approximately $425,000 of which nearly one-half, or $200,000, was secured by the undisclosed second trust deed).

Brickwall also offered the deposition testimony of one of its former underwriters who was responsible for making the decision to issue the subject policy. She testified that she relied on defendants’ application and had she known the “true facts” she would not have approved the issuance of the policy.

In their response to the summary judgment the Levonyans did not dispute that the  statements in the application were untrue or incomplete and they effectively conceded that the described omissions had occurred. However, they contended that such statements and omissions were either irrelevant or immaterial, or claimed that the “true facts” were known to Dersogian who, Levonyans claim, was the agent of Brickwall and Underwriters at Lloyds, rather than their agent. In short, Levonyans presented no serious dispute as to the accuracy of the factual claims of Brickwall and Lloyd’s.  Indeed, in their brief before the court the Levonyans made clear that, apart from their arguments on materiality, there is no real dispute as to the truth of Brickwall’s claim of concealment.  Based on the record, the trial judge granted summary judgment and an appeal followed.

CONTENTIONS ON APPEAL

Levonyans first contended that entry of summary judgment was improper. They asserted essentially two arguments in support of their position:

1.     That while no dispute may exist as to the fact that Levonyans omitted certain matters from their application, there are disputed factual issues as to Dersogian’s agency and whether the omissions were material;  and

2.     That even if the trial court was correct in concluding that Brickwall and Lloyd’s were entitled to rescission, it was error to grant a judgment against Levonyan. Levonyans contend that their suit raised issues of fact not addressed by the motions of Lloyd’s and Brickwall which related to alleged violations by Lloyd’s and Brickwall of their statutory obligations under Insurance Code section 790.03, subdivision (h), the bad faith statute.

In addition, the Levonyans contended that the judgment was defective in that it is not clear just what relief has been granted to Brickwall and Lloyd’s or that all issues between the parties have been resolved.   For example, did Brickwall and Lloyd’s receive a judgment of rescission ab initio, or is the rescission effective as of some other date?  Are the Levonyans liable for monetary damages and, if so, in what amount?

The Court of Appeal concluded that the first two arguments were without merit and that a summary resolution of Brickwall’s rescission claim and the Levonyans’ cross-complaint was proper.  However, the appellate justices agreed, at least in part, with the Levonyans’ objections to the fact and form of the judgment which was entered.  It, therefore reversed, the verdict with directions as to certain limited further proceedings.

    The Information Which The Levonyans Failed to Disclose was Material and Summary Resolution of Brickwall’s Rescission Claim Was Proper.

Summary judgment is properly granted only when the evidence in support of the motion establishes that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. This circumstance exists when the evidence in support of the moving party would be sufficient to sustain a judgment in his favor and the opposing party has not presented any facts which give rise to a triable issue of material fact. They concluded that Levonyan’s case was such a case and summary judgment was properly granted on behalf of the insurers.

In their brief, the Levonyans effectively conceded that of the established material issues of fact claimed by Brickwall and Lloyd’s, they only really disputed three:

a.     The Levonyans deny that Republican Insurance Company had refused to renew their previous homeowner’s policy. However, they do not dispute that a non-renewal notice was received by Dersogian prior to the submission of the Levonyans’ application to Brickwall and Lloyd’s and that the reason Republican subsequently gave for such non-renewal was the Levonyans’ substandard maintenance of their property (a fact which they did not report to Brickwall and/or Lloyd’s). The Levonyans argued that Dersogian had, on their behalf, already sent (several weeks earlier) a notice of cancellation of the policy to Republican. The Levonyans therefore conclude that the non-renewal notice was a nullity and did not need to be mentioned in the application. Apart from the fact this is a little like the face-saving rejoinder of the discharged employee (“you can’t fire me, I quit”), it does not, the court concluded, raise a triable issue with respect to Brickwall and Lloyd’s claim that the fact of the receipt of the notice was not disclosed as requested by the application form;

b.     The Levonyans argued that Dersogian (who they acknowledged they had “trusted … to handle all the Levonyan’s insurance needs with respect to homeowner’s insurance for many years prior to getting the Brickwall and Lloyd’s policies”) was not their agent when he helped them prepare the application, but rather he was acting as the agent of Brickwall and Lloyd’s. The Levonyans offer only a conclusionary assertion in their declaration that they believed that Dersogian was Brickwall and Lloyd’s’s agent. Brickwall and Lloyd’s filed objections to this evidentiary submission by the Levonyans and pointed to Dersogian’s declaration in which he expressly stated that he prepared the application based upon “information supplied by the Levonyans.” In his deposition testimony, Dersogian testified that he felt he was acting as an insurance broker, not as an agent of Brickwall and Lloyd’s. In fact, he testified that the application signed by the Levonyans was submitted to a surplus lines broker known as Capitation Insurance Service and was printed on a form supplied by that company. It was Capitation, not Dersogian, who actually placed the insurance with Brickwall and Lloyd’s.   In addition, Dersogian stated in his declaration that he had no knowledge concerning four of the factual omissions made by the Levonyans did not dispute two, and was aware of the circumstances relating to only one. In view of such testimony it was clear to the Court of Appeal that there simply was no evidence presented by the Levonyans to demonstrate that the contents of the application were not entirely their responsibility.   Dersogian clearly acted as nothing more than the Levonyans’ scrivener.   Under those circumstances the Court of Appeal concluded that Dersogian, if the agent of anyone, was the agent of the Levonyans.

c.     While the Levonyans concede that they were aware that their property had suffered from earth movement and subsidence as claimed by Brickwall and Lloyd’s, they argue that these were tiny “popouts” or had occurred so far from the house that they were not significant, and therefore were not material and there was no reason to disclose them.  The Levonyans’ additional argument that this was not a “loss” on their homeowner’s policy, and therefore not within the scope of Brickwall and Lloyd’s’s prior loss inquiry, was found by the Court of Appeal to be fatuous.
Given the state of the record presented to the trial court and to the court of Appeal and the

Levonyans’ concession in their appellate brief, the Court of Appeal felt compelled to reach the conclusion that no factual dispute exists with respect to the fact of the Levonyans’ concealment of certain information requested by Brickwall and Lloyd’s.  Moreover, there is no factual dispute that Brickwall and Lloyd’s issued the policies in reliance on the truth of the statements made by the Levonyans and that the Brickwall underwriter and Lloyd’s’s underwriter stated in undisputed sworn testimony that had Brickwall and Lloyd’s known the actual facts, which only came to light during the post fire investigation, they would not have issued the policy.

The Levonyans, however, contended that the information omitted from the applications were not material and that they are entitled to a trial on that issue. The general rules applicable to a determination of such materiality were well summarized by the California Supreme Court in 1973 when it concluded “It is generally held that an insurer has a right to know all that the applicant for insurance knows regarding the state of his health and medical history.  Material misrepresentation or concealment of such facts are grounds for rescission of the policy, and an actual intent to deceive need not be shown.  Materiality is determined solely by the probable and reasonable effect which truthful answers would have had upon the insurer. The fact that the insurer has demanded answers to specific questions in an application for insurance is, in itself, usually sufficient to establish materiality as a matter of law.”

These rules also find support in the express provisions of the Insurance Code where heavy burdens of disclosure are placed upon both parties to a contract of insurance and any material misrepresentation or the failure, whether intentional or unintentional, to provide the requested information permits rescission of the policy by the injured party.
For example, rescission of an engineering firm’s malpractice policy by the insurer was affirmed where the insured, in the application, had denied knowledge of any circumstances which might result in a claim.   Such denial was made at a time when the insured was in possession of an architect’s letter asserting the existence of major deficiencies in a certain project on which the insured had performed engineering services.

The court noted that the policy distinguished between negligent acts committed during the policy period and those committed prior to its inception and that it was important to the insurer to determine if the insured had knowledge of any claimed prior negligent acts. The court concluded that the materiality of the insured’s negative representation was established by the terms of the policy and the fact that the question was asked on the application.   In addition there was evidence that had the insurer known the truth it would not have provided insurance without an exclusion for the prior claim.

That is not to say, however, that a mere incorrect answer on an insurance application will give rise to a defense of fraud, where the true facts, if known, would not have made the contract less desirable to the insurer. Moreover, the trier of fact is not required to believe the “post mortem” testimony of an insurer’s agents that insurance would have been refused had the true facts been disclosed. However, when there is no dispute, when the evidence of misrepresentation and concealment is uncontested and overwhelming, the court will have no option but to allow that the insurer has properly rescinded.

The Levonyans, relying on this caveat, argued that the issue of materiality should not be resolved summarily but rather the trier of fact should determine if the omissions and false representations were material. However, that materiality must be determined “solely by the probable and reasonable influence” which the admittedly undisclosed information would have had upon Brickwall and Lloyd’s’s decision to issue the policy. This is a subjective test;  the critical question is the effect truthful answers would have had on Brickwall and Lloyd’s, not on some “average reasonable” insurer. Given this rule and the nature of the renewal, cancellation, litigation and loss history which the Levonyans admittedly kept from Brickwall and Lloyd’s, especially when such facts are viewed in light of their cumulative impact, the Court of Appeal could not find a triable issue that remained with respect to the question of material misrepresentation and concealment of material fact.

The Levonyans offered no evidentiary assistance on this point, but contented themselves with the naked argument that since a jury might “disbelieve” all of the uncontradicted evidence presented by Brickwall and Lloyd’s, they are entitled to a trial on the question of materiality. The Court of Appeal disagreed and concluded that it could not review the application submitted by the Levonyans in this case without concluding that the information sought by Brickwall and Lloyd’s and denied to them by the false negative answers and omissions of the Levonyans, was material to Brickwall and Lloyd’s’s decision to provide insurance coverage. That conclusion is the only one that reasonably can be drawn from the undisputed evidence presented.

It is supported by the nature of the insurance coverage which the Levonyans sought, the quality and quantity of the information which was not disclosed and the fact that Brickwall and Lloyd’s specifically requested the information on their applications and thereafter relied upon the Levonyans responses on the applications in making the decision to issue a  policy. The uncontradicted evidence of Brickwall and Lloyd’s’s underwriters confirms the importance which Brickwall and Lloyd’s attached to the information. Under these circumstances, the materiality of the Levonyans’ concealment is established as a matter of law.

    2. Rescission of The Policy of Insurance Bars Any Claim By the Insured.

As the Court of Appeal concluded that the Levonyans made material false statements in their application, Brickwall and Lloyd’s have a statutory right to rescind the policy.  Such right was exercised in a timely manner and the rescission is from “the time the representation becomes false” and, of necessity, will avoid liability even on pending claims.  The provisions of the California Insurance Code are part of a statutory scheme which reflects a deliberate distinction between “rescission” and “cancellation.” The former is a retroactive, while the latter is a prospective, termination of the policy. Thus, a rescission effectively renders the policy totally unenforceable from the outset so that there was never any coverage and no benefits are payable.

The Levonyans did not take issue with these general principles, but contended that Brickwall and Lloyd’s have violated their statutory obligations under Insurance Code section 790.03, subdivision (h) and that the Levonyans’ right to recover damages for such violations transcends rescission of the policy.

Insurance Code section 790.03 is an integral part of extensive legislation designed to regulate the trade practices of the business of insurance in California, including the prohibition of certain methods of competition and unfair or deceptive acts or practices.  Specific prohibited acts were originally included in section 790.03, and subdivision (h), which was added in 1972, condemned certain unfair claims settlement practices. A private right of action to enforce violations was recognized in favor of insured parties where a court held that the person to whom civil liability runs may enforce the section by an appropriate action.

There is some authority for the proposition that an insurer owes a duty to the insured under section 790.03, subdivision (h) even where it is established that there is no coverage and thus no duty to either indemnify or defend.  However, this may well be appropriate where the dispute is limited to the question of coverage as to a particular claim, since there still remains viable the underlying relationship of insurer-insured.  The Court of Appeal asked: what of the circumstance where the dispute between the insurer and the insured goes beyond the issue of coverage and results in the rescission of the entire contract of insurance?

“A contract is extinguished by rescission.” (Civil Code § 1688.) The consequence of rescission is not only the termination of further liability, but also the restoration of the parties to their former positions by requiring each to return whatever consideration has been received. In this case the law would require the refund by Brickwall and Lloyd’s of any premiums and the repayment by the Levonyans of any proceeds advance which they may have received.  The policy would be “extinguished” ab initio, as though it had never existed.  In other words, the Levonyans, in law, never were insureds under a policy of insurance. That status cannot exist in a vacuum, but must necessarily depend upon the existence of a valid policy of insurance. No compelling reason has been suggested to the Court of Appeal, nor could the court conceive of any, as to why the Levonyans, having obtained the policy upon the basis of material concealment, should have a greater right under section 790.03, subdivision (h) than a party whom Brickwall and Lloyd’s may have declined coverage although they received truthful answers in a policy application.

The Court of Appeal, therefore hold that upon a rescission of a policy of insurance, based upon a material concealment or misrepresentation, all rights of the insured thereunder (except the right to recover any consideration paid in the purchase of the policy) are extinguished, including the right or standing to prosecute a claim against the insurer for a violation of Insurance Code section 790.03, subdivision (h). Therefore, as a matter of law, the Levonyans can assert no such claim in a California court and the summary resolution of their cross-complaint was proper.

    3.     The Form of Judgment Was Defective And, In Any Event, a Judgment Should  Not Have Been Entered.

The Levonyans finally argued that the judgment entered against them is defective in that it cannot be determined from the judgment just what relief has been granted, and that a judgment should not have been entered at all, since the trial court had not yet resolved all of the issues between the Levonyans and Brickwall and Lloyd’s.  With that, the Court of Appeal agreed and sent the case back to the trial court to determine the amount the Levonyans would be required to pay Brickwall and Lloyd’s.

In this case, Brickwall and Lloyd’s’ cross-complained against the Levonyans and sought two forms of relief:

(1)     rescission of the policy and

(2)     recovery of money in the amount of the policy proceeds advanced which it had made to the Levonyans while conducting their investigations.

(3)    attorneys’ fees incurred by the insurers defending the suit brought by the Levonyans.

The trial court judgment simply provided that Brickwall and Lloyd’s were “entitled to judgment as a matter of law on the complaint and cross-complaint against the Levonyans and to recover costs in the sum of $ __________.”  The judgment did not purport to make a specific damage award in Brickwall and Lloyd’s’s favor nor, for that matter, did the court receive any evidence as to the amount of the proceeds advanced or the premiums collected.

