The Rogak Report: 01 May 2007 ** Insurance Fraud - "Founded Belief" **
- View Source
INSURER'S "FOUNDED BELIEF" THAT CLAIM IS FRAUDULENT MAY BE BASED ON HEARSAY
Umed Med., P.C. Denise T. Reed, Alex Ponce and Jared L. Morris v.
State Farm Ins. Co., 2007 NYSlipOp 50892(U) (App Term, 2d Dept)
In the first decision of its kind, so far as I have seen, the
Appellate Term has relaxed the standard by which no-fault insurers
establish their "founded belief" that a claim is fraudulent.
In a string of earlier decisions, the Civil Courts have rejected
insurers' allegations of fraud when the investigator's testimony has
been based in part on unsworn statements from third parties (for
details, see my book, ROGAK'S NEW YORK NO-FAULT LAW & PRACTICE).
The same thing happened in the Civil Court, Queens County (Kevin
Kerrigan, J.), when that court granted summary judgment to the
plaintiff and rejected State Farm's proof of insurance fraud.
State Farm's "sole issue on this appeal is whether it raised a
triable issue of fact by proffering sufficient evidence in admissible
form to demonstrate a 'founded belief that the alleged injuries do
not arise out of an insured incident,' in that the automobile
accident at issue in said third cause of action was staged."
"Contrary to the determination of the court below," held the
Appellate Term in a 2-1 decision, "we find that defendant's
submission of a sworn affidavit of its special investigator was
sufficient to demonstrate such a 'founded belief' notwithstanding the
fact that the affidavit contained hearsay allegations."
As further detailed in the dissenting opinion, State Farm submitted
the affidavit of its investigator who asserted that the underlying
insurance policy was obtained through the unauthorized use of the
identity of Sophia Lowe-Davis. The investigator averred that Lowe-
Davis was the victim of identity theft as "confirmed by NYPD
Detective Reedy." No affidavits from either Detective Reedy or Lowe-
Davis accompanied State Farm's opposition papers, "nor is there any
explanation as to why they are not tendered."
The judgment in favor of plaintiff was reversed.
Comment: This decision finally acknowledges, as I argue in my book,
that as a practical matter it is often not possible for investigators
to document in "admissible form" the statements and evidence they
obtain during their investigations. However, the standard for
opposing summary judgment is to "raise" a triable issue of fact, not
necessarily "prove it." As the courts always say, on a summary
judgment motion "issue finding" and not "issue determination" is the
benchmark. An investigator's sworn affidavit indicating information
obtained from reasonably reliable sources (in this case, police
officers), certainly strike me as enough to "raise" an issue of fact
requiring a trial.
Buy the first complete guide to no-fault:
ROGAK'S NEW YORK NO-FAULT LAW & PRACTICE