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usa-dollar-bills-1431130-m.jpgIf anyone wants to know how prevalent Insurance Fraud is, all they have to do is take a look at the recent arrests and convictions for it in New York, as reported by the state. Nothing much has changed since the last time we looked at them. Some schemes are dangerous; some are complex; some are straightforward; and some, simply, are silly. That people will go to great lengths to steal money is no surprise; it’s always been that way. The really surprising thing is that people think they can get away with some of this; greed doesn’t just cloud good judgement, it can blind it. Insurance Fraud Investigators, however, can use these examples to learn how to better spot Insurance Fraud and, maybe, carriers can use them to better learn how to prevent it.

One of the most dangerous, and hard to prove, Insurance Fraud schemes is back in the news. Eight people were arrested in May 2013, for their alleged involvement in staged accidents, where they allegedly caused accidents for money. Their idea was simple: rent U-Haul trucks and either intentionally strike another car or have another car strike them. The only saving grace was that, reportedly, the only people they hit, or that hit them, were co-conspirators. Many times unsuspecting people are targeted; cars will stop short in front of them or fail to stop behind them. Here, apparently, no innocent victims were involved, just paid participants.

The 8 people arrested allegedly made more than $2 million of claims, to recover for phony injuries, to insurers, including U-Haul’s insurer; the insurers paid out more than $1 million for treatment of non-existing injuries. As always, it looks like it took a lot of work to crack the scheme and bring the charges; fitting the pieces together, connecting the various people and accidents, through the car registrations, rental records, medical providers, and insurance companies, is no easy task. The fact that the claimants used rental vehicles with the rental company’s insurance, rather than their own, probably made it even more difficult. The large number of agencies involved in the investigation shows just how hard it is to uncover this type of fraud. The arrests were the result of a joint investigation by the U.S. Attorney for the Eastern District of New York, the New York City Police Department, the United States Postal Inspection Service, and the New York Insurance Frauds Bureau.

One of the most straightforward types of Insurance Fraud is also perhaps one of the least well thought out. A New York City Transit worker was arrested in May 2013 because he allegedly faked a disability. He was hurt in a car accident in February 2011 and claimed he couldn’t work until May 2012. It seems that if he couldn’t work he had a credit disability insurance policy that would pay his loans. Evidently the policy did what it was supposed to: it made $4,335.50 of loan payments for him. The only problem was that he allegedly did work, and worse, there were records of it. He evidently forgot that there was a record of every time he got paid for being a subway conductor, and those same records showed that he worked when he said he couldn’t. The investigator remembered, though, and the conductor was arrested. Paper trails and fraud do not mix.

Sometimes, even when you alter the records, you still get caught. A man was arrested in May 2013 after he submitted nine claims to recover medical benefits for services he said he received at four different hospitals. He even submitted statements from the hospitals showing they performed, and charged him for, the services. The statements were legitimate, at least when he first received them back in 2005. The only problem was that he tried to pass them off as being recent, and allegedly altered the documents in order to do it. Evidently the investigator from the Insurance Frauds Bureau didn’t accept the documents at face value, did a little legwork, and discovered they were phony. After all, the hospitals probably had the original billing statements or at least records of the original treatment. Sometimes all you have to do is remember to ask. Good record keeping is always difficult to get around.
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1424855_wave.jpgEveryone knows the devastation caused by Hurricane Sandy: property destroyed; power lost; lives disrupted. No one expected it, but everyone has to live with it. Insurance is supposed to help put the pieces back together. But who’s responsible when the insurance you have isn’t the insurance you need? Nothing good happens when businesses close and homeowners can’t rebuild because they don’t have the right kind, or the correct amount, of insurance. When that occurs, who’s liable for such a big mistake? You might think it’s the insurance broker or agent but, more often than not, it’s the insured.

Recently, a Glen Cove, New York restaurant, The Water’s Edge, sued its insurance broker, B&G Group, Inc. for allegedly getting it the wrong coverage, from the wrong company, in the wrong amounts. According to an article in Newsday, the restaurant closed down on the day of the Storm, October 29, 2012. It didn’t have power for 14 days, couldn’t maintain its refrigeration system, had to dispose of the spoiled food, and only reopened in late May of this year. It claims that it lost $115,000 in spoiled food and suffered $250,000 in lost business income. The problem, evidently, is that it received only $5,000 for covered losses under its insurance policy, when it thought it would receive, and obviously needed, much, much more.