It is the general rule that a judgment must be sufficiently certain to permit enforcement.   While some uncertainties may be eliminated or resolved by reference to the pleadings that will not save a judgment for money which fails to specify the amount. Here Brickwall and Lloyd’s’s entitlement to a judgment of rescission might well be salvaged by an examination of the complaint, but the money damage claim cannot.  Moreover, since the only reference in the record to the amount of damages sought by Brickwall and Lloyd’s is in the complaint and cross-complaint, the Court of Appeal concluded that the issue of the amount of money damages to which Brickwall and Lloyd’s may or may not be entitled has not, and could not have, been resolved by the judgment which was entered.   Thus, there has not been a final determination of all of the rights and obligations in this action as between Brickwall and Lloyd’s and the Levonyans. Entry of a judgment, therefore, was improper.

If, upon further proceedings in the trial court, it can be determined (whether by stipulation, summary proceedings or trial) the amount to which Brickwall and Lloyd’s were entitled in the way of money damages, if any, then a final judgment as between these parties may be entered.  Pending such final resolution, however, all that should have been done by the trial court was entry of an order granting summary adjudication of issues establishing (1) that Brickwall and Lloyd’s were entitled to rescission of the policies of insurance on the grounds of the Levonyans’ concealment and misrepresentations and (2) that because of such rescission the Levonyans were not entitled to any relief as against Brickwall and Lloyd’s upon their complaint.

The Court of Appeal, therefore, directed the trial court to make and enter a new order granting summary adjudication of issues and to conduct such further proceedings as may be appropriate to resolve any remaining money damage claims which may exist between Brickwall and Lloyd’s and the Levonyans.

The case was sent back to the trial court. Before, and during the trial, more threats were made against MOM’s life and that of Sam Hazan. When Sam was called to testify he was met in the aisle by Levonyan who said:

“Hazan, still alive I see. You have been lucky. Be careful.”

Ignoring Dickran, Hazan walked toward the stand, stopped at the counsel table and asked the trial lawyer for the Underwriters and Brickwall to first ask, after he was sworn, what Mr. Levonyan had said to him as he approached the witness stand. It made clear to the trial judge the type of person Levonyan was and, with his testimony about the fraud and the funds expended by the insurer, was effective. One of the three bailiffs in the courtroom, none of whom had taken their hands off their weapons as the trial proceeded, walked Hazan to the court house elevator and offered to escort him to his car. Since Dickran was still in the court Hazan refused.

His testimony was followed by Campizi who stated that his investigation established that Levonyan, through his son Levon, had caused the fire to occur and that he had presented the case to the Los Angeles County District Attorney’s office who refused to prosecute because of a lack of staff and because no one had been injured or killed in the fire. Judgment was entered against Levonyan for all moneys advanced by Brickwall and Lloyd’s and for every dollar paid by the insurers to their lawyers and investigator. The money was collected.

Dickran Levonyan purchased a small house in North Hollywood, in the flat lands of the San Fernando Valley and is living well on the inflated earnings of his gas stations. He was not prosecuted and the judgment entered of $550,000 was paid by the insurance broker’s insurer who gave Levonyan the idea to cause a fire. The ANPA received no money.  Underwriters and Brickwall were made whole, and Levonyan’s picture stares from the wall of Hazan’s toilet with a caption: “Arson-for-Profit fails.”

Richard de Camp now reads every word in an appraisal presented from the United States, telephones MOM or Sam Hazan before agreeing to insurance to see if they know the proposed insured or the appraiser and has seen a great reduction in his loss ratio. De Camp was, in this case, most unusual in refusing to pay a person he determined had attempted a fraud. He did not accept offers of settlement from Levonyan of less than 10% of the stated claim. Unlike most American insurers, De Camp decided it was best to pay millions for defense of an attempted fraud and refuse to pay nothing for tribute. Most American insurers, whose money is corporate rather than personal, would have worked hard to reach a settlement.

MOM and Sam Hazan continue in their efforts against insurance fraud which is now estimated to be $300 billion a year.

The US needs more insurers like Mr. De Camp and more investigators like MOM and lawyers like Hazan.


© 2017 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness 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 49 years in the insurance business.

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

Check in on Zalma’s Insurance 101 – a Videoblog – that allows your people to learn about insurance in three to four minute increments at http://www.zalma.com/videoblog

Look to National Underwriter Company for the new Zalma Insurance Claims Library,  at www.nationalunderwriter.com/ZalmaLibrary  The new books are Insurance Law, Mold Claims Coverage Guide, Construction Defects Coverage Guide and Insurance Claims: A Comprehensive Guide

The American Bar Association, Tort & Insurance Practice Section has published Mr. Zalma’s book “The Insurance Fraud Deskbook” available at  http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=214624, or 800-285-2221 which is presently available and “Diminution of Value Damages” available at http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=203226972

Mr. Zalma’s three new e-books  were recently added and are available at http://www.zalma.com/zalmabooks.html

Mr. Zalma’s reports can be found on Tumbler at https://www.tumblr.com/search/zalma,  on Facebook at https://www.facebook.com/barry.zalma and you can follow him on Twitter at https://twitter.com/bzalma

Legal Disclaimer:

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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Arson for Profit – Chapter 32

Arson for Profit

Chapter 32

It’s Over

After the transcripts of the examinations under oath were signed, the insurers consulted, the law analyzed, and for fear of California courts the independent review of a second set of lawyers, the insurers agreed to rescind the policies and deny the claims. Sam Hazan’s letter to Levonyan’s lawyer, Zazian, reviewed and revised in several drafts by the insurers and their second-opinion-lawyers, said:

“The policy you acquired from the Underwriters at Lloyd’s, London provided, in relevant part, as follows:

“If the Assured shall make any claim knowing the same to be false or fraudulent, as regards amount or otherwise, this Policy shall become void, and all claim thereunder shall be forfeited.

“As early as 1937 the California Supreme Court confirmed the rule of law of rescission, in California as follows: “A false representation or a concealment of fact whether intentional or unintentional, which is material to the risk.

“Further, it is axiomatic in California law that for a contract to exist there must be mutual assent and the contract is subject to rescission where there is a harmful mistake as to some basic or material fact which induced a party to enter into the contract. In your case the application you submitted to your insurers stated you had no prior claims and no prior cancellations. Those statements you admit were false.
“The facts of the acquisition of the contract of insurance captioned above fall within the general rule stated by California law since there was apparently a harmful mistake as to basic or material facts as specified above. The Underwriters at Lloyd’s and Brickwall believed, based upon your representations, that you had incurred no prior losses and that you had never been cancelled.

“False statements made in the application convinced the Underwriters and Brickwall  to insure you are misrepresentations that provide sufficient grounds for rescission.

“The California Insurance Code states:

“Neglect to communicate that which a party knows, and ought to communicate is concealment. (California Insurance Code  § 330.)

“A representation is false when the facts fail to correspond with its assertions or stipulation. (California Insurance Code § 358.
“The effect of a concealment or a false representation on a policy of insurance is that it entitles the other party to rescind the insurance from its inception.  (California Insurance Code § 331 and § 359.)

“The California Court of Appeal reaffirmed the general rules with regard to concealment and misrepresentation and the rescission of insurance policies.  It stated:

“‘An insurance company is entitled to determine for itself what risks it will accept, and therefore to know all facts relative to the applicant’s physical condition. It has the unquestioned right to select those whom it will insure and to rely upon him who would be insured for such information as it desires as a basis for its determination to the end that a wise discrimination may be exercised in selecting its risks.

“Similarly, the Underwriters have determined that you would not have been eligible for insurance with Underwriters at Lloyd’s because you submitted a false and fraudulent application.

“By using the subjective test suggested by California law, it is clear to Underwriters at Lloyd’s and Brickwall that the information sought by the Underwriters on the Proposal and Brickwall on its application, whether misrepresented by you or your broker acting on your behalf, were material to the underwriters who accepted the risk who would not have agreed to insure you if they had known the true facts.

“The law seems clear that where the insured has secured a policy through fraud, breach of warranty, or material misrepresentation, the insurer can rescind the policy as of its inception, notwithstanding the existence of any rights in third parties who were injured by the acts of the insured which occurred before the rescission.

“When the court makes a decision with regard to rescission its direction is to make a ruling that is fair to all parties.  It is for that reason, when it grants rescission, that the court always requires that the insured receive a return of the premium it paid so that both parties are in exactly the same position they were in when the contract, now rescinded, was made. It is to comply with this requirement that has caused the Underwriters at Lloyd’s, London and Brickwall to offer to return to you the premium paid.

“With regard to the policies, the applications you signed and the appraisal you submitted to induce the Underwriters at Lloyd’s to insure you are material.

“Under California Civil Code § 1572, actual fraud exists when any of the following acts are committed by, or with the connivance of, a party to a contract with intent to deceive another party or to induce the other party to enter into the contract:

“1.    The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

“2.    The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he or she believes it to be true;

“3.    The suppression of that which is true, by one having knowledge or belief of the fact;

“4.    A promise made without any intention of performing it; or

“5.    Any other act fitted to deceive.

“It is clear to the Underwriters at Lloyd’s that evidence exists to establish that you perpetrated a fraud, as defined by California Civil Code § 1572, when you applied for the insurance, in your dealings with the adjuster, in your testimony at examination under oath, and in the proof of loss you used in the presentation of the claim.

“Material facts intentionally concealed or misrepresentations made with intent to mislead the insurer is fraud, which, at the option of the insurer, avoids the policy. However, when misrepresentations as to material facts are made in an application for insurance,  existence of a fraudulent intent to deceive is not essential to the avoidance of the policy.

“Authorities for declaring a policy void because of concealment of material facts, material misrepresentations of fact or fraud are legion.

“In this case your willfully false statements at examination under oath and in your proof of loss relieve the Underwriters’ from all liability under the policy.

“A presumption of intent to deceive is raised when the statements are made with knowledge of their falsity.  False statements were made by you with knowledge of their falsity and the Underwriters at Lloyd’s must presume you intended to deceive them when you presented the claim, presented a sworn proof of loss, presented a proposal for insurance that contained false statements. In addition I am required to advise you that California Penal Code § 550 provides, in relevant part:

“(a) It is unlawful to do any of the following:

“(1) Knowingly present or cause to be presented any false or fraudulent claim for the payment of a loss, including payment of a loss under a contract of insurance.

* * *
“(5) Knowingly prepare, make, or subscribe any writing, with the intent to present or use it, or to allow it to be presented in support of any false or fraudulent claim.

“(6) Knowingly assist, abet, solicit, or conspire with (A) any person who knowingly presents any false or fraudulent claim for the payment of a loss, including payment of a loss under a contract of insurance; … and (D) any person who knowingly prepares, makes, or subscribes any writing, with the intent to present or use it, or to allow it to be presented in support on any claim.

* * *

“(b) (1) Every person who violates paragraph (1), (2), (3), (4), (5), or (6) of subdivision (a) is punishable by imprisonment in the state prison for two, three, or five years, or by a fine not exceeding fifty thousand dollars ($50,000), or by both …

“Underwriters at Lloyd’s, London and Brickwall, have, after completing their thorough investigation and obtaining advice and counsel from me, an independent attorney who is experienced in questions similar to those posed by your application, policy and claim, hereby deny your claim unconditionally for all of the reasons stated in this letter.

“The policy contains a private limitation of action provision that requires suit within one year of the loss. Recent decisions of the California Supreme Court seems to indicate that the one year private limitation of action provision is tolled until the claim is denied. Since this letter is an unconditional denial of your claim, if you decide to file suit on the contract of insurance, you must file that suit no later than one year from the date of this letter denying the claim.

“If you disagree with the decision of your insurer, provided to you in detail by this letter, California law requires that I advise you that you may seek review of that decision by the Department of Insurance of the State of California.  Inquiries should be directed to the Consumer Affairs Division, Department of Insurance, 300 South Spring Street, Los Angeles, California 90013, telephone 800-555-5151 or 213-555-5151.”
MOM, reading the letter, before it was mailed, asked:

“Why do you tell him to complain to the Department of Insurance, Sam?”

“Because, the state of California, in an effort to protect innocent insureds from abuses by insurers, require that we give that advice. They seem to believe the only bad guys are insurers.”

“Why is the letter so long? Couldn’t you just tell him to go to Hell?”

“Oh, how I would love to do just that, but I can’t. The law, the Regulations issued by the California Department of Insurance and common sense require that we treat Levonyan like a gentleman. If he sues and the case goes to trial I’ll need to testify that I, and the insurers, made their decision based on objective facts and good, reasonable and well-reasoned legal advice. If not, a jury or judge will have the opportunity to decide against the facts to punish the insurance company.”

“That’s ridiculous. It puts the foxes in the chicken coops and asks them to please not eat all of the chickens.”

“Until the law changes we have no option but to comply.”

“I don’t like it, but I think I understand.”

“Let’s hope he takes the hint and goes away.”


© 2017 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness 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 49 years in the insurance business.

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

Check in on Zalma’s Insurance 101 – a Videoblog – that allows your people to learn about insurance in three to four minute increments at http://www.zalma.com/videoblog

Look to National Underwriter Company for the new Zalma Insurance Claims Library,  at www.nationalunderwriter.com/ZalmaLibrary  The new books are Insurance Law, Mold Claims Coverage Guide, Construction Defects Coverage Guide and Insurance Claims: A Comprehensive Guide

The American Bar Association, Tort & Insurance Practice Section has published Mr. Zalma’s book “The Insurance Fraud Deskbook” available at  http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=214624, or 800-285-2221 which is presently available and “Diminution of Value Damages” available at http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=203226972

Mr. Zalma’s three new e-books  were recently added and are available at http://www.zalma.com/zalmabooks.html

Mr. Zalma’s reports can be found on Tumbler at https://www.tumblr.com/search/zalma,  on Facebook at https://www.facebook.com/barry.zalma and you can follow him on Twitter at https://twitter.com/bzalma

Legal Disclaimer:

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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Arson for Profit – Chapter 31

Arson for Profit

Chapter 31

Investigation Post-Mortem

In a brown leather booth surrounding by paintings depicting men fishing in mountain streams and lakes, MOM and Sam Hazan sat sipping at their respective drinks. The waiter had just taken their orders for dinner leaving a basket full of fried zucchini sticks and a small bowl of ranch dressing.

