Recent Publications - Evan H. Krinick


COVID-19 and the Explosive Rise of Unemployment Insurance Fraud
November 4, 2021 | Insurance Fraud

In mid-May, U.S. Attorney General Merrick Garland established the COVID-19 Fraud Enforcement Task Force. Attorney General Garland directed the task force to use the resources of the U.S. Department of Justice in partnership with agencies across government to enhance enforcement efforts against fraud related to the COVID-19 pandemic. Even by that time – more than

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Insurance Rulings, Present and Past, by a Court in Transition
August 23, 2021 | Insurance Coverage

The New York Court of Appeals’ past term was as unusual a term as practitioners and judges ever could have imagined. Of course, COVID-19 continued to affect the Court’s operations. On top of that, the early retirement of Judge Paul Feinman, followed by his untimely death, the subsequent retirement of Judge Leslie Stein, and the

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Compounding the Fraud: Questionable Billing by Pharmacies
July 6, 2021 | Insurance Fraud

As the COVID-19 pandemic was taking hold last April, the Manhattan U.S. Attorney filed a lawsuit against FPR Specialty Pharmacy LLC and Mead Square Pharmacy, Inc., and their owners, Christopher Casey and William Rue, alleging that they had submitted fraudulent claims for reimbursement to federal healthcare programs for compounded prescription drugs in violation of the

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False Claims Act Cases Poised to Jump Now and for Years to Come
March 4, 2021 | Insurance Fraud

The report detailing new filings and recoveries under the False Claims Act (FCA) during the 2020 fiscal year that was just released by the U.S. Department of Justice (DOJ) suggests, at first glance, a diminished role for one of the federal government’s strongest anti-fraud tools. Delving more deeply into the details, however, demonstrates the continuing

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A Divided Bench Revealed in Top Court’s Commercial Cases
February 23, 2021 | Appeals | Commercial Litigation

When discussing the U.S. Supreme Court, commentators spend considerable time reviewing the decisions of the Court to create “lineups” of conservative versus liberal Justices and to speculate which Justices, or group of Justices, are the deciding or so-called “swing” votes. In cases raising constitutional issues involving prominent social issues, legal philosophies can be observed that

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Insurance Law Appellate Case Analysis Reveals Important Trends
January 19, 2021 | Insurance Coverage

Rivkin Radler Managing Partner Evan Krinick recently published an article in various Mealey’s publications that analyzes the decisions and results of 25 years’ worth of insurance cases in the New York Court of Appeals. Here are some of the highlights:

  1. of the 187 insurance law cases decided by the Court, 161 were carrier v
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Municipal Fraud in Focus as Local Governments Face Budget Woes
December 31, 2020 | Insurance Fraud

Nearly a decade ago, in October 2011, Preet Bharara, then serving as U.S. Attorney for the Southern District of New York, announced pension disability fraud charges against a number of individuals associated with the Long Island Railroad (LIRR). The complaint estimated a potential loss to the Railroad Retirement Board of more than $1 billion in

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No-Fault Insurers May Obtain Non-Party Discovery in Fraud Cases
November 6, 2020 | Insurance Fraud

Fifteen years ago, the New York Court of Appeals ruled that a violation of a licensing requirement by a medical provider rendered the provider ineligible to be reimbursed by an insurance company for no-fault claims that had been assigned to the provider by an individual allegedly involved in an automobile accident. The court recognized that one

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Calculating Forfeiture Amounts to Withstand Eighth Amendment Challenges
September 3, 2020 | Insurance Coverage

Criminal defendants convicted of insurance fraud may challenge forfeiture amounts requested by prosecutors as excessive in violation of the Eighth Amendment to the U.S. Constitution. In recent years, various decisions by federal district courts in New York and the U.S. Court of Appeals for the Second Circuit have helped to explain the standard for calculating

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Court Covers Broad Range of Topics in Insurance Rulings
August 26, 2020 | Insurance Coverage

As unique as the past term of the New York Court of Appeals was – taking place in the midst of the COVID-19 pandemic, which led the Court to eliminate oral arguments in March, April, and May and to hear oral arguments in June via videoconferencing – there were some important similarities to prior terms.

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Government Officials, and Insurers, in Fight Against COVID-19 Fraud
July 10, 2020 | Insurance Coverage

There have been abundant opportunities for fraud since the beginning of the COVID-19 pandemic. News stories and legal proceedings have highlighted fraud relating to everything from loans under the Paycheck Protection Program (PPP) to mis-labeled and missing personal protective equipment (PPE). Insurers have seen their share of fraudulent or excessive claims as well.

Price Gouging

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Like Cloth Masks, Corporate Protections Are Not Absolute
July 9, 2020 | Corporate

We live in a different world than a few months ago. The existence of a pandemic in our community has impacted every aspect of our day-to-day life and has brought an unprecedented amount of uncertainty and anxiety as to the shape and tenor of our future experiences.