The Water’s Edge, which opened only last summer, according to news reports, obtained an insurance policy from Lloyd’s of London and used an insurance broker, B&G Group Inc., to get it. The Water’s Edge allegedly paid the policy premiums to B&G but B&G failed to pay the premiums to Lloyd’s of London and, as a result, the policy was canceled. B&G allegedly replaced the canceled Lloyd’s policy with another, presumably with different terms and coverage limits, but never informed the restaurant of the changes. The Lloyd’s policy allegedly had coverage limits of $500,000 for both the loss of the food and for business interruption, but the most the restaurant could recover under the replacement policy evidently was much less. When the loss was adjusted, and the payment turned out to be so small, the restaurant sued the broker to make up the difference.

Importantly, the Water’s Edge, based on the news reports, did not sue its insurer. This probably means it received everything it was entitled to under the replacement policy. There also is no allegation that Lloyd’s wrongfully terminated the original policy. With these two avenues closed, there was only one other place to turn: its insurance broker.

If the allegations are true, and right now we don’t know if they are, the restaurant has a good chance of recovering at least some of its losses. It will have to show that the only reason the Lloyd’s of London policy was not in effect was because of the broker’s mistake. It then could be entitled to recover only the difference between what it received under the replacement policy and what it would have recovered under the Lloyd’s of London policy. The broker will be able to challenge the claimed coverage and damages because it will stand in the insurer’s shoes; i.e., if the insurer would have had to pay, then the broker will have to pay. Soho Generation of New York, Inc. v. Tri-City Ins. Brokers, Inc., 256 A.D.2d 229, 231-32, 683 N.Y.S.2d 31, 34 (1st Dept. 1998).

Normally, though, it is not so easy to recover from an insurance agent or broker when the insurance turns out to be different than the insured thought it was before the loss. To know why, you have to understand what an insurance agent’s duties are.
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1339518_rhondda-valley.jpgWe’ve previously talked about how technology can be used in fraud investigations; basically, it can help investigators pay attention to the important things. The trick is learning, and keeping up with, what is important. A good tool for doing this is text mining. By taking advantage of a computer’s ability to “read” many more pages of text than a human ever could hope to, in a fraction of the time, and to draw patterns and other relevant information from all of that “reading,” text mining can point an investigator in the right direction by letting her know what warning signs to look for and address. Turning words in free-flowing narratives, emails, statements, and notes into useful facts that can be studied and analyzed, text mining can, and should, help any investigator.

There are four different parts of the text mining process, each of which is as essential as the other:

1. Information Retrieval Systems: These weed out irrelevant documents in order to concentrate on the ones that are more likely to get you the answers you are looking for. Say you’re looking for the best attorney to help you buy a house; chances are you’d be smart to look for ones who have “real estate,” “houses,” or “homes” somewhere in the description of their practice. This won’t necessarily get you the attorney you want, but it will make your search a whole lot easier. This is what information retrieval systems do.

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1390187_earpieces_.jpgWhen you are investigating insurance fraud, what is technology really good for? The answer may surprise you: Listening.

Listening: Everyone knows what it is. Everyone knows how to do it. And everyone believes they do it well. Whether it’s investigating insurance fraud, negotiating a business deal, or trying a case, it’s perhaps the single most important skill you need in order to succeed. Whether it’s the company rep you’re negotiating with or the witness you’re interviewing, you will always have a better chance to succeed if you actually listen to them.

Listening is really just paying attention; to the person you are talking to; to what she’s saying; doing; to what she really means. Often, like the pages of a good book, you have to dig beneath the surface to get the true meaning. Standing alone, her words may say one thing; when they are put with everything she’s said before, they may mean something else; and when combined with her actions, her words will often mean something completely different. If you only hear her words, you’ll never know what she is trying to say. If you listen to her and pay attention to all the important details, then you’ll understand.