MOM, enjoying the comfort and warmth of his second Stolychnaya on the rocks, looked over at Hazan as he took deep droughts from a pint glass of Negra Modelo beer. What he saw was a young man drained of all strength in dire need of the calories provided by the beer and zucchini. His hair, thinning on the top as if his forehead started three inches higher than normal was sticking out at odd angles. His glasses were on the table and he was rubbing his eyes with the heels of his hands. The whites of his eyes were specked with red, jagged lines. The beer and Zucchini began to take effect, Sam picked up his glasses, looked directly at MOM and smiled.

“It seems, MOM, that we have done our job.”

“How so?”

“Levonyan’s testimony and your investigation established that the application submitted to the Underwriters and the application submitted to Brickwall contained false and fraudulent representations that I believe we can prove were material to the decision to insure him.”

“What, Sam, does that have to do with the fire?”

“Directly, little. It means there was never a policy. If there never was a policy Levonyan can recover nothing. Underwriters and Brickwall can rescind.”

MOM, in the face of success was not as pleased as Sam Hazan expected. He watched as MOM’s fist wrapped around his glass and slowly took a long drink of Vodka letting it slide down his throat as if he was drinking nothing more powerful than a lemonade. His face became pale under the beard emphasizing in the meager light of the restaurant, the ginger color of MOM’s beard. MOM straightened his back and looked directly at Hazan.

“Sam, does that mean Underwriters have no reason to go on with the investigation?”

“Probably. If, as I believe, they can successfully establish rescission, there is no reason to go on with the investigation. You and your people have done a magnificent job.”

“No, we did not.”

“What do you mean?”

“I mean, we know a person has committed a violent crime. An arson fire where people could have been seriously injured or killed. A crime, with more time to investigate, I could prove. He’s going to get away with it.”

“MOM, we aren’t the state of California. The representatives of the state, the Los Angeles County District Attorney has decided he will not prosecute Levonyan. You couldn’t change that.”

“Yes I could. I could have forced them to prosecute him.”

“No. I wouldn’t let you. Underwriters and Brickwall can deny his claim. They can take the profit out of the crime. They can’t prosecute him. They can’t force the police and prosecutors to arrest him. If they did he would have a good case against the insurers for breaching the covenant of good faith and fair dealing.”

“If I do my job and he is arrested our clients can be sued – Sam, that’s ridiculous.”

“It seems so. But our California Supreme Court, not ready to be reasonable and intelligent when it comes to insurance claims, has seen a duty to protect criminals against the activities of insurance companies.”

Sam continued, rubbing his hand over his head trying to press down his unruly hair. “The California Supreme Court said that in almost every case, if not every case, where an insurer reports a claim believed to be fraudulent, the insurer stands to profit if the insured is successfully prosecuted. Once an insurer has evidence providing probable cause to believe an insurance fraud has occurred and determines to make a report to the authorities it may properly make its report, and the fact that the report is designed to secure prosecution does not show malice so long as the report does not contain known inaccuracies and is not incomplete.”

Tipping up the beer bottle to finish the beer, Sam said, “the courts conclude that the covenant of good faith and fair dealing is implied in every insurance contract. The implied promise requires each contracting party to refrain from doing anything to injure the right of the other to receive the agreement’s benefits. To fulfill its implied obligation, an insurer must give at least as much consideration to the interests of the insured as it gives to its own interests.  When the insurer unreasonably and in bad faith withholds payment of the claim of its insured, it is subject to liability in tort. And an insurer cannot reasonably and in good faith deny payments to its insured without fully investigating the grounds for its denial.”

“So, isn’t it reasonable that I do a complete investigation to prove he didn’t do it?”

“Of course, but once you have enough evidence to establish that the insurer has been defrauded in the inception of the policy there is no further investigation that can assist the insured. All you are doing is putting him to additional expense with no hope of change. You are putting your personal consideration – a need to see him prosecuted – over his interest to collect money on the policy or to stop spending more money in a useless effort can be in breach. I will recommend that the insurers rescind their respective policies, deny the claim, and stop further investigation.”

“And, when he sues, anyway what will you do?”

“I will recommend that the insurers defend the suit and establish that the policy is void from its inception.  I will also prove, beyond a preponderance, that he committed fraud in the inception of the policy, the presentation of the claim, and caused the fire to occur and we will succeed.”

The waiter arrived just as Sam finished his speech. He delivered a thick, end cut prime rib to Hazan and a rigatoni with sweet Italian sausage to MOM. They were silent while they were being served and allowed the information to sink in as they ate. Five minutes passed in silence until MOM broke the reverie.

“This stinks.”

“MOM, you’ve already eaten half the pasta, what’s wrong with it?”

“Not the pasta. Your solution to the case stinks.”

“I don’t like it either. Our client’s decision would be easier if this type of crime was of more interest to the prosecutors. It isn’t. He won’t be prosecuted no matter how much investigation we do. Campizi knew it, MOM, that’s why he turned his entire file over to Bill Mack. That’s why we have such a good case to prove rescission.”

“I don’t like it. You’re going to write him a letter. Send him a check for his premium, and he’s going to live comfortable somewhere.”

“That’s about it. He probably won’t sue.”

“You think he’ll walk from a two million dollar claim?”

“He needs a lawyer who will take a case with bad facts on the possibility that a jury will ignore them and punish an insurance company. There aren’t enough hungry lawyers out there to take that kind of case on a contingency. He doesn’t strike me as the kind of man who would pay a lawyer $250 to $350 an hour to sue the Lloyd’s Underwriters. Even if he did hire one of those lawyers, they would give him honest advice about the chances of success. The evidence you gathered and his testimony at examination under oath will cause most honest lawyers to advise him to walk away.”

“I still don’t like it.”

“Neither do I, MOM.”

They finished dinner without mentioning Levonyan again.


© 2017 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness 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 49 years in the insurance business.

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

Check in on Zalma’s Insurance 101 – a Videoblog – that allows your people to learn about insurance in three to four minute increments at http://www.zalma.com/videoblog

Look to National Underwriter Company for the new Zalma Insurance Claims Library,  at www.nationalunderwriter.com/ZalmaLibrary  The new books are Insurance Law, Mold Claims Coverage Guide, Construction Defects Coverage Guide and Insurance Claims: A Comprehensive Guide

The American Bar Association, Tort & Insurance Practice Section has published Mr. Zalma’s book “The Insurance Fraud Deskbook” available at  http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=214624, or 800-285-2221 which is presently available and “Diminution of Value Damages” available at http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=203226972

Mr. Zalma’s three new e-books  were recently added and are available at http://www.zalma.com/zalmabooks.html

Mr. Zalma’s reports can be found on Tumbler at https://www.tumblr.com/search/zalma,  on Facebook at https://www.facebook.com/barry.zalma and you can follow him on Twitter at https://twitter.com/bzalma

Legal Disclaimer:

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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Arson for Profit – Chapter 30

Arson for Profit

Chapter 30

Day 2 – Examination

After many letters and telephone calls attorneys Hazan and Zazian agreed to continue the examination under oath of Dickran Levonyan at Zazian’s office in Encino. At 9:45 a.m. Sam Hazan and MOM appeared at the reception desk of the law office cooperative where Zazian kept his office. The receptionist led them to the conference room where they found the Court Reporter setting up her stenograph machine at the end of the conference table.

“Good Morning, Jennifer.” Sam said as he set his litigation bag on the floor and began removing from it file materials and the transcript of the first session of the examination under oath.

“Good Morning, Sam – MOM.” Jennifer, replied. “Will this session be more sober than the last?”

“I hope so. If not, this will be a long and fruitless exercise.” Hazan, laying out his notes, was pleased to note that the credenza held only a coffee pot, a pitcher of ice water, glasses and coffee cups. MOM, who had laid a yellow pad on the table in front of the seat next to Hazan was pouring himself a cup of coffee. “Thanks, MOM, I would appreciate a cup of coffee as well.”

“No problem” MOM responded, pouring a coffee from the pot into an eight-ounce ceramic mug that had been laid out by the staff of the cooperative. “Just don’t get too wired on coffee. I’m not sure I can take another kiss from Dickran.” He set the coffee in front of Hazan who leaned back in his chair, sipped the coffee, and waited patiently for the interpreter, Levonyan and Zazian to appear.

He did not wait long. With only one third of the coffee gone from the cup Zazian, Levonyan and the interpreter entered together and took their positions opposite Hazan and MOM. Levonyan did not sit, he stood behind his chair, and like a boxer attempting to gain an advantage over his opponent glared at Hazan.

“You do not believe I am wealthy man. You think I am bullshit man, Hazan!”

“Mr. Levonyan, we are not on the record and I warned you about making statements in English. Please, before speaking to me consult with your lawyer.”

“No. I want you to know I not bullshit man. Look!” Levonyan shouted. He then reached into his pants pocket and threw across the conference table, like a child might disperse a set of marbles for a competition, 40 multi-faceted diamonds of various sizes. “That is $1,300,000 in diamonds I took from bank this morning. I don’t need money. I don’t need you.”

“Dickran, this building is filled with hungry, poor lawyers. I see the diamonds and they appear to be what you say they are. I would be more comfortable, however, if they were back in the bank.”

“No problem.” Dickran Levonyan said as he swept the diamonds into a pile, pushed them off the table, and slipped them back in his pants pocket. “Now is time to finish the examination under oath.”

“No, now is not the time to finish the examination under oath. Mr. Zazian, please make arrangements with your client to store the diamonds in a safe place. I am uncomfortable being with more than a million dollars in diamonds without any security.”

Zazian, who watched the interchange silently, his mouth hanging open in shock, snapped back to reality. “Dickran, come with me and we will store your diamonds in the office safe.  Excuse us, Gentlemen, we will return shortly.”

As the two men left the room MOM and Sam Hazan looked at each other incredulously and overheard Zazian say to Levonyan as the went through the door: “What the Hell did you think you were doing? They don’t care about your diamonds. Don’t ever say or do anything again without checking with me first!” Five minutes later, they returned, the interpreter and Levonyan were given the oath, Levonyan agreed there was no need to repeat the admonition about waiting for the interpreter and speaking only in Armenian, and the examination under oath continued.

If Levonyan felt that the exercise with the diamonds would disturb Hazan he was mistaken. He took the hint from Levonyan and ran with it.

“Before we started this examination under oath you showed me some stones you said were diamonds, to whom did they belong?”

“To me, of course.”

“Where were they before you brought them to your lawyer’s office?”

“In the safe at First United Bank.”

“When did you take them out?”

“This morning, just before we started.”

“Were the diamonds you showed me all of the loose diamonds you own?”

“No.”

“How many diamonds did you bring?”

“I brought 40 diamonds totaling 93.4 carats.”

“What value did you place on those diamonds?”

“They are worth about $10,800 per carat today.”

“So, more than one million dollars?”

“Yes.”

“How many carats of diamonds do you own?”

“Maybe 300 or 400 carats.”

“Are they all kept in the box at First United Bank?”

“That is my secret.”

“There are no secrets here Mr. Levonyan, please answer my question.” Hazan responded without changing tone of voice or his calm demeanor.

“No. It is secret.”

“Dickran,” Zazian interrupted. “Please answer the question. I am sure Mr. Hazan will promise that the information will not go farther than his client.”

“Of course,” Hazan replied, unless I am served with a subpoena or some other compulsion.”

“See.” Zazian said to Levonyan. “Answer the question.”

“No.”

“Mr. Levonyan,” Hazan interjected. “Perhaps you do not remember our last meeting where I advised you that the failure to answer an important question, like the one I just asked you, can give your insurers the right to deny your claim. Your insurers don’t want to take advantage of you so I am asking that you go out of this room with your lawyer and confer before you make an unchangeable decision to not answer the question. If that is you decision I will go to another question. Jennifer, off the record.”

The court reporter raised her hands from her machine to shoulder height so everyone knew she was off the record and, after the interpretation was completed Levonyan and Zazian left the room. They returned in two minutes and Zazian announced:

“Mr. Levonyan and I conferred and he is now ready to answer the question.”

“What is your answer, sir?”

“No.”

“Where are the diamonds that are not usually kept at First United Bank?”

“Some are kept in the safe at my El Monte gas station. Some are kept in a secret place in the house where I now live and some were stolen by that crooked fire investigator, Campizi.”

“Stolen by Investigator Campizi?”

“Yes, they were in the safe in my house when I left for the Armenian Businessman’s Association dinner dance and when I sent Campizi, the liar, to get them (because he would not let me into my house) he stole them and claimed they were not there.”

“What was the value of the diamonds in the house?”

“More than two million U.S. dollars.”

“Did you have specific insurance on those diamonds?”

“No, just my policy with Brickwall.”

“You know, do you not, that the limit of liability of your Brickwall policy for the theft of diamonds or jewelry, is only $1,000.”

“Yes, I have been told so by my insurance agent.”

“Do you have any business insurance that might help you recover the loss of the diamonds?”

“No.”

“Were the million dollars in diamonds you showed me today ever kept in the safe in your house where the fire occurred?”

“Yes. But I moved them to the bank, two years ago.”

“Why?”

“Because I felt it safer to have my treasures in different places, away from the prying eyes of my wife.”

“Do you not trust your wife?”

“I trust my wife. But I live in California now. I do not want to tempt her with California Community Property law.”

“I see.  Why did you bring diamonds to show me today?”

“Because the questions you asked me made me believe that you do not trust me. You think I am a liar. I wanted you to know that I am not a bullshit man. That the losses that I suffered are real. That there is no reason for me to set a fire.”

“Is there anything else you want to tell me that would let me know that you have no reason to set a fire?”

“No. The diamonds are enough.”

“Why, if you want me to believe you have no motive to set a fire, do you refuse to give me copies of your tax returns?”

“Don’t answer that!” Zazian interrupted, placing his hand in front of Levonyan’s face even before the interpretation was completed. “You are quite aware, counsel, that tax returns are privileged and that I, as Mr. Levonyan’s attorney, have asserted the privilege.”

“I am quite aware of your position Mr. Zazian. My question stands. Will you answer it Mr. Levonyan?”

“I instruct you not to answer that question.” Zazian, clearly perturbed, shouted with his face becoming flushed as his blood pressure elevated.

“Do you intend to follow your lawyer’s instructions, Mr. Levonyan, even after my warnings about the results of a failure to respond to a material question?”

“I will do what my lawyer says.”

“Please ask your next question, Mr. Hazan.”

“Certainly. Mr. Levonyan, when we broke last time you appeared quite disturbed by my last question. Did you read the transcript of the first session of your examination under oath?”