So, in order to enjoy some degree of

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Second Circuit Cases May Affect Insurers’ Ability To Fight No-Fault Fraud
March 6, 2020 | Insurance Fraud

A case that has been appealed to the U.S. Court of Appeals for the Second Circuit, and one that has just been argued in that court, have the potential to significantly affect the ability of insurance companies to fight no-fault insurance fraud in New York.

The defendants in Government Employees Ins. Co. v. Wellmart RX,

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Pay Notice to Special Relationships under the Law
March 3, 2020 | Commercial Litigation

With Valentine’s Day in our rear-view mirror, it is nice to reflect on the special relationships in our life – with our spouse, our parents, our children, and if one is lucky enough, with our grandchildren. These relationships provide meaning and perspective to our day-to-day existence and can provide immeasurable joy and happiness.

Special relationship

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In Football and Litigation, Avoid Self-Inflicted Wounds
February 5, 2020 | Commercial Litigation

Football is a game of statistics and more statistics, as any fantasy football fanatic can tell you. But if you want to predict which team will win, one statistic is particularly telling. In fact, from 2007 to 2016, the team that had the fewest turnovers in a game won 78 percent of the time. On the other

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In Business Deals, the Details Matter
January 7, 2020 | Commercial Litigation | Corporate

The “devil is in the details.”

How many times has that truism been proven true? Like when your high school child tells you that he and his friends are off to Mexico for spring break. Or when a travel agent lets you in on the deal of a lifetime for an all-inclusive cruise to a

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The Broad Reach of the Medicare Fraud Strike Forces
January 3, 2020 | Appeals

It has been over a decade since the U.S. Departments of Justice and Health and Human Services (HHS) jointly created the federal government’s first Medicare Fraud Strike Force (MFSF) in South Florida. Their goal was to reduce and prevent Medicare and Medicaid fraud through enhanced interagency cooperation. Since then, the program has grown to 15

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N.Y. Court of Appeals Poised To Resolve Split Over Bad Faith Suits Against Insurers
October 31, 2019 | Appeals

After hearing oral argument earlier this month in Haar v. Nationwide Mutual Fire Ins. Co., 32 N.Y.3d 1211 (2019), the New York Court of Appeals is set to decide an important issue of insurance law and statutory interpretation that has divided the Appellate Division Departments.

In Elkoulily v. New York State Catholic Heathplan, 153 A.D.3d

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Common sense is key to staving off fraud
October 16, 2019 | Appeals

Two truisms: 1) smart people do stupid things; and 2) if something seems to be too good to be true, then it is probably not real. The first truism occurs when people forget the second truism.

A persuasive salesperson, or a snappy marketing campaign, catches your attention. It sounds like something you have always wanted

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A Tale of Two States: Fighting No-Fault Insurance Fraud Under Unfair Business Practices Laws
September 6, 2019 | Insurance Fraud

Insurance fraud is not only a New York problem, or even solely a northeast concern. Insurance fraud is prevalent across the country. In particular, no-fault insurance fraud can be found in every state with a significant no-fault insurance program.

State legislatures have adopted a wide variety of statutes in an effort to protect consumers and

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Like true love, a general release lasts forever
August 26, 2019 | Appeals

Philosophically speaking, nothing lasts forever. Of course, romantics will tell you that true love lasts forever. In the world of litigation, the general release is the equivalent of true love – it never loses its power and force.

A general release is a document that frees a person or business from ever being sued about

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Court Issues Three Major Insurance Rulings, and Begins to Set the Stage for Next Term
August 19, 2019 | Insurance Coverage

The New York Court of Appeals decided three important insurance cases in its 2018-2019 term. Judge Rowan D. Wilson was the sole dissenter in the first two, with the Court reaching a unanimous decision in the third, and most significant, of the trio. The Court also began to arrange its insurance caseload for next term

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Late notice of a contract breach is a recipe for disaster
July 22, 2019 | Appeals

“Seinfeld” was a great television show, maybe the greatest of all time. I could make the case for “Taxi,” but I digress.  One of my favorite Seinfeld episodes is when Jerry makes a reservation for a car rental, only to get to the rental counter and find out that they have his reservation but do

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Court Boosts Insurers in Fight Against Non-Physician-Owned Medical Providers
July 8, 2019 | Insurance Coverage

Nearly 15 years ago, in State Farm Mutual Automobile Ins. Co. v. Mallela, 4 N.Y.3d 313 (2005), the New York Court of Appeals ruled that an insurer may withhold payment under New York’s no-fault law for medical services provided by a professional medical corporation based on its “willful and material failure to abide by” the

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An enforceable contract need not be in writing
June 24, 2019 | Appeals

Commentary:

Dustin and Brooks have owned a business together for years. They have no agreement. Dustin wants to retire and work on his golf handicap. Brooks wants to keep working and expand the business. They agree that Brooks will buy Dustin’s interest in the business.