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827419_fongrafo.jpgTechnology is not the only thing you need to investigate insurance fraud. Technology might tell you who to question, but someone still has to do the questioning. Analysis of big data might give you a lot to talk about, but someone, preferably with a little training and experience, is going to have to have that conversation. Technology might be able to sort through a tremendous amount of otherwise indecipherable data in order to identify, or obtain, clues about possible fraud. No matter how good the technology, no matter how vast the meta-data, no matter how many computers parse the data, a skilled investigator still has to connect the dots, and, eventually, a lawyer still has to convince a jury that those dots create a clear, unmistakable picture of fraud.

The interview, where one real person talks to another, is necessary in all fact-finding, whether it be a fraud investigation, a deposition in litigation, or a criminal prosecution. How to obtain information from people, however, is an art, not a science. There might be rules to follow and methods to learn but, by themselves, they are not enough.

An article in the June 1-2, 2013 Weekend Edition of the Wall Street Journal points out the art, and skill, involved in obtaining information from people who may be reluctant to provide it. The author, Jason Matthews, is an ex-CIA agent with more than 30 years of experience, who worked in what now is known as the National Clandestine Service. He talks about what it takes to convince people to spy against their own country. The key, he argues, is to find out what motivates a person. He describes four basic motivational factors, common to all people, that he used. Known by the acronym MICE, they are: money, ideology, conscience, and ego. According to the author:

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832750_mask_1.jpgThere has been a lot of discussion recently about the advantages of technology when it comes to fighting fraud in general and insurance fraud in particular. The analysis of large amounts of digital information in a relatively short time can lead to better, more informed, decisions by businesses large and small, and provide a better means to ascertain, and prevent, fraudulent behavior. The increased use of digital information leaves a bigger trail. Social media, emails, digital photos, all leave noticeable footprints with more information than the creator may know, or may have intended. It can be used to track fraud, but it also can be used to track the tracker.

There were two recently published articles that relate to this problem; one from a business, and one from a scientific, point of view.

The first article, published in the June 1-2 Weekend Edition of the Wall Street Journal and written by Justin Baer, William Launder, and Matthias Rieker, concerned the dispute Goldman Sachs Group Inc. and J.P. Morgan Chase & Co., have had with Bloomberg LP over the sharing of customer data. Both Goldman Sachs and J.P. Morgan Chase subscribe to Bloomberg’s financial terminals, found on trading floors, which provide real-time financial data and analytical tools, as well as news and a messaging function that allows traders to chat in real-time with other traders logged onto the terminals. According to the article, Bloomberg allowed reporters in its news division to access the subscriber usage data for the terminals, which let them see which individual subscribers were logged on at any given time, when a subscriber was last logged on, and how often he accessed certain functions. The Bloomberg reporters used this customer data as a basis to question Goldman Sachs and J.P. Morgan Chase on major news events regarding each. For example, in 2012, J.P. Morgan Chase suffered big trading losses in its London office. Bloomberg reporters used the fact that some employees involved in the losses had not logged on to the Bloomberg terminals, as a basis to question J.P. Morgan about whether those employees had left the company. Similarly, a Bloomberg reporter called Goldman Sachs’ Hong Kong Office this past April to ask about a partner at the firm that had not recently logged on to the Bloomberg Terminal. As a result of the disputes, J.P. Morgan reportedly removed some of the data terminals from its trading floors, though Goldman Sachs has not done so.

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1391783_big_ben.jpgIn our last article, we began a discussion about insurance fraud. It comes in many shapes and sizes, infects many different types of claims, and is hard to eradicate. Like the Hydra of Greek mythology, every time you prevent a fraudulent claim from being paid, many more raise their ugly heads.