“No. I did not read. No one read it to me. I do not remember your last question.”

“Let me repeat it for you: ‘Are you aware that your appraiser, Mr.  Krooner, is a convicted felon who was arrested because he was receiving stolen property?”

“No. I was shocked and upset when you told me. I cannot believe such a nice man is a criminal.”

“Before you retained Mr. Krooner as your appraiser, did you do anything to check out his credentials with anyone?”

“No. I just knew him from the auctions and found him to be a fair and reasonable auctioneer.”

“Have you talked to Mr. Krooner since he was at your house to prepare an appraisal?”

“I think I bought a small table from his auction three months ago and an inexpensive painting that is now hanging in our new bathroom. We must have spoken but only about the payment for the items I purchased.”

“Last time, you told me you paid him to prepare a complete appraisal, is that correct?”

“I don’t remember what I said last time, but I did pay Krooner to prepare a complete appraisal.”

“Isn’t it true that Mr. Krooner did not prepare a full appraisal.”

“No. He prepared a complete appraisal.”

“Isn’t it true that your son Hrant typed up the appraisal we marked as exhibit “C” to the first session of your examination under oath?”

“Hrant — he’s just a boy. He knows nothing about appraisals.”

“I know Mr. Levonyan, but my question was, Isn’t it true that Hrant typed up the appraisal that I have just put in front of you?”

“No, it’s not true.”

“How do you spell the English word, ‘porcelain’ Dickran?”

“I am not a school boy! Why are you giving me a spelling test?”

“Please answer my question?”

“Come now, counsel.” Zazian interrupted. “I won’t let him answer the question unless you give me some relevance to the inquiry of the insurance companies.”

“I will assure you the question is relevant and material. Mr. Levonyan has the right – subject to my earlier warnings – to refuse to answer any question I pose. Will he answer the question?”

“No. If you refuse to explain the relevance I will not allow Mr. Levonyan to answer the question.”

“I suggest you reconsider while I ask other questions.” Hazan replied in a tone used by third grade teachers when speaking to a student about to visit the Vice-Principal. “What types of porcelain did you own, Mr. Levonyan, before the fire?”

“I had many different kinds, some Meisen pieces I picked up in Moscow on a business trip, Lladro pieces my wife bought during our short stop in Rome and again, here at the Los Angeles Galleria.”

“What was special about the Meisen?”

“It was more than 100 years old and made in Germany?”

“What did it look like?”

“I showed you pictures last time.”

“I know, but I want to know what you remember.”

“They were drinking mugs with designs of old German soldiers, kings and ladies; they were serving bowls and tea sets. They all had very detailed designs. Mr. Krooner was quite impressed with them.”

“Did they have the mark of the maker on the bottom?”

“I don’t remember.”

“You had some oil paintings – where did you acquire them?”

“Almost everything was acquired in Yerevan or Moscow.”

“Do you have a provenance for any of the paintings?”

“What is a ‘provenance?’”

“It is the history of the object of art, telling us who owned it before you did.”

“I have no such thing.”

“Do you have any receipts or documents that prove you purchased any of the paintings?”

“No. When you buy art in the Soviet Union you do not get receipts.”

“Did you have an inventory of your art when you came to the U.S. to make sure everything got here?”

“No. If I did and the Soviet officials found it they would have confiscated everything. These are National treasures that are not supposed to leave the country.”

“How did you get the items out of the country?”

“I described them as household goods and I gave a few diamonds to the customs officials in Moscow as I was leaving the country.”

“So, the only record we have that these items existed are the photographs you took and the appraisal performed by Mr. Krooner, is that true?”

“It appears so.”

“And, Mr. Hazan,” Zazian interrupted, “at your request I had prints made of the 216 pictures Mr. Levonyan took and, for the record, I am handing them to you now.”

“Thank you Mr. Zazian. Mr. Levonyan. When did you take these pictures?”

“The same week I filled out the application. Mr. Dersogian, my agent, told me to take pictures. I used my Zeiss 35 mm camera and took six rolls of color film with pictures of everything in my house.”

“Where did you keep the pictures?”

“In the safe in my Los Angeles Gas Station.”

“And were you the photographer who took all the pictures?”

“Yes.”

“Where did you take the pictures?”

“In my house.”

“Did you take any of the photographs at any other place?”

“No. They were all taken in my house on the same day.”

The examination under oath continued in the same, dull and methodical vein for seven hours, before it was about to end. Levonyan remained sober. His lawyer only allowed him one Brandy (French) at lunch and no vodka. He remained a gentleman throughout the process. At breaks in the proceeding and at lunch Zazian complimented Dickran on his skill and patience in answering questions that were, to them, mostly boring and irrelevant to the issues raised. It was only in the last hour that Hazan concentrated on the list of destroyed property. Levonyan’s memory appeared to be exceedingly good, remembering what he paid in the marketplace in Yerevan for each item or what he traded for each item. Details were limited but, to the ears of Zazian, more than sufficient when combined with the appraisal and photographs.

To MOM and Sam Hazan, the important questions and answers were slipped in  during the first, fourth and sixth hour of the examination under oath. No sign was given to Levonyan or Zazian — by the demeanor or character of questions — but was rather kept for use later when they were locked in stone by Levonyan’s signature on the transcript. At lunch MOM and Hazan were confident. At the second break, at four in the afternoon, Hazan was convinced he had enough to defend the Underwriters at Lloyd’s and Brickwall to any suit that might be brought by Levonyan. It was time to wrap up the proceedings with the ultimate questions. Sam, leaning forward on his elbows, his chin held in his palms, and said:

“Mr. Levonyan, I’m almost done. I have a few final questions to ask before we close down the day. I caution you, since you occasionally slip, to only answer me in Armenian even if you understand my question in English and are confident of your answer in English. Will you do that for me?”

“Sure.”

“Did you, Dickran, set fire to your house?”

The interpreter — for the first time waited for the question to be completed — and then, cautiously and deliberately interpreted the question fearing that Levonyan’s temper would again surface. To his surprise, Levonyan remained calm and responded deliberately, with a single word: “Yes.”

The court reporter’s eyes opened wide; MOM, leaning back in his chair almost fell over. Zazian, who spoke Armenian sat quietly and smiled and the interpreter said nothing.

“Mr. Interpreter, did I hear what I thought I heard?”

“I’m sorry Mr. Hazan, at first I thought he was speaking English.  In fact, you heard correctly and my interpretation of the answer is ‘who, me?’ because the Armenian word ‘yes’ which sounds just like the English word ‘yes’ means ‘me’ in Armenian.”

“I knew something was wrong. If Mr. Levonyan wanted to confess to arson I would expect him to do so before he sat through two days of examination under oath. Just so I can be clear, please let me repeat the question: Mr. Levonyan, did you set fire to your house?”

“Who me?”

“Yes, did you?”

“Of course not. You, Mr. Hazan have insulted me.”

“No insult was intended, but I must ask the question. Did you, Mr. Levonyan, cause the fire to occur at your house?”

“Never. Why do you keep insulting me?”

“Did you ask someone to set the fire at your house?”

“No.”

“Did you seek help from the ANPA in causing a fire at your house?”

“Unbelievable, you are an evil man to ask.  No, I don’t even know anyone connected to the ANPA.

“Did you present a false claim to either of your insurers, in whole or in part?”

“No.”

“Did you conceal any material facts from your insurers?”

“Not intentionally.”

“Did you misrepresent any material facts from your insurers?”

“No.”

“Let me show you a print of a frame from a CBS News videotape – do you recognize the car?”

“It looks like a Camaro. Why do you ask?”

“Do you know who the car belongs to?

“No.”

“Your application to the insurers reported no other claims or cancellations – your testimony establishes that the answer was not true – did you intend to deceive your insurers?”

“No. I told my agent the truth. I told you the truth. There is no reason for me to misrepresent any facts to my insurers.”

“So, when they ask, should I tell the insurers that the false statements on the application were accidents, a mistake, not intentional on your part.”

“Yes. Thank you.”

“Let me show you a picture taken at Los Angeles International Airport – is that a picture of your son, Levon?”

“It looks a little like him. It is not a very good photograph and the bandage on the head hides his face some. It doesn’t look like him. I don’t know who that is.”

“I have no further questions Mr.  Levonyan. Please, when Jennifer sends you the transcripts, please read them carefully, correct any mistakes you may find, and deliver the original transcript to me as soon as possible. As soon as I receive the signed transcript the insurers will advise you of their decision.”

“When will I be paid?”

“I can’t answer that question. All I can tell you is that the insurers are continuing their investigation into the arson fire at your house and that shortly after you complete your proof of loss by providing me with the signed transcripts of your examination under oath your insurers will advise you of their decision.”


© 2017 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness 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 49 years in the insurance business.

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

Check in on Zalma’s Insurance 101 – a Videoblog – that allows your people to learn about insurance in three to four minute increments at http://www.zalma.com/videoblog

Look to National Underwriter Company for the new Zalma Insurance Claims Library,  at www.nationalunderwriter.com/ZalmaLibrary  The new books are Insurance Law, Mold Claims Coverage Guide, Construction Defects Coverage Guide and Insurance Claims: A Comprehensive Guide

The American Bar Association, Tort & Insurance Practice Section has published Mr. Zalma’s book “The Insurance Fraud Deskbook” available at  http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=214624, or 800-285-2221 which is presently available and “Diminution of Value Damages” available at http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=203226972

Mr. Zalma’s three new e-books  were recently added and are available at http://www.zalma.com/zalmabooks.html

Mr. Zalma’s reports can be found on Tumbler at https://www.tumblr.com/search/zalma,  on Facebook at https://www.facebook.com/barry.zalma and you can follow him on Twitter at https://twitter.com/bzalma

Legal Disclaimer:

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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Arson for Profit – Chapter 29

Arson for Profit

Chapter 29

       Cooperation to Stop Fraud

Bill Mack met Campizi at Tommy’s Famous Burgers on Beverly Boulevard, near downtown Los Angeles. They sat down on an outdoor bench with fifteen napkins each consuming, with pleasure, the messy, greasy and delicious chili burgers for which Tommy’s is famous. Pigeons, looking for handouts circled above and brazenly landed at their feet hoping for an occasional french-fry or bit of hamburger bun.

Wiping off the last of chili burger off his moustache, Campizi laughed as he watched Bill Mack try to hold his burger together. The patty, greased by the chili, kept slipping from the bun.

“Anyone who can eat a Tommy’s burger without losing some is a genius. You, Bill, are obviously gourmet eating challenged.”

“I still see a pile of fourteen chili soaked napkins at your side, Campy.” Bill responded.

“Your moustache is holding more of the chili than your stomach.”

“O.K..  We’re even. No one I know can eat here neatly.”

“Hell, Campy, if it was neat, it wouldn’t taste so good.”

“No question.”

“So why did you invite me to this high-class meal, Campy.”

“I took your Levonyan case to the D.A. and asked that he file arson and felony insurance fraud. It’s one of the best cases I have ever seen and he turned me down flat.”

“Nothing unusual.” Mack responded.

“I know your clients are facing a big claim. I wanted you to know you have no chance of seeing the man arrested. You can’t rely on us. The D.A. just doesn’t think it’s a crime to cheat an insurance company unless you kill a firefighter doing it.”

“Thanks, Campy. It’s good of you to let me know.”

“That’s not the end, Bill. My Captain is as pissed as I am. He asked me to contact you and ask if your client is as set on fighting a false claim all the way as you told me when we first met.”

Mack, wiping his face with a napkin that he had wet with his lemon-lime soda and drying his face with a second napkin looked at Campizi for some hint of the purpose behind his comment. For the last 20 years Mack had (from both sides) come across the unwritten rule that police and arson agencies share nothing with private investigators. The meeting seemed to presage a change in attitude. Finished with his toilet, Mack threw the greasy napkins in a nearby trash barrel and responded.

“The Lloyd’s Underwriter, Richard de Camp, has instructed us and counsel to ‘take no prisoners.’ He believes he has been defrauded and refuses to pay any tribute. He will, he says, spend every pound he has before he will pay the claim.”

“Bill, if that is the case, my Captain has authorized me to open my files to you and to help you in any way I can.”

Mack was struck speechless. Arson-for-profit schemes must be rampant in Los Angeles. He had personally investigated four arson fires in the last year. Campizi must have investigated more. The D.A.’s office, the largest law firm in the country, only assigned one prosecutor to the arson units in the County. He picked his cases carefully and never prosecuted a case unless there was a death or serious injury. Arson-for-profit schemes, even when evidence is available as strong as that gathered by Campizi and Mack, just don’t have enough sex-appeal to gain the interest of the D.A.’s office. Usually, the private investigator, and his client was left alone and naked to fight the false claim. Campizi was offering to throw a blanket of evidence over his shoulders and help produce the evidence needed to prove a civil fraud case.

“I don’t know what to say.” Mack Stammered. “Thank you, Campy.”

“If you’ve finished your lunch, let’s go to the office. The clerical staff should have finished copying my entire file. I have had prints made of all of our photographs and the video tape we got from the L.A. County F.D. helicopter and the Channel 2 video copter that both recorded the first fire and the fight to extinguish it.”

“You have video?”

“Yes. In fact, the Channel 2 video shows a car, without lights going down the hill and passing the fire engines as they came up.”

“Were you able to identify the car?”

“No. It looked like a Camaro, a Firebird or a Mustang.”

“The eldest son, Levon Levonyan, has a black ‘87 Camaro.”

“I know. You’ll find in the file the registration on the car. The D.A. didn’t even think it was interesting unless I could read the license plate off the video tape.”

“Well, civil counsel only has to establish fraud by a preponderance of the evidence, not beyond a reasonable doubt. Sam Hazan can work with that kind of evidence to cause a jury to draw an inference that is much harder for a prosecutor.”

“Bill,” Campizi added as they drove to the Arson Unit offices, “is there something I can do to help you more than the documents in my file?”

“Yes. Did you get the gas chromatography reports?”

“Sure, they are in the file. They show 87 octane unleaded gas.”

“Any particular brand?”

“ARCO Oil. Unfortunately, ARCO sells to fourteen different local stations and independents who market the fuel under their own brand name.”

“Levonyan has an ARCO station, you know.”

“Of course I know. But the machine can’t pin the fuel down to a specific location. The gas could have come from any one of 1500 stations in L.A. County.”

“Seems to me there are a lot of coincidences pointing to the Levonyan family.”