They get together with Rory, the company accountant, and they

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Business mediation can avoid the grind of litigation
May 20, 2019 | Appeals

My friends who own boats often share with me the famous adage that the best two days of boat ownership are the day that the boat is purchased and the day the boat is sold. The joys of boat ownership are quickly subsumed by the day-to-day grind of maintenance and other aggravations that come with

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When it comes to attorneys on TV, it’s all fake news
May 6, 2019 | Appeals

Commentary:

Television shows about lawyers are entertaining. “Law and Order,” in all its iterations, was a staple in my house forever. More recently, “Suits” has become an obsession. People of a certain generation will remember “L.A. Law,” and even before that, “Perry Mason.” All of these shows have memorable characters, smart dialogue, dramatic moments and

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DFS Continues Long History of Strongly Supporting Anti-Fraud Reg
May 3, 2019 | Appeals

Nearly two decades ago, in 2001, New York state’s insurance regulator—then known as the New York State Insurance Department and now known as the New York State Department of Financial Services (DFS)—promulgated a powerful anti-fraud regulation. The regulation, 11 N.Y.C.R.R. §65-3.16(a)(12), was intended to require that a health care provider, as a condition of eligibility

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A privileged conversation is too important to throw away
April 8, 2019 | Appeals

Commentary:

Success in a litigation starts with a strong attorney-client relationship. The attorney and the client must work closely together to investigate and learn the operative facts, discern the best strategy to utilize those facts, adapt that strategy as new facts emerge and, as adversaries raise counter-arguments, and ultimately decide to settle or continue the

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In Business, Trust Your Family at Your Own Peril
March 7, 2019 | Commercial Litigation

Commentary:

Long Island has been my home for most of my life.

Here are a few of my favorite things about my hometown: beautiful beaches, great public education, fried clams, Billy Joel, the lunar module, four Stanley Cups, the Belmont Stakes and Bethpage Black.

Some of my not-so-favorite things: unbearable traffic, exorbitant property taxes and

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Rivkin Radler: The Value of Mentoring, Work Life Balance and Flexible Fees
March 7, 2019

Evan H. Krinick, the managing partner of Rivkin Radler, spoke to the New York Law Journal about the advantages and challenges of being a midsize firm in a supersized city. The firm has 190 attorneys and 172 staff members in Uniondale, New York City, Albany and Poughkeepsie. There is also an office in Hackensack, N.J.

“Working

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Choice of Law Can Be Key When Fighting Life Insurance Fraud
March 1, 2019 | Appeals

A stranger-originated life insurance (STOLI) policy is a life insurance policy obtained as an investment for a stranger, rather than for the benefit of the insured’s beneficiaries. Public policy disfavors STOLI policies because, among other things, legislators consider them to be wagers on human life. See, e.g., N.Y. Ins. Law §7815(c) (“No person shall directly

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Home Court Advantage Makes a Difference For Clients
February 12, 2019 | Appeals

Commentary:

Those who bet the spread in football games know that the being the home team is worth three or so points. Teams fight all year to have home field advantage in the playoffs.

In lawsuits, being the home team also matters. If you are going to be sued, or if you intend to bring

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The False Claims Act: A Powerful Tool Against Federal Health Care Program Fraud
January 4, 2019 | Appeals

The most recent report by the U.S. Department of Justice (DOJ) on its recoveries under the federal False Claims Act (FCA) (see “Fraud Statistics—Overview, October 1, 1986 – September 30, 2018”) made it quite clear that the federal government continues to seek to combat fraud by health care providers against federal health care programs such

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Insureds’ Materially False Statements Can Doom Insurance Coverage for Their Claims
November 2, 2018 | Appeals

There are many different kinds of insurance fraud, as this column regularly observes. There can be fraud contained in applications for insurance policies, fraudulently staged accidents, and fraudulent claims by health care providers treating injured policyholders, among other things.

Insurance policies try to eliminate, or at least to cut down on, insurance fraud in a

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Insurers Overcome Defendants’ Efforts to Delay or Avoid Judgment Day
September 6, 2018 | Appeals

As insurance companies continue to bring more and more civil suits for insurance fraud, defendants are raising a variety of arguments in an effort to delay—and sometimes to significantly delay—the insurers’ actions, or even to avoid judgment altogether. Two interesting new cases—one from the U.S. District Court for the Eastern District of New York, State

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So Far, No Consistent Lineup of Judges for Carriers or Policyholders
August 20, 2018 | Appeals

After a term of transition for the New York Court of Appeals—with Associate Judge Eugene F. Pigott, Jr., retiring at the end of 2016, Associate Judge Rowan D. Wilson joining in February 2017, Associate Judge Sheila Abdus-Salaam’s death in April 2017, and Associate Judge Paul G. Feinman joining at the end of June 2017—the 2017-2018 term

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Health Insurance Fraud: A Key Focus of State and Federal Prosecutors
July 6, 2018 | Appeals

Health insurance fraud continues to be a problem in New York as well as nationally. Nothing may illustrate this better than two recent reports, one issued by New York’s Department of Financial Services (DFS) and the other issued jointly by the U.S. Department of Justice (DOJ) and the U.S. Department of Health and Human Services

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Credit Card Fraud Insurance Case Highlights Barriers to Suits Against Brokers
May 4, 2018 | Appeals

Four years ago, the New York Court of Appeals issued its decision in Voss v. Netherlands Ins. Co., 22 N.Y.3d 728 (2014), which some thought might lead to more and more insurance brokers being sued by policyholders alleging that brokers had not obtained sufficient insurance or appropriate policies for them.