The extent of the problem is illustrated by the complex fraud rings that have made the news recently. A multi-year, multi-agency investigation, named Operation Sledgehammer, in Dade and Palm Beach counties in Florida, just led to the arrests of 26 people in an insurance fraud ring. The defendants allegedly staged accidents to collect personal injury protection benefits which would be split among the recruiters, those allegedly injured, the medical professionals who allegedly treated them, and the owners of the clinics where they were treated. According to news reports, those arrested were charged with having billed more than $20 million to insurance companies in the scheme. Earlier this month, Allstate Insurance Company filed its third insurance fraud lawsuit of 2013. This one, filed in the United States District Court for the Eastern District of New York, seeks to recover $3.8 million from five medical professional corporations and six physicians for allegedly fraudulent medical billing related to no-fault claims. It alleges that the defendants submitted bills for examinations and testing that were not performed, not necessary, or not designed to benefit the patients who allegedly were treated.

In order to fight insurance fraud, insurers need to be as flexible and adaptable as the perpetrators. One way to do this is through the effective use of the vast amounts of information already within the carrier’s control.

The term “Big Data” has been used a lot recently, within both the scientific and business communities. It’s defined as a huge amount of digital information, so big and complex that normal database technology cannot process it. Computers can handle large amounts of information, much more than any single person could analyze; Big Data is many times bigger. Think of the well-publicized human genome project, in which scientists mapped human DNA. They first had to identify each piece of information before they could try to figure out what each part is used for and how it affects the others. Or consider the case of retailers who now analyze customer data to decide on the types and amounts of inventory they need to stock and the price points or sales they need to run in order to sell it. They need to gather, and integrate, the data regarding their customers from myriad sources, before they can analyze and make intelligent decisions based on it.

Identifying information is hard enough, even if you already have it. Figuring out what each piece of information means can be daunting, especially when there are so many to sift through. There is a lot of information to work with: Of all the data that currently exists in the world, 90% has been created in the last two years. How that data can be, and is, used is the key.

Insurance carriers have a lot of information at their disposal. How many claims does a large insurer handle a year and how much information is gathered on each? Should that information be kept isolated, or should it be integrated to help make intelligent decisions about fraud investigations?

A September, 2012 study, entitled “The State of Insurance Fraud Technology,” which was conducted by the Coalition Against Insurance Fraud, with technical assistance from SAS Institute, found that most insurers now use technology to assist them in determining which claims to investigate:

When it comes to technology, most insurers’ anti-fraud efforts begin with rules-based systems. These systems test and score each claim against a predefined set of business rules and report the results to the SIU teams that look suspicious due to their aggregate scores or relation to threshold value.

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266667_burned_out_3.jpgInsurance fraud is a widespread problem, in New York, throughout the United States, and around the world. It involves many different types of insurance claims. Insurance fraud can be found in first-party claims, where the insured is seeking to recover more than he otherwise would be entitled to under his own policy, be it a homeowner’s, business owner’s or other commercial lines policy, or an automobile policy. It also can be found in third-party claims, where claimants seek to recover from the insured’s liability carrier for loss or damage that did not occur, which the insured did not cause, or for exaggerated or pre-existing damage or injuries. Its impact is well known: Insurance carriers incur higher costs, including expenses to investigate and defend against fraudulent claims, higher claims payments and lower premium income. The Coalition Against Insurance Fraud estimates that insurance fraud schemes steal approximately $80 billion a year. Policyholders are forced to subsidize, through higher premium payments, the claimants who collect on fraudulent and/or exaggerated claims. The National Crimes Bureau estimates that insurance fraud adds $200-$300 per year to an individual’s insurance premium. The fraud is attempted through everything from complex schemes to mundane lies. What makes it important is not so much how it’s done, but its prevalence.

Sometimes the insurance fraud schemes are ingenious. In March 2013 an upstate New York man was arrested because he was found in possession of a tilt bed truck and vehicle identification number, both of which were stolen. Even though he was caught and arrested, the man still could be considered clever: The truck he was found with actually was built from two other, stolen trucks.

Sometimes the insurance fraud schemes are mundane. In March 2013 an Oneida County, New York, man was arrested for insurance fraud. He made a claim under his homeowner’s policy with Liberty Mutual Insurance Company to recover $11,779 for water damage to his residence, and submitted a sworn statement in proof of loss in support of the claim. It turned out, however, that there was substantial evidence that the water damage he tried to recover for was actually pre-existing damage; it was there before the date of the claimed loss. As it turns out, that was neither clever nor effective.