“More than that, I did contact some friends I have in Customs – guys I served with in the Office of Naval Intelligence – who tell me that two days after the fire Levon Levonyan left LAX for Belgium. There is no record that he has returned.”

“They didn’t get a surveillance tape picture of him, did they?”

“You know, I forgot that they told me, they photograph each person leaving and entering the country. There must be a photo.”

“Can you get it?”

“I think I can.”

“Please, contact your friends. I would bet he has bandages on his hand and face or some evidence that he was injured.”

“I’m just a poor civil servant. I can’t afford to take a sucker bet like that.”

“The information will help Sam Hazan when he continues the examination under oath.”

“Anything else I can do to help you?”

“I’m sure there is but I can’t think of anything right now. I’ll study the file materials you are providing to me and get back to you.”

“Don’t let them get away with this crime, Bill.”

“Campy, I’ll try my best. I have some information which will help the Underwriters and Brickwall work to avoid paying Levonyan’s claim. If the Underwriters and Brickwall stick to their guns, they are facing hundreds of thousands of dollars in investigation and lawyers’ fees. Even the most aggressive lose some of their backbone when they pay out $100,000 to a lawyer.”

“Keep their backbones stiff and I’ll get you all the evidence you need.”

“I could use your help, Campy, with a witness.”

“How?”

“Remember I told you Nathan Krooner, the auctioneer, wrote an appraisal the Underwriters relied upon.”

“Yeah, I remember. Wasn’t he convicted of receiving stolen property?”

“That’s the man.”

“What can I do to him? He didn’t light the fire, did he?”

“No. I don’t think he did anything except take $500 for blank appraisal papers.”

“Blank appraisals?”

“Yes, Levonyan told him that his son was an ‘A’ student in typing and that he would type up Krooner’s notes and save the expense of a professional typist.”

“He might as well have handed the man a signed, blank check.”

“He did. When I met Krooner, he thought I was a cop. He didn’t read my private investigator’s license. He gave me information I can’t use openly.”

“Do you think he will give me more?”

“Yes. If you show him a real badge. Tell him he is under investigation as an accessory to an arson-for-profit or insurance fraud (which carries the same penalty as if he did the crime himself) he will do anything you ask to avoid jail. I need a signed, and sworn statement from him that tells the truth about the appraisal.”

“I can do that.”

“Great, just remember – so we can use it in civil court – have him sign his name above the words: ‘I declare under penalty of perjury according to the laws of the state of California, that the forgoing is true and correct.’ He does that and I will take it to MOM and Sam Hazan with recommendations that they deny the claim and fight any suit filed all the way to the California Supreme Court.”

“I’m ready and authorized to work with you to perfect this investigation.”


© 2017 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness 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 49 years in the insurance business.

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

Check in on Zalma’s Insurance 101 – a Videoblog – that allows your people to learn about insurance in three to four minute increments at http://www.zalma.com/videoblog

Look to National Underwriter Company for the new Zalma Insurance Claims Library,  at www.nationalunderwriter.com/ZalmaLibrary  The new books are Insurance Law, Mold Claims Coverage Guide, Construction Defects Coverage Guide and Insurance Claims: A Comprehensive Guide

The American Bar Association, Tort & Insurance Practice Section has published Mr. Zalma’s book “The Insurance Fraud Deskbook” available at  http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=214624, or 800-285-2221 which is presently available and “Diminution of Value Damages” available at http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=203226972

Mr. Zalma’s three new e-books  were recently added and are available at http://www.zalma.com/zalmabooks.html

Mr. Zalma’s reports can be found on Tumbler at https://www.tumblr.com/search/zalma,  on Facebook at https://www.facebook.com/barry.zalma and you can follow him on Twitter at https://twitter.com/bzalma

Legal Disclaimer:

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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Arson for Profit – Chapter 28

Arson for Profit

Chapter 28

Campizi and the Chief

Orson Campizi burst into the office of Captain Wiggins, the chief of the Arson Investigation Unit of the Los Angeles Fire Department, slammed the door behind him, removed his weapon from its holster and placed it, and his badge, on the desk.

“Captain.  I resign. I’ve 24 years on the Department and want my retirement now. I don’t want to deal with another Armenian fire as long as I live.”

“Calm down, Orson.” Captain Wiggins, shocked at the sudden, unanticipated resignation of his best investigator. “I want you to sit calmly down and explain to me why you are making this strange decision. You know if you stay until you have 25 years you will get a larger pension.”

“It’s that ass, Cliff Kleinschmidt at the D.A.’s office. I gave him a package that would be good enough to convince a jury of brain-dead high-school dropouts that Levonyan burned down his house for the insurance money and he refused to file.”

“Did he give you a reason?”

“Of course.” Campizi paused, removing the badge from his wallet. “He said, ‘It’s too complicated.’ ‘Levonyan is an important man in the Armenian community that is almost a majority in Glendale and West Hollywood.’”

“What, we don’t prosecute important people anymore?”

“Not when the victim is an insurance company. Kleinschmidt said to me that ‘the jury just won’t care that an insurance company is being screwed. ‘If, Campizi’ he said with that silly ass grin on his fat face ‘a firefighter had been hurt or killed, then I’d file the case. Let the insurance company take care of itself.’”

“I understand your anger, Orson. But it’s no reason to quit. Put the badge back in your wallet, and let’s discuss what we can do so Levonyan doesn’t profit from his crime.”

“There’s nothing we can do, Captain. Once I have a refusal on my request for prosecution I have no choice but to stop my investigation and go on to something else. I guess I can arrest those 16-year-old kids who set fire to the dumptster by the 7-11 store on Brand Boulevard.”

“You can’t do any more investigation, but you can do something.”

“What?”

“Put the badge back in your wallet and your weapon back in your ankle holster and I’ll explain.”

“I’m listening, Captain.”

“Bill Mack is working on this fire for the insurance company, isn’t he?”

“Yes. He helped me with some of the insurance information. Do you know Bill?”

“He and I were instructors at the Seminar the California Conference of Arson Investigators put on last year in Fresno. Even if he trained with the Los Angeles County Fire Department I found him to be a competent and honorable fire cause investigator.”

“I agree. He seems more trustworthy than most of the private fire cause investigators we run into.”

“I know his boss, Montague, as well. He has helped me resolve several of our cases.”

“So, what can they do to get this villain prosecuted?”

“Nothing. Until there is some change in the L.A. County D.A.’s office, arson for profit, with no injuries, just won’t be prosecuted. But we know the danger. We can’t let these people get away with it.”

“Captain.  You are confusing me. You agree that no matter how much evidence I collect I cannot get the D.A. to prosecute. If we can’t arrest them and put them in jail, we’ll never stop them. They will get away with it.”

“Campy, remember two months ago at the Arson Roundtable there was a lawyer from San Francisco who gave us a drill on the California Insurance Code?”

“Yeah. But what does the insurance code have to do with anything?”

“Remember, it requires arson investigators in California to release to insurance companies all of the results of their investigation as long as it does not adversely affect our criminal investigation. The D.A. has told you that you have no criminal investigation. It’s time the Los Angeles Fire Department Arson Unit starts working with the victims of the crime.”

“The insurance companies?”

“They are not the enemy. They are part of the public for whom we work. It’s time we stopped ignoring them and started working with them. If we can’t get the arsonists prosecuted, at least we can take the profit out of their crime.”

“You know, Captain” Campizi responded, sitting up straight in his chair as if he had a 200-pound weight taken off his shoulders, smiling broadly. “If we do this right the success of the insurance company in the civil case may shame the D.A. into filing criminal charges on the next fire.”

“Now you see.” the captain said, raising from his chair and placing his hand on Campizi’s shoulder. “Campy, I don’t want to lose you from our unit. I want us to start working actively with the insurance companies on all arson-for-profit schemes to take the profit out of the crime.”

“Captain.  I’ll stay. Now I can see some possibility of success in our work.”

“Good, call Bill Mack, ask him to come over to discuss the case. I want you to give him all of the evidence you have included in all of your reports, all photographs, video tapes, laboratory reports, everything you have.”

Campizi walked out of the Captains office with the vigor of a 25-year-old rookie. He saw, for the first time in his career as a firefighter, a chance to make a dent in the crime of arson-for-profit. The first thing he did when he reached his desk was call Bill Mack and make an appointment to meet that afternoon. A new era had arrived at the Fire Department. No longer would they hold their investigations sacred. They would share with the representatives of the victims of the crime, the insurers, and the violent criminals who put in hazard the lives of firefighters and civilians alike would suffer.


© 2017 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness 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 49 years in the insurance business.

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

Check in on Zalma’s Insurance 101 – a Videoblog – that allows your people to learn about insurance in three to four minute increments at http://www.zalma.com/videoblog

Look to National Underwriter Company for the new Zalma Insurance Claims Library,  at www.nationalunderwriter.com/ZalmaLibrary  The new books are Insurance Law, Mold Claims Coverage Guide, Construction Defects Coverage Guide and Insurance Claims: A Comprehensive Guide

The American Bar Association, Tort & Insurance Practice Section has published Mr. Zalma’s book “The Insurance Fraud Deskbook” available at  http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=214624, or 800-285-2221 which is presently available and “Diminution of Value Damages” available at http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=203226972

Mr. Zalma’s three new e-books  were recently added and are available at http://www.zalma.com/zalmabooks.html

Mr. Zalma’s reports can be found on Tumbler at https://www.tumblr.com/search/zalma,  on Facebook at https://www.facebook.com/barry.zalma and you can follow him on Twitter at https://twitter.com/bzalma

Legal Disclaimer:

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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Arson for Profit – Chapter 27

Arson for Profit

Chapter 27

  Analysis & Further Investigation

Sam and MOM met the next day to analyze the results of the first day of the examination under oath and plan further investigation before the completion of the examination. MOM arrived at Sam’s office at 7:30 a.m. bearing bagels, cream cheese and  lox. Sam had ready a pot of dark black coffee. Both MOM and Sam were early risers and they had planned an early morning breakfast and strategy session.

Sam laid out utensils as MOM visited the toilet. Coffee was poured and cream cheese spread on warm bagels. Thin slices of smoked salmon were gingerly laid on the bagel and cream cheese with small rings of sweet red onion. MOM took the first healthy bite, washed it down with a sip of steaming hot coffee, and started the analysis.

“Sam, how effective was the testimony you obtained about Levonyan’s prior losses?”
Wiping some cream cheese off his lips, Sam responded: “Standing alone it’s not enough. However, since you collected evidence that establishes the fact of the prior losses, it bears some weight on a contention by the insurers that Levonyan misrepresented a material fact.  Of course, he can correct the transcript and change his testimony.”

“Clearly, Levonyan is not fluent in English. Can he use that to avoid the effect the misrepresentation?”

“Of course. That’s why I spent so much time in the examination under oath confirming that his broker – who is not a representative of the insurers – spoke Armenian and explained the application to him in his own language.”

“What additional investigation do you think I should do to fill in any facts we don’t have now to fill in the empty spaces?”

“Levonyan,” Sam responded, after finishing off the first of the bagels and while pouring himself a second cup of coffee, “indicated a loss we did not know about before, the loss of some diamonds in an elevator on Hill Street. Get the police report and make contact with your sources in the insurance brokerage business to see if you can find an insurance policy on the diamonds. At the least, confirm that there was a theft. I would like to confirm he was being honest when he testified that he had no insurance at that time.”

“The fact that he had several losses, and a few claims before the fire, had no relationship to fire. They were theft losses, water losses and a landslide. One was a claim on a health insurance policy for Mrs. Levonyan. I can see him saying that it was not relevant.”

“I’ve heard the argument before, MOM. It’s a good one. It makes logical sense and some judges can be fooled by it. What is interesting is that here in California, one of the most liberal jurisdictions in the country, applies the law in a Draconian fashion compared to other states.”

“What do you mean?” MOM said, pulling on his thin beard.

“California codified the ‘Marine Rule’ that was first stated in a decision of the House of Lords in England in 1766. It says, simply, if you lie to an Underwriter when you apply for insurance about a material fact, there is no agreement and the contract never existed even if the lie is innocent and you had no intention to deceive the insurer.”

“But since those claims and losses in his past are not fire claims, how can they be material to this fire loss?”

“MOM, you’re beginning to think like an insured’s lawyer. ‘Materiality’ in the Marine Rule is not concerned with claims but the effect of the lie on the decision of the Underwriter in making his decision to insure or not insure. If Richard can honestly testify that he would not have insured Levonyan if he knew of the losses that were not disclosed, or even if he would have insured him for a higher premium or on more restrictive terms, the policy could be declared void from its inception.”

“That doesn’t seem fair.”

“On the surface, it doesn’t. In reality it is quite fair.”

“I don’t know what Richard will say but I can guess he will say he would not have insured Levonyan at the same premium had he known of the prior losses. But, I also think Richard will be uncomfortable about denying a claim on that ground alone.”

Sam and MOM concentrated on the remaining Bagels and salmon with a vengeance.

“MOM,” Sam, his belly contentedly full, leaned back in his chair, and explained what he had spent most of the night tossing and turning in his bed, preparing. “To make rescission effective the voidance of the policy more palatable to Richard and capable of convincing a court or jury, we need more investigation into the fire and the claim.”

“I saw some further avenues during the examination under oath, Sam.”

“So did I. I would like you, and your people to put emphasis on the values of the property that Levonyan claims are destroyed.”

“You know I handled three claims for his appraiser, Krooner, during the last three years. Bill Mack has met with him and scared the hell out of him. With some effort I can get him on the record.”

“That will be a good start. I’ll ask, in my report, for authority to have our fine art appraiser put honest values on the items claimed destroyed. The photo’s Levonyan gave us should help. I need you to arrange to clean and store the fragments of property for inspection by the appraiser.”

“Already done and stored at Bekins in a large locker, with the assistance of Levonyan’s public adjuster who agreed on all the labeling of the items boxed and stored.”

“I need you to also work with arson investigator Campizi to see if he has any new information from laboratory analysis of the debris he collected at the time of his investigation. The photographs I am sure he took will be of great assistance in the second session of the examination under oath. It seems that Campizi’s photos taken on the day of the fire indicate that much of the property claimed destroyed weren’t in the house.”

“I’ll have Bill Mack speak to him. He’s been cooperative in the past.”

“How about you, do you have any other suggestions.”

“If what you told me about misrepresentations are correct I think I should contact Republican Insurance Company and the three other insurers Levonyan told us about. If, contrary to his testimony, I find that his previous insurance had been cancelled would that make the misrepresentation defense more palatable?”