Several recent cases—including by the U.S.

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Failure to Cooperate in Suspected Fraud Case Can Doom Insured’s Claim
March 1, 2018 | Appeals

After a policyholder submits a claim to an insurance company, the insurer investigates to determine whether to pay the claim, as the insurer is permitted to do under its insurance policy. On occasion, after an insurer has begun to investigate a claim, it may come to believe that the claim is fraudulent, or at least

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A Warning Signal for Auto Insurers From the Second Circuit
January 4, 2018 | Appeals

Twenty-five years ago, in Riordan v. Nationwide Mutual Fire Ins. Co., 977 F.2d 47 (2d Cir. 1992), the U.S. Court of Appeals for the Second Circuit ruled that New York General Business Law §349—one of the most powerful consumer fraud provisions of New York law—was applicable to insurance companies’ interactions with policyholders. In Riordan, the

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Appellate Term Split on Payment of Disputed No-Fault Claims
November 2, 2017 | Insurance Coverage

Unless resolved by the Appellate Division or by the New York Court of Appeals, or clarified by the legislature or the Department of Financial Services, the Appellate Term split will make it difficult for automobile insurers to accurately calculate premium rates for no-fault coverage or to know which claims of health care providers they should

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Diverse Legal Issues Can Arise in Insurance Fraud Prosecutions
August 31, 2017 | Insurance Coverage

Even clear proof of a false claim and a criminal defendant’s guilt does not necessarily mean that a criminal insurance fraud case will proceed uneventfully to a conviction, or withstand a defendant’s appeal. In some instances, a defendant who has filed a false claim with intent to defraud an insurance company will file a motion

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In Term of Transition, Court Sides With Insurers
August 21, 2017 | Insurance Coverage

The one thing that can be said about the most significant insurance law cases decided by the Court this past term: They all were decided in favor of the insurance carriers.

It was a term of transition for the New York Court of Appeals, with Associate Judge Eugene Pigott Jr., retiring at the end of

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Landmark N.J. Supreme Court Ruling Boosts Fraud Fight
July 7, 2017

There seems to be no limit to the kinds of schemes that people create to defraud insurance companies and, by extension, the public, through higher premiums. Now, however, the New Jersey Supreme Court has issued a unanimous decision, Allstate Ins. Co. v. Northfield Medical Center, P.C., No. A-27 (N.J. May 4, 2017), that certainly will

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Rulings Obtained by Preet Bharara Highlighted Insurance Fraud Problem
May 4, 2017 | Appeals

Over nearly eight years as U.S. Attorney for the Southern District of New York, Preet Bharara became recognized as a powerful prosecutor in many areas, including government corruption and white-collar crime. Another subject for which he certainly deserves mention is his strong record helping to fight insurance fraud in New York.

Much can be learned

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Social Media Is Shining Light on Fraudulent Insurance Claims
March 6, 2017 | Appeals

My January column, “Insurers Using Technology to Fight Insurance Fraud,” N.Y.L.J. Jan. 5, 2017, discussed various new forms of technology that insurance companies are using to fight insurance fraud.

These efforts are producing results for insurers—and, in appropriate instances, for federal, state, and local prosecutors—in the battle against insurance fraud. This month’s column highlights a

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Insurers Using Technology to Fight Insurance Fraud
January 5, 2017 | Appeals

Insurance fraud has been estimated by some to be as large as an $80-billion-per-year problem. See, e.g., Coalition Against Insurance Fraud, “By the numbers: fraud statistics.”1 To fight insurance fraud, insurance companies, working hand-in-hand with their lawyers, have begun to adopt new kinds of technology. These tools—ranging from social media to data analytics—are being used

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Whistleblowers Play Key Role in Fight Against Federal Health Insurance Fraud
November 4, 2016 | Appeals

The federal False Claims Act (FCA)1 is a powerful tool in the fight against fraud involving federal health insurance programs such as Medicare and Medicaid. Indeed, one of the greatest areas of FCA success is in the health-care industry. From 1987 to 2015, the federal government recovered more than $31.1 billion in health-care-related FCA actions.2

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Ruling Boosts Fight Against Criminal and Civil No-Fault Fraud
September 2, 2016 | Appeals

In a civil case involving claims of insurance fraud, the fact-finder is properly instructed to consider factors beyond the formal indicia of ownership in determining the actual ownership of a medical services professional corporation (PC) for purposes of examining the PC’s entitlement to payment from an insurance carrier of claims assigned to the PC by

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Six Rulings Range From Asbestos Claims to No-Fault Reimbursement
August 22, 2016 | Appeals

The six significant insurance law decisions issued this past term by the New York Court of Appeals covered a wide range of issues. Five of the cases were decided by a unanimous Court, with a dissent (by Judge Eugene M. Fahey) occurring only in one.1 Four different judges wrote an opinion for the Court (Judge

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When Can a State Prosecute a Multistate Insurance Fraud?
July 8, 2016 | Appeals

Recent examples of criminal insurance fraud in New York1 and elsewhere across the country2 highlight the continuing nature of the insurance fraud problem, despite significant efforts by local and state prosecutors and insurance companies themselves to combat it.