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1360618_carlisle_castle_cannon.jpgWhen an insurance company provides liability coverage, in New York or elsewhere, it most often provides an attorney to defend its insured against lawsuits for risks covered under the policy it issued. This is true whether the insured is covered by an automobile policy, homeowner’s policy, business-owner’s or BOP policy, or title insurance policy; if the allegations against the insured are covered by the policy, the insurer will retain counsel to defend the insured against those same claims. The attorney can be in-house counsel or outside counsel retained by the insurance company on a case by case basis. Who this counsel, often called “retained counsel” or “assigned counsel” represents, may surprise you. The answer is something every carrier, claims adjuster, and policyholder in New York should remember: The insured. In assigning counsel to defend an insured, the insurance company should be careful to select one that knows, and follows, this rule.

The case law in New York is clear. The Court of Appeals, in Feliberty v. Damon, 72 N.Y.2d 112, 120, 527 N.E.2d 261, 265 (1988), stated it best:

First, the duty to defend an insured is by its very nature delegable, as all the parties must know from the outset, for in New York–as in California–an insurance company is in fact prohibited from the practice of law (Judiciary Law § 495). Accordingly, the insurer necessarily must rely on independent counsel to conduct the litigation. Second, the paramount interest independent counsel represents is that of the insured, not the insurer. The insurer is precluded from interference with counsel’s independent professional judgments in the conduct of the litigation on behalf of its client (Trieber v. Hopson, 27 A.D.2d 151, 153, 277 N.Y.S.2d 241; American Employers Ins. Co. v. Goble Aircraft Specialties, 205 Misc. 1066, 1075, 131 N.Y.S.2d 393; see also, Code of Professional Responsibility EC 5-17, 5-21, 5-23).

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639296_horses.jpgWe are going to pick up where we left off in our last article on subrogation in New York. We were talking about a subrogation case I had that showed how to overcome an exculpatory clause in a contract that absolved one of the parties from liability for its own negligence. In my case, it was an alarm company that monitored a warehouse that had a break-in in which clothes valued at several hundred thousand dollars were stolen. If the alarm company’s actions in responding to the alarms at the warehouse amounted to ordinary negligence, the subrogation action would fail because the insured, who signed the contract, could not recover, and therefore neither could the insurer. There could be a recovery, however, if the alarm company’s actions amounted to gross negligence because, at least in New York, a party cannot absolve itself from liability for its own gross negligence. See Sommer v. Fed. Signal Corp., 79 N.Y.2d 540, 554, 593 N.E.2d 1365, 1370-71 (1992).

According to the court, the basic facts were undisputed. The alarm company received alarms that something had happened at the warehouse, and notified the police and the designated representative of the business, as it was supposed to do. The police never arrived. The warehouse representative was told only that the alarms had been received. He thought they might be false alarms, as had happened in the past, and waited approximately a half hour for the alarm company guard to get to the warehouse, investigate, and call him back to let him know whether there had been an actual break in. When he did not get a call back, he went to bed. The alarm company, however, waited until the next shift, approximately three hours after it received the alarms, to have one of its guards respond to the warehouse to investigate, and it never told anyone from the warehouse that it would not be able to respond for so long; both were violations of its own guidelines. It also only had only a small number of guards on duty to respond to calls in a very large, populated area. In order to enter the warehouse the guards first had to travel back to the central station, get the key for the warehouse, and then drive a long distance back to the warehouse. Only then would they be able to investigate the alarms.

The key was not any one thing that the alarm company did wrong with this particular break in. The fact that it waited three hours to have a guard investigate the alarm, when it stated the guard would respond in 15 minutes, was not, by itself, gross negligence. Instead, I argued the evidence of gross negligence was found in a system that inevitably caused such delays: The evidence of the low number of guards on duty; the large area they had to cover; the long distance from the guard station to the warehouse that made it difficult even on a good night to make it to the warehouse in time; and the violation of its own guidelines. This was evidence of the gross disregard for the rights of others, of actions that smack of intentional wrongdoing, which is required to get to trial on claims of gross negligence.
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