“Absolutely. The more provable lies, the more convincing the argument will be to a judge. See if you can get those other insurers to help our investigation.”

“Sam, as you know, our record search found several lawsuits where Levonyan appears as a defendant. Many more than one would expect from a recent immigrant to the United States. He has also been a plaintiff in more than twice as many cases as a defendant. I intend to interview the lawyers and parties on the opposite side to see if we can gain an insight into Levonyan.”

“Good. Get as much detail as you can. Also, I want you to use the authorization we got from Levonyan to get the records of his burglar alarm company. It would seem that if someone foreign to the Levonyan family broke into the house and burned it down that the alarm would have gone off.”

“Those records should be available. In fact, even though the alarm is not monitored the alarm box at the house, if not melted, should have a record of the last 60 openings and closings. I will make sure that Bill Mack recovers the box and has it read by the alarm company. I’m surprised that neither he nor I though of that.”

“It’s a complicated case. It was not until I was questioning Levonyan on the application that I thought of it because the application noted that there was a burglar alarm protecting the house. The breach of the warranty of an effective alarm may be easier to prove than that he caused the fire to collect on the insurance.”

“Bill Mack will be at the alarm company’s offices this afternoon. We may have to pay them to go to the house and read the chip if it wasn’t destroyed. If it’s there, they should be able to read it with ease.”

“Good. That should give us enough to finish the second day of the examination under oath. I have already written to attorney Zazian to explain that the insurers have reserved all of their rights and the fact that you are conducting an investigation or that I am examining Mr. Levonyan under oath does not waive the right of the Insurers to declare the policy void.”

“So we continue the investigation.”

“I’m certain that Richard and Brickwall, faced with a claim in excess of three million dollars will not be niggardly with regard to the costs of an extensive and complete investigation. In fact, it’s about 6:30 p.m. in London, I think we should call, fill him in on the results of the first session of the examination under oath and get his authorization to do the further investigation.”

Sam dialed 15 numbers on his speaker phone and for the next half-hour MOM and Sam gave the Underwriter a precis of the examination under oath, promising to give him a detailed written report to share with the rest of the Lloyd’s market. When they were done they had the authority to go forward with the recommended investigation and further examinations under oath.


© 2017 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness 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 49 years in the insurance business.

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

Check in on Zalma’s Insurance 101 – a Videoblog – that allows your people to learn about insurance in three to four minute increments at http://www.zalma.com/videoblog

Look to National Underwriter Company for the new Zalma Insurance Claims Library,  at www.nationalunderwriter.com/ZalmaLibrary  The new books are Insurance Law, Mold Claims Coverage Guide, Construction Defects Coverage Guide and Insurance Claims: A Comprehensive Guide

The American Bar Association, Tort & Insurance Practice Section has published Mr. Zalma’s book “The Insurance Fraud Deskbook” available at  http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=214624, or 800-285-2221 which is presently available and “Diminution of Value Damages” available at http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=203226972

Mr. Zalma’s three new e-books  were recently added and are available at http://www.zalma.com/zalmabooks.html

Mr. Zalma’s reports can be found on Tumbler at https://www.tumblr.com/search/zalma,  on Facebook at https://www.facebook.com/barry.zalma and you can follow him on Twitter at https://twitter.com/bzalma

Legal Disclaimer:

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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Arson for Profit – Chapter 26

Arson for Profit

Chapter 26

The Examination Under Oath

It took two months to schedule but the examination under oath began at Dickran Levonyan’s replacement house, just South of Ventura Boulevard, not quite as high up the hill in Sherman Oaks as the house that burned. Sam Hazan, MOM, a court reporter and an Armenian language interpreter traveled to the house to begin the formal part of the investigation of the Underwriters at Lloyd’s and the homeowner’s insurer.

Sam and MOM worked together for two days to prepare for the examination under oath. Reports prepared on behalf of the Underwriters at Lloyd’s by art appraisers, investigators, fire cause and origin investigators, electrical engineers and experts in Caucasian and Persian rugs were reviewed in detail. Sam and MOM were ready.

They were greeted at the front door by Bedros Zazian, Esq. the lawyer retained by Mr. Levonyan to protect his interest. After interviewing three Jewish lawyers his public adjuster recommended Levonyan decided it was best to retain the services of an Armenian lawyer.

As they were led into the living room where the examination was to be conducted, Mrs. Levonyan came into the room, delivered steaming pitchers of coffee and Tea in a Samovar. On the oak coffee table in front of the sofa where Sam and MOM settled to begin the examination were six different types of sweet rolls, Feta cheese, Colby, Philadelphia Cream Cheese and Sharp Cheddar.

Pleasantries were exchanged, food consumed – to avoid insulting the hosts – and introductions were made in English and Armenian. Attorney Zazian spoke Armenian and English fluently and learned that he and the interpreter’s families came from the same small village in Armenia close to the foot of Mt. Ararat.

“I guess,” Hazan said to break the ice. “It is time we began. Ms. Reporter, please first swear the interpreter and then the witness.”

“Do you solemnly swear to correctly translate from English to Armenian and Armenian to English the questions and answers posed in this examination under oath?”

“I do.” Replied the interpreter in English.

“Do you,” the reporter said, indicating Mr. Levonyan. “Swear to tell the truth, the whole truth and nothing but the truth in this examination under oath, so help you God?”
The interpreter interpreted the question and then responded: “I do” on behalf of Levonyan.

Hazan then explained the operating rules that must be followed in an examination under oath, especially when an interpreter was required. The interpreter, trained at the United Nations, interpreted simultaneously so that there was almost no delay between the question and the answer.

“Mr. Levonyan,” Hazan began in a calm and even voice gained from giving the same introduction hundreds of times before. “You have just taken an oath that is the same oath you would take in a court of law. Even though we are sitting here in your living room drinking the excellent coffee your wife has made for us and consuming the wonderful rolls and cheese, that oath is very serious and bears the same solemnity and penalties as if it were given in a court of law. Do you understand that?”

“Yes.” Levonyan replied in English.

“We have with us today a certified Armenian language interpreter. I have been advised that you speak English haltingly and are more comfortable in Armenian. The Interpreter is here to make sure we get the most accurate testimony possible. For that reason, even if you understand my question when I say it in English you must wait until the interpreter fully interprets it before you answer.  You must also answer the question in Armenian, not English.  Will you do that for me?”

“Ayo.” Levonyan responded.

“Yes.” The interpreter interpreted.

“Fine. As you can see the young woman sitting next to me hitting the keys on that machine is Carol Laurie, a Certified Shorthand reporter. She takes down on the machine everything that is said here. She speaks no Armenian. She will write down nothing you say, even if you say it in English. She will only write down the answers given by the Interpreter. Please try not to confuse us and the court reporter since she has a difficult job.”

“I will do my best.”

“Do you know why you are here answering questions for me today?”

“Not really. My lawyer told me that I must answer your questions or the insurance companies will not pay.”

“You must understand anything you say to your lawyer or he says to you is private. Do not tell me anything about what he has said.”

“I join in that comment.” Attorney Zazian stated belatedly. “Do not tell him anything about what I have said to you.”

“To explain why you are here. When you bought an insurance policy from my clients you made certain promises to them. You promised, for example, to pay a premium. You promised that, if you made a claim, and the insurers asked, you would submit to, and answer questions posed to you, under oath. You are here today to fulfill that promise.”

“I understand. Did the insurers make any promises to me?”

“I am only here, Mr. Levonyan, to ask questions not answer them. However, as a courtesy to you I will answer that question, and only that question. Yes, they made promises to you. They promised to indemnify you (that is, put you back the way you were before a loss) if a risk they assumed by the policy damaged property identified in the policy and if you complied with all the terms and conditions of the policy. For you to fulfill your promise in a way that can be used by your insurers it is necessary that you follow some simple rules.

“In normal conversation you can talk and listen at the same time. The court reporter only has one set of hands. That means you must wait until my question is completed before answering it and I must wait until you complete your answer before I ask my next question. Please try to follow that rule.

“I do not want you to guess at the answer to any question. If I ask you, for example, ‘how big is this room?’ you could not answer accurately without first measuring it, but you could approximate that it is about six meters by five meters. I am entitled to an estimate, but not guesses.

“I am a lawyer.” Hazan continued with the ease of years of giving the same speech to hundreds of witnesses. “That means I suffer from a professional handicap – I sometimes ask questions that only I understand. If you do not understand my question please do not guess at the meaning, make me repeat the question or rephrase it in such a way that you do understand it.

“Your lawyer, Mr. Zazian is present. If you ever need to confer with him please advise me and we will go off the record so you can go to some private place and confer.

“When we are finished with the questioning today Jennifer will transcribe her notes into question and answer form. You will be required to read, or we will have the interpreter read and translate, each question and answer, correct any errors that may exist and sign the transcript of the examination under oath under penalty of perjury. Until the examination under oath is completed and the transcript is corrected and signed by you under penalty of perjury, the proof of loss you are required to present to your insurance companies is not completed and they will not be able to make a decision about your claim. Do you understand?”

“Yes.”
“Do you have any questions about the examination under oath procedure?”

Attorney Zazian shook his head from side to side and Levonyan responded: “No.”

“Is there any physical reason why you cannot give your best testimony today?”

“No.”

“Have you taken any drugs or alcohol in the last 24 hours?”

“Yes. I had some Armenian Cognac after dinner last night and my orange juice glass this morning is filled half with orange juice and half with Cognac.”

“Does the alcoholic content of Armenian Cognac and orange juice affect, in any way, your ability to testify?”

“No.”

“Counsel,” attorney Zazian interrupted. “It is an ethnic thing and not unusual. I am convinced that Mr. Levonyan has complete control of his faculties and that the consumption of small amounts of Cognac will not impair his ability to testify truthfullyand accurately.”

“Thank you, counsel.” Hazan responded. “Based on your representation I will proceed with the examination under oath.”

Hazan had blocked off three days in a row on his calendar, because of the extensive number of items involved and the need to filter all of his questions through an interpreter.

He knew he could not “interrogate” Levonyan, in the classic sense but must conduct an interview that, by its thoroughness and attention to detail, will ferret out lies if any are told. He expected that Levonyan, his lawyer Bedros Zazian and the interpreter would soon become bored with his questions. That was part of his plan.

A witness, especially one who had grown up dealing with representatives of a repressive totalitarian regime, would only testify to facts the witness believed his questioner wanted to hear. Sam Hazan had steeled himself to be meticulous in his questioning so that a rapport could be established with the witness and so that the witness would believe that he was less than adequate as an interrogator.

His questions began, therefore, with the birth of Dickran Levonyan and elicited every place he had lived since birth, every school he had attended, every type of training he had received (whether at a school or university or on-the-job) and every job he had ever held. Since none of the facts concerned Levonyan, he answered truthfully. He was calm and would, at breaks in the proceedings, refill his orange juice glass.

For the first two hours Sam’s questions only elicited innocuous background information about Levonyan.

Just before they were about to break for lunch Sam Hazan began to ask questions that only he and MOM realized were of importance to his investigation.

“In the last six years that you have owned your gas station, Mr. Levonyan, have you ever been robbed?”

“Yes, in fact only three months ago some black young men wearing baggy pants and showing off red checked boxer shorts took $300.00 from the station attendant as I watched through the window. I called ‘911′ but by the time the police arrived they were gone.”

“Was anything taken other than cash?”

“No.”

“Was that the only time your gas station was held up?”

“I think there were three other times. We never keep a lot of cash in the station, it goes into the safe or the bank, so they never took more than $500.00.”

“Has your station ever been burglarized?”

“What is ‘burglarized?’”

“Has anyone ever broken into the station and taken things after you were closed?”

“Oh. Yes, once someone broke the door and took 15 radial tires and a Snap-On tool box full of mechanics tools.”

“Did you ever make a claim to your insurance company about the robberies or the burglary?”

“What does that have to do with the fire at my house?”

“I told you, Mr. Levonyan, I don’t answer questions I just ask them. Please confer with your lawyer.  He will tell you that I have the right to ask these background questions.”

“Please, Dickran, just listen to his questions and answer them.” Attorney Zazian pleaded.

“If he asks you an improper question I will tell you not to answer it.”

“I will obey my lawyer.”

“Thank you, Mr. Levonyan. Did you ever make a claim to your insurance company about the robberies or the burglary?”

“Yes, the burglary. The robberies were all below my deductible.”

“And who was the insurance company.”

“Farmers and Merchants Insurance Company.”

“Did they pay your claim?”

“Yes, unlike your clients, almost immediately and just what I asked them to pay.”

“How much did they pay you?”

“$12,300.00.”

“When?”

“Four months ago.”

“Have you made any other claims to any other insurance company besides my clients?”

“I don’t remember.”

“Perhaps I can refresh your recollection. Do you remember that before my clients you were insured, at your house by Republican Casualty Insurance Company?”

“I don’t remember the names of insurance companies.”

“Did the roof of the house leak 18 months ago?”

“Yes, it did. Now I remember. The rain came into the living room like there was no roof at all. It ruined the walls, the ceiling, the rugs and some of the furniture. I met with someone named Ron. Was he with this Republican Casualty?”

“I think the name was Rodney Walsh. Do you remember meeting with a person by that name?”

“I think so. Yes, he came with a contractor. I now remember how odd I thought the name Rodney was.”

“Did Rodney pay you for the damage to your house and its contents?”

“Yes, he must have because we fixed it all before the fire.”

“When did he pay you?”

“I don’t remember?”

“How much did he pay you?”

“I think, about $16,500.”

“And who did the work to fix the house?”

“My sons and I.”

“What did you do?”

“We patched the plaster and painted the whole house. We then went to Carpets ‘R Us and bought new carpets and laid it down on the tacks left by the original carpet installers. We did a very professional job and with the money left over I was able to buy a four-year-old Volkswagen Rabbit for my son Hovsep.”

“Thank you, Mr. Levonyan. I think it is now time to go off the record and break for lunch.”

“That’s fine.  My wife has made a very nice Armenian lunch with roast lamb, stuffed bell peppers and new potatoes. We would be pleased to have you join us.”

“Thank you, Mr. Levonyan. Please convey our regrets to Mrs. Levonyan, but neither I nor Mr. Montague can accept your kind offer. I’m sure, if you ask him, your lawyer will explain why we cannot accept.  It is now 12:14 p.m. We will return at 1:20 and continue until 5:00 p.m. unless we finish sooner.”