Increasing sophistication on the part of criminals, and increased resources available to them, is helping to make

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Unusual Finding of “Rehabilitation” After Insurance Fraud Sentence
May 6, 2016 | Appeals

Individuals and businesses engaging in insurance fraud can face significant civil penalties under various state and federal laws, including in appropriate cases under the federal Racketeer Influenced and Corrupt Organizations Act. The financial penalties that can result, however, may not truly be a deterrent for judgment-proof defendants.

Criminal laws—with the possibility of prison time—clearly can

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Not Answering Material Questions at EUOs Can Doom Coverage
March 4, 2016 | Appeals | Insurance Coverage

Examinations under oath (EUOs) are an important investigative tool used by insurance carriers to uncover fraudulently filed claims and to commit claimants to their story on the record. EUOs look like depositions but generally do not follow the rules that govern depositions. For example, a witness who refuses to answer questions at a deposition can

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N.J. Supreme Court to Decide Breadth of Insurance Fraud Act
January 8, 2016 | Appeals

The New Jersey Supreme Court has agreed to hear Allstate Ins. Co. v. Northfield Medical Center,1 which has consequences for insurers across the country seeking to deter insurance fraud schemes intended to avoid the prohibition on the corporate practice of medicine. The issue before the court is whether a health-care lawyer (who was not admitted

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Sentencing and Restitution Awards in Insurance Fraud Cases
November 6, 2015 | Appeals

As this column regularly observes, insurance companies frequently use civil litigation as a tool to fight insurance fraud,1 including fraud involving life insurance policies.2 Insurance fraud, of course, also is a crime,3 and prosecutors often bring criminal actions against those who commit insurance fraud.

Generally speaking, a person convicted of insurance fraud faces a potential

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Denying Coverage Where Fraud Occurred
September 4, 2015

More than 30 years ago, in 1984, a divided New York Court of Appeals decided in Barker v. Kallash that a person who committed an illegal act of a serious nature should not be able to profit from that wrongdoing.1 By 1997, the court, in Manning v. Brown, seemed to have no doubt about this

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Dissenting Opinions Highlight Split Among Exiting Judges
August 24, 2015

The Court of Appeals issued seven principal insurance law decisions this past term.1 Four decisions affirmed the rulings below, two reversed, and one modified. Five were in favor of insurance companies and two in favor of policyholders. Two of the seven were unanimous, one was decided by a vote of four-to-one, and four had at

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Court of Appeals Continues To Extend No-Fault ‘Preclusion’ Rule
July 2, 2015

A decision issued by the New York Court of Appeals early in June extends application of the court-created “preclusion” rule in no-fault insurance cases, which provides that an insurer’s failure to timely pay or deny a claim results in an insurer being precluded from interposing a defense against payment of the claim, except where the

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When Licensed Professionals Commit Insurance Fraud
May 1, 2015

Insurance fraud is committed not only by people who set fire to their homes for the insurance money or who lie about “missing” property that was in their “stolen” cars. Doctors and lawyers?licensed professionals?also commit insurance fraud. They risk the usual penalties, including potential jail time, as well as the loss of their ability to

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Challenging Fraud by Employers in Workers’ Compensation
March 6, 2015 | Appeals | Insurance Coverage

Workers’ Compensation insurance carriers face a variety of employer schemes intended to defraud them out of insurance premiums in one way or another. After briefly discussing the requirements of New York’s Workers’ Compensation Law (WCL), this column explores some of the methods disreputable companies sometimes use to avoid their obligations. It concludes with a discussion

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N.J. Supreme Court to Decide Breadth of Insurance Fraud Act
January 11, 2015 | Appeals | Commercial Litigation | Insurance Coverage | Insurance Fraud

The New Jersey Supreme Court has agreed to hear Allstate Ins. Co. v. Northfield Medical Center,1 which has consequences for insurers across the country seeking to deter insurance fraud schemes intended to avoid the prohibition on the corporate practice of medicine. The issue before the court is whether a health-care lawyer (who was not admitted

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ERISA and Insurer Fraud Suits Against Health Care Providers
January 5, 2015 | Appeals | Insurance Coverage

One of the significant legal issues facing an insurance company that brings a  federal lawsuit to recover allegedly improper payments that it has made to a  health care provider under an employee benefit plan is whether the carrier’s  complaint is preempted by the federal Employee Retirement Income Security Act of  1974 (ERISA). A finding of

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Opinions by Graffeo and Smith Highlight Insurance Law Developments
November 30, 2014 | Insurance Coverage

It is not often that two judges on the New York Court of Appeals leave the  court at the same time, as is occurring now with Judge Victoria A. Graffeo  (whose 14-year term is coming to a close) and Judge Robert S. Smith (who has  reached the retirement age of 70). Both judges have made

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State Legislatures Tackle Insurance Fraud
November 7, 2014 | Appeals | Insurance Coverage

In an effort to combat insurance fraud, state legislatures across the country have passed a wide variety of bills this year that their governors have signed into law. While many other bills failed to make it to a governor’s desk for one reason or another, some that have been introduced may yet become law.