Fifteen minutes later Sam Hazan and MOM settled down in a booth at the Great Greek Restaurant on Ventura Boulevard. Hazan’s face was marked by a Cheshire Cat grin that had been carved into his face since he climbed into MOM’s Navigator. Iced Tea was delivered and when it was clear they would not be overheard, Sam, sipping on his iced tea and lemon – no sugar – breathed heavily.

“Well, MOM, it looks like we are on the way to developing a strong defense to this claim.”

“Really, I though you were just calming him down with pleasantries. Did I miss something this morning?”

“The application, MOM. Remember, the application submitted to the Underwriters at Lloyd’s and to the homeowner’s insurer both said that he had never incurred a loss in the past three years. I now have his testimony that one statement in the application for the policy was false.” Sam said, with conviction.

“We always, knew he was a liar. Why is this such a strong defense to the fire claim? His past losses have nothing to do with fire.”

“Of course they don’t. They do, if my understanding of the underwriting standards of the Underwriters at Lloyd’s, especially Richard, is correct we can prove that had the Underwriters known the true facts the policy would never have been issued.”

“So, it was issued. They will just argue that the insurers should never have relied on the information given by Levonyan.”

“That kind of argument, in a California court, will invariably fall on deaf ears.”

“Why?”

“Our law, with regard to the placement of insurance is Draconian compared to that of other states.”

“I always thought California was the most liberal – insured persons favoring – court system in the country.”

“In many ways you are right, MOM, but not when it comes to the placement of insurance.  Although California courts invented the so-called tort of bad faith, it also takes very seriously the implied covenant of good faith and fair dealing. It expects both parties to an insurance contract to deal with the other fairly, and in good faith. And, if it finds that one party was deceived by the other it allows the party deceived to declare the contract of insurance void. As if it never existed.”

Lunch of  Spanokopia (spinach pie), lamb kebobs, dolmates and Greek Village salad were delivered as they talked. MOM munched on soft pita bread where he had placed chunks of lamb and heavy Greek yogurt. Looking up at Sam, pensively, MOM asked: “Sam, do you mean that if the Underwriters give Levonyan back his premium and declare the policy void they need pay him nothing? That seems rather severe and to be the kind of evil and unkind action insurers are often accused of doing.”

“I said the law was Draconian in this area. But, really,” Sam said, pausing only slightly to take a healthy bite out of his lamb and crunchy sourdough bread. “It has been the law of California for as long as I have lived that an insurance company is entitled to determine for itself what risks it will accept, and to know all facts relative to the applicant needed to make its decision to insure or not insure.  Insurers doing business in California have an unquestionable right to select those whom it will insure and to rely upon him who would be insured for such information as the insurer desires as a basis for its determination to the end that the insurer may make a wise choice in selecting the risks it is willing to take.”

“I understand. If not, the applications would be a waste of time and I would be spending all of my time investigating people before insurance was sold. Why, if they had to do that on every risk, no one could afford to buy insurance since the cost of such a complete background investigation would be more than the premium charged.”

“That’s the reason for the law. An insurer takes the word of the insured as gospel, when making its decision. If the insured is later proved to have made false statements on the application, even if it was unintentional, the Underwriters were deceived and they have the right to rescind the policy (determine it never existed) and put both the Underwriters and the Insured back in the same position they were before the policy was issued.”

“Now I understand why you wanted me to contact that adjuster with Republican Indemnity. He corroborates the testimony of Levonyan and establishes the existence of an earlier claim that was not disclosed to the Underwriters.”

“That’s right, and this afternoon, when we go back, I will continue (without ever showing him the applications that he signed) to obtain testimony from Levonyan that the statements of fact on the applications were false and establish that he deceived the Underwriters, even if he did it innocently.”

“Sam.” MOM started, finishing his last bite of Greek Village salad. “It seems unfair to me that someone could be deprived of his right to collect on an insurance policy just because he made a mistake, without any intention to deceive or hurt anyone.”

“It seems that way, but it is absolutely fair. In fact, Rescission is called an equitable remedy. In the law ‘equity’ is synonymous with ‘fairness.’”

“How is it fair?”

“The best example I can give you comes from a decision of the English House of Lords, their equivalent of our U.S. Supreme Court, called Carter v. Boehm. Mr. Carter was an insurance Underwriter at Lloyd’s. In 1766 he agreed to insure a merchant with a fort in the South Pacific. Mr. Boehm owned the fort which was destroyed. When the news finally reached England that the fort was destroyed Mr. Boehm made claim to Mr. Carter who refused to pay because the property was not really a fort but a trading post and that he was not advised of the pirates working in the area. Boehm appealed claiming he did not deceive Carter. Carter, the evidence showed, knew more about the conditions in the South Seas than did Boehm. He argued he would never have accepted the risk of loss of a fort had he know of the situation faced by the fort.

Lord Mansfield, writing for the House of Lords, stated what has come to be known as the ‘Marine Rule’ in insurance coverage parlance.  The Marine Rule was codified in the California Insurance Code in the 1930’s. What Lord Mansfield said was that insurance is a risk transfer device where, for the payment of a premium, an insurer agrees to take on the risks of another, the insured. The essence of the agreement is that both parties agree on the risk being taken and that they must deal with each other fairly and with the utmost good faith.

Mr. Carter had agreed to insure Mr. Boehm against the risk of losing his fort. He did not insure the fort. At the time the agreement was made, Carter knew of the severe risks the fort faced by being damaged since it had already been destroyed by pirates. As a result Lord Mansfield refused to rescind the policy and ordered Carter to pay Boehm.”

“In our case” Sam continued. “The underwriters did not know they had been deceived. Richard de Camp made it clear that he did not know of the true condition and that had he known of the condition of the house, the existence of prior claims, the prior cancellation and the less than professional nature of the appraisal he would never have agreed to the risk. It is our job to prove that the facts represented in the application were not true and that Levonyan knew they were not true when they were made.”

“Do you think we can use that reasoning to defeat this arson, which my investigators tell me was probably set, or caused to be set, by Dickran Levonyan.”

“MOM, I think we have a better chance of defeating his claim using the law of rescission than I do convincing a jury that Levonyan set fire to his own house.”

“It’s time to get back to the Levonyan house.” MOM reminded Sam.

MOM paid the check, left a 20% tip, and rose ponderously to walk to the entrance where the valet was holding his Navigator since it was too tall to fit in the Underground garage. The two men drove in silence back to knock, at 1:15 p.m., at the Levonyan’s door. Greeted with hospitality by Mrs. Levonyan they followed her back into the living room where they again refused an alcohol-laced beverage from Levonyan.

MOM whispered into Sam’s ear, “Hit the highlights of what you want to get today quickly, Dickran is holding what, by my count, is his sixth orange juice and Cognac if he didn’t drink at lunch. I don’t think we will be able to go all the way to 5:00 p.m.”

Hazan looked closely at Levonyan. His physical appearance, demeanor and speech patterns had not changed. Regardless of the number of alcoholic drinks he had consumed Levonyan showed none of the generally understood signs of intoxication. Sam nodded to MOM, acknowledging that he understood the comments, and sat heavily in the sofa.

“Counsel, are we ready to continue?”

“Yes. And, for the record you missed an exceptional Armenian lunch prepared by Mrs. Levonyan.”

“I regret that Mr. Montague and I were required, by the press of other business, to refuse the generous offer of a meal.”

“Back on the record.” Sam said, in a monotone, to the reporter. “Mr. Levonyan, is there any reason why, after lunch, that you cannot give your best testimony this afternoon?”

“None.”

“Thank you, then I will continue where we left off.” Sam said in the tone reserved for school teachers about to administer a pop-quiz. “You told us about the leaking roof. Have you ever incurred a loss, since entering the U.S., to any real or personal property, whether a claim was made to an insurance company or not, that you have not told us about already?”

“Would the fact that the neighbors below my swimming pool sued me be considered a loss?”

“Tell me what happened to cause them to sue you?”

“Remember, three years ago when there were unnatural rains and we had four inches of rain in Los Angeles in a two-hour period?”

“Yes, I remember. What does that have to do with a loss?”

“Behind my swimming pool, my lot drops down fifty feet to a chain link fence that is the top of the back-yard of a Mr. Cheng Lei. When the rains came part of my hillside fell into Mr. Cheng’s back yard, filled his master-bedroom with 18 inches of mud and made a mess. There was no damage to my property.”

“Why did Mr. Cheng sue you?”

“He claimed that I had removed too much of the brush as a fire prevention action so that the hillside was weakened and caused damage to his property.”

“How much did he seek to recover by the lawsuit?”

“I think he sued me for $1.5 million.”

“Is that suit still pending?”

“No, Republican Indemnity settled with him. I don’t know how much they paid.”

“Is that the same company that paid for your roof leak?”

“Yes.”

“Were you visited by the same adjuster about the Cheng lawsuit?”

“No, the adjuster was different. I don’t remember his name. I do remember that he hired lawyer Winston Charles O’Reily to defend me. O’Reily came to my home several times to discuss the lawsuit. A very nice man.”

“I agree.  Winston is a very nice man.  Will you, Mr. Levonyan, authorize me to speak to your lawyer, Mr. O’Reilly. Since the case is settled, give him permission to allow me or Mr. Montague to review his files?”

“Sure, you don’t need my permission. He’s a lawyer, you’re a lawyer, just talk to him.”

“It isn’t that simple, Mr. Levonyan, I need your permission in writing to speak to Mr. O’Reilly.”

“Don’t worry.” Attorney Zazian interrupted. “Just send me the authorization and I will have Mr. Levonyan sign it.  He does not understand the rules of professional conduct under which we lawyers must operate.”

“Thank you, counsel.” Sam replied, with honest gratitude. “I will prepare the authorization as soon as I return to my office.” Hazan paused for a moment, picked up a glass of water and drank deeply, before he continued.

“Mr.  Levonyan, why did you change insurance companies from Republican Indemnity, who took care of two serious claims for you, to my client?”

“Because my broker, Mr. Harry Dersogian called me and told me I needed to get a new insurance company.”

“Did Harry tell you why?”

“I did not ask.”

“Did Harry tell you why?

“He told me that because of the money they had to pay to Mr. Cheng and the money they were paying me for the roof leak, I would have to be insured with them for 1,000 years before they made a profit, so they refused to insure me any more.”

“Did you ever receive from Republican Indemnity Company a document called a ‘non-renewal notice’ or a ‘cancellation?’”

“Objection,” Zazian interrupted, “the question is compound.”

“Of course it is counsel,” Sam agreed. “Please answer the question Mr. Levonyan.”

“No.” Zazian interjected. “Don’t answer the question.  It is improper. I instruct you not to answer.”

“Mr. Levonyan, will you follow attorney Zazian’s instruction?”

“He is my lawyer. I must listen to his advice.”

“I will take that as a ‘yes’ answer to my question.” Hazan paused, steepled his fingers as if in prayer, and looking over the top of them through his bifocals, said: “Mr. Zazian, I understand that in depositions lawyers often instruct their clients not to answer. I believe you are not familiar with the examination under oath process. I am compelled, therefore, in the interest of good faith and fair dealing, to advise you that if your client continues in his refusal to answer what the Underwriters believe to be a material question the insurers can, for that reason alone, reject Mr. Levonyan’s entire claim. I say this only so you can confer since I prefer not to take advantage of Mr. Levonyan’s lack of knowledge of the law surrounding this issue. I can also refer you to several California Supreme Court decisions that reflect that the failure or refusal to answer a valid and material question at examination under oath can be a ground to deny a claim for failure of cooperation.  Do you, after my long speech, wish to confer.”

“No,” Zazian replied, “the instruction remains unchanged.”

“Fine, I respect you decision although I believe it to be incorrect.” Hazan directed his attention back to Levonyan. “Did Republican Indemnity deliver to you, Mr. Levonyan, a notice of cancellation?”

“No.”

“Did Republican Indemnity deliver to you, Mr. Levonyan, a notice of non-renewal?”

“No.”

“Did Republican Indemnity deliver to your agent Harry Dersogian a notice of cancellation?”

“Yes, I believe it did.”

“Did you see that notice?”

“No, I just talked with Harry and he told me he had received a copy and that, as of 30 days from the date of our conversation I would have no insurance except that which I am able to purchase before the deadline. He told me that the California FAIR Plan Association is my best bet and that he would help me apply.”

“Did you get a policy with the California FAIR Plan Association?”

“No, I found the policies issued by your clients to be better, more comprehensive, and cheaper. I switched immediately.”

Has any other insurance company cancelled a policy issued to you or your wife?”

“I’m not sure. Our health insurance policy sued us saying we had lied about Anahid’s health when we applied for the policy. We did not. We told the agent about her breast cancer and that was why we needed the policy. I have paid every premium since that day.”

“Did you lie about Anahid’s health?”

“No. We told them the truth?”

“Just like you are telling me the truth today, correct?”

“Of course. I have taken the oath.”

“Are there any other losses you did not tell me about yet?”

“It has nothing to do with the house, but two years ago I was in the 611 South Hill Building, taking some of my diamonds to a dealer I sell to, when I was robbed in the elevator at gunpoint. I lost $200,000 in diamonds.”

“Did you make a claim to any insurer about the loss of the diamonds?”

“No, I don’t have any jewelry insurance.

“Did you make a claim to any insurer about the loss of the diamonds?”

“Counsel, I object. You are badgering my client unnecessarily.”

“I am not, Mr. Zazian, I am merely trying to get an answer to my question. Mr. Levonyan, did you make a claim to any insurance company about the theft of your diamonds?”

“As God is my witness, no.”

“Thank you.

“Have you now told me about every claim you have ever presented to any insurance company?

“Ever?” Zazian asked.

“At any time in your life?”

“Yes I have told you everything. On my mother’s grave my answers are not bullshit.”
Sam paused, picked up a glass of water and drank from it. Levonyan stood, without warning or comment, and walked to the kitchen.

“Let’s go off the record for a while so Mr. Levonyan can fill his glass.”

As they waited, MOM sitting beside Sam, held up seven fingers indicating that Levonyan was filling his seventh glass of Cognac and orange juice. Sam decided it was time to ask a question that might offend Levonyan. He knew, from experience, that whenever a witness calls on the deity or swears on the grave of a parent, there is a good probability that the witness is not telling the truth.

Levonyan, considering the prodigious amount of alcohol he had consumed, made the walk to and from the kitchen in a straight line, did not stop at the bathroom and sat calmly, easily and comfortably back in his chair.

“I apologize,” Levonyan said to the interpreter. “I was becoming dry from all these questions and needed to refill my glass of orange juice. I have truly become a Californian with all the orange juice I consume.”

“Are you comfortable and ready to testify more, Mr. Levonyan?”

“Yes, I am ready.”

“When you were about to buy a policy from my clients, the Underwriters at Lloyd’s, you first obtained an appraisal of your fine arts, did you not?”

“Yes, of course.”

“And who was the person you hired to prepare the appraisal.”

“Nathan Krooner, of the Krooner Galleries on Ventura Boulevard in Sherman Oaks.  I had bought some things at his auction and knew him to be a fair man. I noticed on his business card that he gave me the last time I attended an auction that he did appraisals so, when my insurance agent told me I needed an appraisal, I called Nathan.”

“Is it your testimony, then, that the only reason you obtained an appraisal was because it was needed to get an insurance policy?”

“Yes.”

“Did Mr. Krooner charge you for his services?”

“Of course.”

“How much?”

“$500.00.”

“How long did he spend in your house doing the appraisal?”

“It seemed like forever but I think he spent at least six hours.”

“What did he do while he was at your house?”

“He looked at everything in the house and wrote many notes?”

“Did he use any tools?”

“Tools?”

“Yes, like a measuring tape, a loupe (a special magnifying glass), a ruler, a gauge, a microscope, things like that.”

“He had a tape measure. I remember him measuring rugs and paintings.”

“Did he take pictures?”

“No, because I did.”

“And the pictures you took, where are they?”

“They are here.” Levonyan said, handing over a package of 150 color photographs tied with a rubber band.

“Why did you take these pictures?”

“Because my insurance agent told me it would be easier to settle any claim we might have if I had pictures.”

“And what did you take pictures of?”

“As Mr. Krooner went through my house I took a picture of everything that he told me would be described in his appraisal.”

“Were there any things on the appraisal that you did not photograph?”

“I don’t think so.”

“Did you photograph some of the things that are not on the appraisal?”

“Yes, some things show in the photographs that are not in the appraisal.”

“So this photograph of a seascape that is on top, is that one of the items appraised by Mr. Krooner?”

“Yes. That was my most important painting. It was painted by the Armenian painter Ayvezovsky (he changed his name to a Russian one) who is the most famous of all Armenian artists. Many of his paintings are National treasures and are in the Hermitage Museum in Leningrad.”

“Was this an original Ayvezovsky oil painting?”

“Certainly.”

“How did you get it to the United States if it was a National Treasure of the Soviet Union?”

“I put it in my personal luggage as ‘household goods.’ Of course, since I left from Moscow, I had to go through Russian Customs. Russia, like Armenia, pays its Customs officials very little money. To protect my property so that it could all find its way to the U.S. I had to give the chief Customs Inspector three diamonds weighing more than one carat each.”

“When you arrived in the U.S. did you declare to U.S. Customs that your were bringing into the U.S. a valuable National Treasure of the Soviet Union?”

“Not necessary. All the U.S. government wanted to know was if we brought household goods. We were refugees from Soviet tyranny. They only wanted to help us.”

“I see. And did you take photographs of other valuable things as time went by and Mr. Krooner kept on with his appraisal?”

“Yes.”

“How long did you have to wait before you obtained the final appraisal?”

“Two weeks, before it was typed.”

“How did the appraisal come to you?”

“In the mail.”

“Did you give Mr. Krooner any documents that helped him identify the valuable  items?”

“I would only help him translate to English letters the Cyrillic names of some of the Russian painters, like Ayvezovsky.”

“Did you tell him how much to put down for the value of any of the items?”

“Of course not. He is the expert.”

“Did Mr. Krooner tell you that he was a convicted felon?”

“No.

“Did he tell you that he had been convicted of the crime of purchasing stolen household goods?”

Levonyan rose from the easy chair he was in so quickly he knocked over his half empty glass of orange juice and Cognac. He clenched his fists. His face flushed bright red and then, as his anger rose, became white. The pupils of his eyes dilated and he began to hyperventilate. In English he shouted at Sam, who was also raising himself off the sofa. “I no Bullshit Man!”

Sam and MOM were both standing now, struck dumb by such a violent and non-responsive reaction to a straightforward question. Levonyan struck his right fist into his left palm violently, hit his chest over and over again with both fists and was starting to step over the coffee table to strike at Sam when attorney Zazian stepped between the table and Levonyan and grasped the man, who outweighed him by almost 100 pounds, in a bear hug.

“I believe we must suspend this examination under oath.” Zazian said, while struggling to hold back Levonyan. “My client is clearly fatigued and nothing can be served by continuing this day. Please pack up and leave and we will complete the examination under oath at a more convenient time.”

“I agree.” Said Sam, relieved. He, MOM, the court reporter and interpreter quickly packed while Zazian forced Levonyan into the kitchen. Just as they were going to the door, Levonyan, much calmer but showing the effects of the alcohol for the first time, held out his hand to MOM.

“Montague, you are a gentleman. Not like the Jew lawyer. I will deal with you.”

“Thank you, Mr. Levonyan for liking me. You must, however, deal with Mr. Hazan and me if you want to resolve your claim.”

“I will, only so long as you are always present, my good friend.”

“I will be present, always.”

Levonyan tried to throw his arms around MOM – they weren’t long enough – and planted a wet kiss on the cheek. MOM was sickened by the drunken show of emotion but kept his demeanor blank.

Everyone departed, Hazan and Zazian agreed to delay the next session to a day in the near future, to be agreed. Zazian suggested his office as the location, where the use of Cognac could be controlled. MOM and Sam agreed, as they left the house, to meet in MOM’s office the next morning to have breakfast and to discuss the need to report to the Underwriters the results of the partial examination under oath and its unusual conclusion.


© 2017 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness 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 49 years in the insurance business.

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

Check in on Zalma’s Insurance 101 – a Videoblog – that allows your people to learn about insurance in three to four minute increments at http://www.zalma.com/videoblog

Look to National Underwriter Company for the new Zalma Insurance Claims Library,  at www.nationalunderwriter.com/ZalmaLibrary  The new books are Insurance Law, Mold Claims Coverage Guide, Construction Defects Coverage Guide and Insurance Claims: A Comprehensive Guide

The American Bar Association, Tort & Insurance Practice Section has published Mr. Zalma’s book “The Insurance Fraud Deskbook” available at  http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=214624, or 800-285-2221 which is presently available and “Diminution of Value Damages” available at http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=203226972

Mr. Zalma’s three new e-books  were recently added and are available at http://www.zalma.com/zalmabooks.html

Mr. Zalma’s reports can be found on Tumbler at https://www.tumblr.com/search/zalma,  on Facebook at https://www.facebook.com/barry.zalma and you can follow him on Twitter at https://twitter.com/bzalma

Legal Disclaimer:

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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Arson for Profit – Chapter 25

Arson for Profit

Chapter 25

Putting The Claim Together

Krikor Kaplianian and his staff claims adjuster met with Dickran Levonyan at the scene of the fire exactly five days after Levonyan had signed the contract. He had explained to Levonyan that no work would be done until 72 hours after the contract was signed since state law allowed an insured to cancel a public adjusting contract for any reason within 72 hours of the time it was signed.

With Kaplianian and the adjuster came a team of inventory specialists from his firm. They would sift through the debris to make an inventory of every item of personal property in the house. This task, usually performed by Salvors hired by the insurer, was essential to the presentation of a claim. It was more important to be done by Kaplanian’s staff since Salvors hired by insurers insisted on only counting what was visible.

Kaplianian, with the assistance of Dickran, would extrapolate from the list of debris found by the inventory staff what he called a “memory list” of items not necessarily visible in the debris.

“I understand the need for people counting, Krikor” Levonyan asked. “but how do we convince the insurers that property that cannot be seen was destroyed in the fire?”

“Remember, Baron Levonyan,” Kaplianian responded with the tone of a pre-school teacher explaining the need of a nap to a three-year-old. “Most people, even adjusters, think that fires totally destroy property or that much is thrown away by the firefighters. I have developed a list of common items that are in almost every house. For instance…” He bent down and picked up a half-burned roll of toilet paper. “Everyone has toilet paper in their house. I see one roll here so your list will show that you lost two 30 roll packages of toilet paper you had purchased at the Discount Club where you always pay cash.”

“But we never shopped at the Discount Club.” Levonyan replied.

“The insurance company doesn’t know that. Even if you only had one roll in each bathroom, they will agree to pay for all 60.”

“I see now why you told me your fee would cost me nothing.”

“We will do similar things in each room of the house. Never greedy. Never overdone. Just enough to make the claim healthy and your recovery sufficient to pay our fee and still put you back better than the way you were before the fire.”

Dickran looked at Kaplianian, a man only 30 years of age, large pure black hair combed straight back and held down with some form of grease, standing in the debris in an eight hundred dollar suit and wing-tipped shoes. Here was an immigrant who was a success in the U.S. He saw a man who kept the wiles of the old country, the bargaining abilities he learned in the markets of Yerevan, and adapted them to the American way of life. A success more than Levonyan could hope for in his gas station businesses. A man to be admired who could add profit greater than Levonyan expected from the arson fire.

They walked through the scene of destruction together. Levonyan would occasionally answer questions posed to him by Kaplianian. Levonyan would point out things in the debris that were not obvious like pieces of board that once held religious images.

“Were the Icons antiques, Baron Levonyan?” Kaplianian asked.

“I don’t know. They were all hand painted and seemed to be old. I bought them in the market in Yerevan before I left the country.” Levonyan lied. He had purchased them in the market in Yerevan but they were not old. They were poor copies of famous icons where decals of the famous icon were glued to varnished wood. He had purchased them for two Rubles each. He was simply following Kaplianian’s lead and his claim would show 200 antique icons valued at $1,500 each when, in fact, he only had 50 icon decals which could be purchased in any city in the massive Soviet Union for less than $15 U.S. dollars.

“Our list is growing quite nicely, Baron Levonyan.”

“Yes,” Levonyan replied. “I had not realized how much we had brought with us from Yerevan nor how much we had acquired since I arrived here.”

“Most people don’t realize how much they have. My people should have a preliminary draft of the cost to replace the contents of your house within the week. We will meet again, fill in the blanks, expand where necessary to cover those things that were not available to see, and be in a position to present the list to Mr. Montague.”

“What about the house? It is open to the weather.”

“I have spoken with Montague and he has authorized a contractor to place a tarp over the roof to prevent further damage.”

“How long will it take to rebuild?”

“I have called in a contractor to make a repair estimate. Montague has called one of his own. Once we have the estimates and agree on the cost of repair the reconstruction can begin.”

“Do you need me for that?”

“Yes, the contractor will be here within the hour and he will need your help in determining the special treatments in the house that are not visible because of the destruction.”

“What will he need to know?”

“Things like the type of carpeting in each room, was it $40 a yard wool or $10 a yard nylon? Was the kitchen floor a ceramic tile or linoleum? What type of wall coverings did you have? Were there moldings, chair rails, special paint treatments? Were the doors hollow core or solid core? Were there built-in appliances? What brands were the appliances?”

“I see.” Levonyan said as he rubbed his bald head with his right hand. “And, as with the contents, I am to follow your lead to maximize recovery from the insurance company.”

“You learn very quickly, Baron Levonyan.”

“What can I expect from the insurance companies? Will that fat giant cause me grief?”

“I will act as a buffer between you and Montague. He can only talk to you through me. It is my job to make the claim as painless as possible for you.”

“I want it to be profitable, as well as painless.”

“That is why you hired us, Baron Levonyan.”

“When will I be paid?”

“That I don’t know. It depends on Montague and his clients. They often work harder and longer when there is an arson fire. Since I can still smell the gasoline, this long after the fire, I am sure they will want to conduct a thorough investigation. They will send you the transcript of the statement Montague took from you the first day after the fire and will ask you to read it and sign it, they will want as much information as possible to verify the values of the property we are claiming, they will want receipts, invoices or other evidence of purchase and ownership.  Since you are Armenian, from Yerevan, they will believe it when you tell them you only pay cash.”

“Won’t they just take my word?”

“Only if they have no choice.”

“What do you mean?”

“Insurance companies are bound by an unwritten part of the insurance policy called the covenant of good faith and fair dealing. Here in California, and most of the U.S., the courts have told insurance companies that the covenant of good faith and fair dealing is implied in every policy of insurance and if they don’t act fairly they are punished severely with damages to punish them and make them treat others fairly.”

“What is a covenant?”

“Like in the Bible. God made a covenant with the Jews. If they cut off the tip of each male child’s penis, he would consider them his chosen people. A covenant is an agreement, a promise. The covenant of good faith and fair dealing is as strong in the law as the covenant God made with the Jews.”

“So, they must believe me.”

“Yes, unless they can prove that you lied, they must believe you.”

“If I have no receipts they must take my word.”

“Yes.”

“What a great country we have moved to.”

“Yes, Baron Levonyan, it is a wonderful country. You will find the fire costs you nothing, I will make a good profit, and you may even have enough extra to add an extra bathroom to the house.”

“I am very pleased. Do you need further assistance from me? My gas stations need my supervision.”

“No, Baron Levonyan, my staff and I can carry on from here. It will take us at least three days to finish the inventory. I will send the contractor to your station to get answers to his questions after he finishes his work here.”

“I will see you, in three days, then.”


© 2017 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness 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 49 years in the insurance business.

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

Check in on Zalma’s Insurance 101 – a Videoblog – that allows your people to learn about insurance in three to four minute increments at http://www.zalma.com/videoblog

Look to National Underwriter Company for the new Zalma Insurance Claims Library,  at www.nationalunderwriter.com/ZalmaLibrary  The new books are Insurance Law, Mold Claims Coverage Guide, Construction Defects Coverage Guide and Insurance Claims: A Comprehensive Guide

The American Bar Association, Tort & Insurance Practice Section has published Mr. Zalma’s book “The Insurance Fraud Deskbook” available at  http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=214624, or 800-285-2221 which is presently available and “Diminution of Value Damages” available at http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=203226972

Mr. Zalma’s three new e-books  were recently added and are available at http://www.zalma.com/zalmabooks.html

Mr. Zalma’s reports can be found on Tumbler at https://www.tumblr.com/search/zalma,  on Facebook at https://www.facebook.com/barry.zalma and you can follow him on Twitter at https://twitter.com/bzalma

Legal Disclaimer:

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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