Despite

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Second Circuit Seeks Guidance On NYC Regulation of Law Firms
October 30, 2014 | Appeals

Max Gershenoff is quoted in a Bloomberg BNA Banking Daily Bulletin article entitled, “Second Circuit Seeks Guidance On NYC Regulation of Law Firms.”  The law firms referred to in the article were represented by Mr. Gershenoff, Evan Krinick and Michael Versichelli.

Please click the link below to view the Article. Adobe Reader is required to view

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Courts Permit Mallela Claims against “Article 28” Facilities
September 5, 2014 | Appeals | Insurance Coverage

It has been nearly a decade since the New York Court of Appeals ruled, in State Farm v. Mallela,[1] that a medical corporation was not entitled to be reimbursed by insurance companies under New York’s no-fault law and its implementing regulations[2] for medical services rendered by licensed medical practitioners where the medical corporation failed to

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Among Significant Decisions, Court Vacates Prior Breach of Duty to Defend Ruling
August 25, 2014 | Appeals | Insurance Coverage

Insurance law is surely an area of the civil law that occupies more than its fair share of the docket of the New York Court of Appeals.  This past term, the Court issued nine significant insurance law decisions, including one for which it heard reargument and vacated a unanimous – and highly controversial – ruling

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Arbitration or Litigation of No-Fault Insurance Disputes: The Second Circuit Speaks
July 7, 2014 | Appeals | Insurance Coverage

Insurance companies in New York continue to expend considerable time and effort to fight no-fault automobile insurance fraud. Toward that end, one of the most effective tools is the filing of lawsuits in federal court against health care providers who have received payment for services they contend they have provided to injured policyholders. As has

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Grand Jury Recommends Four Steps to Cut Workers’ Comp Fraud
May 2, 2014 | Appeals | Insurance Coverage

Employers, employees, taxpayers, and insurance carriers all are heavily burdened by the costs of Worker’s Compensation insurance fraud in New York and in the rest of the tri-state area. As just one example, consider what Charles Kelcy Pegler Sr. admitted to in a guilty plea entered just days ago in a New Jersey state court.

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Restitution to Insurance Carriers: The New York Rule
March 7, 2014 | Appeals | Insurance Coverage

Several years ago, police investigators in California found a number of stolen vehicles, including some that were being dismantled, on Julio Valdes’ property.  He later pled no contest to owning and operating a chop shop and was sentenced to two years and four months in prison. The trial court then set a victim restitution hearing.

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Cases Across the Country: Small, Big, and In Between
January 3, 2014 | Appeals | Insurance Coverage

The legal issues governing insurance fraud that are discussed in this column typically focus on New York law or on federal law and its application to New York cases. The world of insurance fraud is quite extensive, however, as illustrated by recent insurance frauds alleged or uncovered from across the country – including some unusual,

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The Case for Allowing Insurers to Recover Attorneys’ Fees in Fraud Suits
November 1, 2013 | Appeals | Insurance Coverage

AMERICAN BAR ASSOCIATION – MASS TORTS & DEVELOPMENTS

After an employee of Glasbern Inc. was injured, the company’s Workers’ Compensation insurer, Zenith Insurance Company, began paying Workers’ Compensation benefits to him. Thereafter, Zenith sued Glasbern, Glasbern’s owner, Albert Granger, and its insurance broker, alleging that it only had issued and renewed the policy as a

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Growing Role of Discovery in Providers’ Cases Seeking No-Fault Benefits
September 6, 2013 | Appeals | Insurance Coverage

In recent years, more and more no-fault[1] insurance carriers and health care providers have become parties to an escalating battle over providers’ requests to obtain payment from no-fault insurers for care the providers allegedly provided to injured people (so-called “assigned first-party no-fault benefits”). At the heart of the dispute is State Farm Mutual Automobile Ins.

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Breach of Duty to Defend Stands Out Among Noteworthy Issues
August 26, 2013 | Appeals | Insurance Coverage

The past term’s significant insurance law decisions by the New York Court of Appeals resolved a variety of issues that will alter the practice of insurance law in important ways. Among the most notable of these decisions was K2 Investment Group, LLC v. American Guarantee & Liability Ins. Co.,[1] where the court evaluated the consequences to

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Statute and Common Law Provide Immunity for Insurers Reporting Fraud
July 5, 2013 | Appeals | Insurance Coverage

After a fire damaged a house in Wilson, North Carolina, that was owned by Cully’s Motorcross Park, Inc., its president and sole stockholder, Laurie Volpe, submitted a claim to North Carolina Farm Bureau Mutual Insurance Company, the insurer for Cully’s. Farm Bureau began an investigation and ultimately denied the claim, citing its suspicion that the

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Court Validates Another Tool for Insurers in Fight against No-Fault Fraud
May 3, 2013 | Appeals | Insurance Coverage

Over a decade ago, in an effort to reduce no-fault insurance fraud involving the improper ownership or licensing of medical providers, the New York State Insurance Department (the precursor to the New York State Department of Financial Services (“DFS”)), adopted a regulation that declared that a health care services provider was eligible for reimbursement from

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Proposed Legislation Would Help Fight No-Fault Insurance Fraud
March 1, 2013 | Appeals | Insurance Coverage

No-fault insurance fraud continues to plague New York, with estimates of its cost to consumers and insurance carriers reaching hundreds of millions of dollars.[1] The growing wave of fraud persists notwithstanding efforts by federal and state prosecutors to bring criminal actions seeking to punish alleged fraud[2] – and despite guilty pleas in some of these actions.[3] 

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Regulation Barring Health Care Providers From No-Fault Program
November 2, 2012 | Appeals | Insurance Coverage

The Superintendent of the New York Department of Financial Services, Benjamin Lawsky, has issued an emergency regulation that may make it easier to bar health care providers ? temporarily and permanently ? who are suspected of engaging in no-fault insurance fraud from demanding payments from insurance carriers for services they claim to have provided. If

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From Common to Convoluted, Cases Demonstrate Range of Fraud
September 6, 2012 | Appeals | Insurance Coverage

This column typically focuses on insurance fraud trends, developments, and cases from New York.  Insurance fraud, however, goes well beyond this geographical area, and sometimes involves unusual, even bizarre, facts.  Locally, Nassau County District Attorney Kathleen Rice recently brought charges against Raymond Rother for allegedly conspiring with his son to fake his own drowning death

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Unanimity, for the Most Part, In Broad Variety of Insurance Rulings
August 27, 2012 | Appeals | Insurance Coverage

The past term’s insurance law decisions by the Court of Appeals generally did not involve the rather traditional slew of insurance coverage, insurance bad faith, and insurance fraud rulings that usually comprise the Court’s insurance law docket. The opinions, however, are by no means any less significant, or less interesting. Mostly rendered by a unanimous

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ERISA Preemption Rejected in Insurers’ Claims against Health Care Providers
July 6, 2012 | Appeals | Insurance Coverage

Insurance carriers that provide health care coverage in New York (and in other states) typically have developed comprehensive anti-fraud plans that help them identify and investigate insurance fraud. An important tool in these anti-fraud plans is post-payment reviews of claims submitted by health care providers. When insurance carriers detect fraud, and when they are unable

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Anatomy of Massive No-Fault Insurance Fraud Alleged by Government
May 4, 2012 | Appeals | Insurance Coverage

As has been highlighted in this column on a number of occasions,[1] insurance fraud in connection with New York’s no-fault automobile insurance law[2] is a tremendously large problem that affects both automobile insurance companies and policyholders, leading to millions of dollars in losses and increased premiums. In an effort to combat no-fault insurance fraud, insurance

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Courts Weigh Arbitration of No-Fault Claims
March 2, 2012 | Appeals | Insurance Coverage

More and more automobile insurance companies seek to combat no-fault insurance fraud by suing health care providers and others for fraudulently obtaining or seeking to obtain benefits[1] under New York’s no-fault law.[2] These lawsuits often combine claims to recover monies paid to the providers with a declaratory judgment action as to claims denied and/or not yet

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The Power of Policy Rescission as a Tool to Combat Fraud
January 6, 2012 | Appeals | Insurance Coverage

Rescission of an insurance policy based on a policyholder’s material misrepresentations during the application process is one of the most potent weapons that an insurance company has to combat insurance fraud. A proper rescission not only results in a denial of a particular claim, but voids the policy. 

On a national basis, insurance companies’ interest

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Are Statutory Changes To No-Fault Law on the Horizon?
November 4, 2011 | Appeals | Insurance Coverage

As this column has frequently observed, insurance fraud in the no-fault arena often leads to litigation and court decisions in both civil suits and criminal cases. Those judicial opinions, to one extent or another, affect the ability of insurance companies to combat fraud by challenging no-fault claims they believe are fraudulent as well as the

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Should Premiums Be Returned When Policies Are Obtained by Fraud?
September 2, 2011 | Appeals | Insurance Coverage

In 2004, the American Institute of Certified Public Accountants (“AICPA”) and Prudential Insurance Company of America entered into a group insurance contract through which AICPA members could obtain life insurance on the lives of their dependents. Pursuant to this arrangement, an application was filed with Prudential in the spring of 2004 for life insurance on

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Decisions Reflect Significance Of Insurance Law Across New York
August 22, 2011 | Appeals | Insurance Coverage

The New York Court of Appeals’ nine significant insurance law rulings last term displayed no discernible theme, evidenced no apparent trend, and reflected no obvious insurance law philosophy. Policyholders were victorious in some of the cases and insurance companies in others – and creditors in another.

The principal cases involved statutory construction, [1] policy construction,

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Wave of Civil Claims Being Asserted by Insurers Against Alleged Fraud
July 1, 2011 | Appeals | Insurance Coverage

Insurance fraud is not just a New York problem, it is a national problem. While this column generally focuses on trends in New York, it can be helpful on occasion to review conduct from across the country. Such a national review reveals that insurance carriers are taking an aggressive stance against insurance fraud and are

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Criminal and Administrative Insurance Fraud Cases in the Courts
May 6, 2011 | Appeals | Insurance Coverage

State and federal courts in New York have recently issued a number of significant decisions in cases involving allegations of insurance fraud in the criminal and administrative arenas. The results were decidedly mixed for the government.[1] However, the fact that there have been so many important cases in the courts, together with at least one

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“Prior Knowledge” Exclusion, Law Firm Coverage and Client Fraud
March 4, 2011 | Appeals | Insurance Coverage

Issues of fraud arise in numerous contexts in the insurance industry.  Not only are questions of fraud often relevant to determining the validity of claims, they also arise in determining if a claim was timely disclosed at the inception of the insuring relationship. 

Professional liability insurance policies purchased by lawyers and other professionals typically contain

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Update on Key Issues From 2010
January 7, 2011 | Appeals | Insurance Coverage

The beginning of the new year seems an appropriate time to update some of the insurance fraud issues discussed in this column over the past year.

As noted here last January, the Court of Appeals decision in State Farm Mutual Auto. Ins. Co. v. Mallela established that a violation of a licensing requirement by a

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Court Dismisses Class Action Challenging Automobile Insurer’s Specification of ‘Non-OEM’ Crash Parts In Repair Estimates
December 31, 2010 | Appeals | Insurance Coverage

Patchen v. Government Employees Insurance Company, U.S. District Court, Eastern District of New York

On January 7, 2011, United States District Court Judge Arthur Spatt granted GEICO’s motion to dismiss plaintiffs’ Complaint. Rivkin Radler attorneys Evan H. Krinick, Michael P. Versichelli and Michael P. Welch represented GEICO. The case presented an important issue that has

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Fraud Claims Over Stranger-Originated Life Insurance Hit the Courts
November 5, 2010 | Appeals | Insurance Coverage

Stranger-originated life insurance (“STOLI”) policies have emerged in large numbers over the last decade and now comprise a growing segment of the insurance market. In a typical STOLI arrangement, speculators collaborate with an individual to obtain a life insurance policy in the name of that individual, and then sell some or all of the death

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It’s Time to End the 30-Day Preclusion Rule
September 3, 2010 | Appeals | Insurance Coverage

Several weeks ago, New York County Civil Court Judge Arthur F. Engoron issued a decision in Quality Psychological Services PC v. GEICO Ins. Co.,[1] a case involving multiple actions filed by a medical provider seeking payment of bills it had sent to an insurance carrier for psychological services allegedly rendered to the plaintiff’s assignors, who

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Government, Private Parties Focus on Stopping Health Care Fraud
July 2, 2010 | Appeals | Insurance Coverage

In mid-June, the U.S. Attorney for the Eastern District of New York, Loretta E. Lynch, announced four separate indictments charging 17 individuals for their participation in an alleged health care fraud scheme. In addition, federal agents searched offices of 12 durable medical equipment retail companies located in South Brooklyn that were operated by the defendants

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Legislative And Regulatory Changes To Combat Rise In No-Fault Fraud
May 7, 2010 | Appeals | Insurance Coverage

Insurance fraud continues to increase in New York,[1] and one area that is growing with particular vigor is no-fault insurance fraud. In response to the rise in no-fault fraud, the state Legislature is considering new legislation, and the New York State Department of Insurance is actively engaged in potentially substantial modifications to the regulations that

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Fierce Litigation Battles Over Range of ‘Mallela’ Issues
March 5, 2010 | Appeals | Employment & Labor | Insurance Coverage

In State Farm Mutual Auto. Ins. Co. v. Mallela,[1] the New York Court of Appeals held that an insurer may withhold payment for medical services provided by “fraudulently incorporated” enterprises to which patients had assigned their no fault claims. As indicated in the Insurance Fraud column published here in January,[2] that ruling (in which the

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Five Years Later, Issues From Mallela Continue To Be Litigated
January 8, 2010 | Appeals

It has been almost exactly five years since the New York Court of Appeals issued its decision in State Farm Mutual Auto. Ins. Co. v. Mallela,[1] establishing that a violation of a licensing requirement by a medical provider renders the provider ineligible to be reimbursed by an insurance company for no fault[2] claims that have

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