INSURANCE FRAUD: MAKING FALSE STATEMENT (CLAIMS)
(N.J.S.A.
2C:21-4.6a(1)) model jury charge
The defendant is charged in count
_____ of the indictment with insurance fraud.
[READ COUNT OF INDICTMENT]
Our
statutes provide that:
A person is guilty of a
crime... if that person knowingly makes (or causes to be made) a false,
fictitious, fraudulent or misleading statement of material fact in… any record,
bill, claim or other document, in writing, electronically, orally or in any
other form that a person attempts to submit, submits, causes to be submitted,
or attempts to cause to be submitted as part of, in support of, or opposition
to, or in connection with, a claim for payment, reimbursement or other benefit
(pursuant to an insurance policy)(from an insurance company)(from the
Unsatisfied Claim and Judgment Fund).[1]
In order to convict defendant, the
State must prove beyond a reasonable doubt the following four elements:
(1) that
the defendant knowingly made (or caused to be made) a false, fictitious,
fraudulent, or misleading statement of fact;
(2) that
the false, fictitious, fraudulent or misleading statement of fact was made (or
caused to be made) in a record, bill, claim, or other document, and that the
statement was made in writing, electronically, orally or in any other form;
(3) that
the defendant (CHOOSE APPROPRIATE)
(submitted)(caused to be submitted)(attempted to submit)(or attempted to cause
to be submitted) the false, fictitious, fraudulent or misleading statement as
(part of)(in support of)(in opposition to)(in connection with) a claim for
payment, reimbursement or other benefit (pursuant to an insurance policy) (from
an insurance company)(from the Unsatisfied Claim and Insurance Judgment Fund);
(4) that the false, fictitious, fraudulent or
misleading statement was material.
The
first element that the State must prove beyond a reasonable doubt is that the defendant
knowingly made a false, fictitious, fraudulent or misleading statement.
A
person acts knowingly with respect to the nature of his/her conduct
or the attendant circumstances if he/she is aware that his/her
conduct is of that nature, or that such circumstances exist, or he/she is aware of a high probability of their
existence. A person acts knowingly with
respect to a result of his/her
conduct if he/she is aware that it is practically certain
that his/her
conduct will cause such a result.
"Knowing," "with knowledge," or equivalent terms
have the same meaning. Knowingly is a state of mind and cannot be seen and can
only be determined by inference from conduct, words or acts. Therefore, it is not necessary that witnesses
be produced by the State to testify that a defendant said that he/she knowingly did something. His/Her
knowledge may be gathered from his/her acts
and his/her
conduct and from all he/she said and did at the particular time and
place and from all the surrounding circumstances reflected in the testimony
[and evidence adduced at trial].
The second element requires the
State to prove beyond a reasonable doubt that the defendant (made)(caused to be
made) a false, fictitious, fraudulent or misleading statement of material fact
in a record, bill, claim or other document.
The statement may have been made in writing, electronically, orally or
in any other form.
The
third element the State must prove beyond a reasonable doubt is that the
defendant (submitted) (caused to be submitted) (attempted[2] to
submit)(attempted to cause to be submitted) the statement (as part of) (in
connection with)(in support of)(in opposition to) a claim for payment,
reimbursement or other benefit (pursuant to an insurance policy)(from an
insurance company)(from the Unsatisfied Claim and Judgment Fund Law).
"Insurance policy" means the
instrument, in writing, electronically or in any other form, in which are set
forth the terms of any certificate of insurance, binder of coverage, contract
of insurance or contract of re-insurance, issued by an insurance company,
including, but not limited to, a State-assigned risk plan, plan of indemnity
protection provided by or on behalf of a joint insurance fund or benefit plan,
motor club service plan, or guaranty bond, surety bond, cash bond or any other
alternative to insurance authorized or permitted by the State of New Jersey.[3]
Insurance company means any person, company,
corporation, unincorporated association, partnership, professional corporation,
agency of government and any other entity authorized or permitted to do
business in New Jersey, subject to regulation by the State, or incorporated or
organized under the laws of any other state of the United States or of any
foreign nation or of any province or territory thereof, to indemnify another
against loss, damage, risk or liability arising from a
contingent or unknown event.
[CHARGE APPROPRIATE SECTION IF APPLICABLE:
Insurance company includes, but is not limited
to, an insurance company which can be in the form of any corporation,
association, partnership, reciprocal exchange, interinsurer, Lloyd's insurer, fraternal benefit society or
other person engaged in the business of insurance pursuant to Subtitle 3 of
Title 17 of the Revised Statutes (C.17:17-1 et seq.), or Subtitle
3 of Title 17B of the New Jersey Statutes (C.17B:17-1 et
seq.); or any medical
service corporation operating pursuant to P.L. 1940, c. 74 (C.17:48A-1 et seq.); or any hospital service corporation operating pursuant to P.L.
1938, c. 366 (C.17:48-1 et seq.); or any health service
corporation operating pursuant to P.L.1985, c. 236 (C.17:48E-1 et seq.); or any dental service corporation operating pursuant to P.L.1968,
c. 305 (C.17:48C-1 et seq.); or any dental plan organization operating pursuant to P.L.1979,
c. 478 (C.17:48D-1 et seq.); or any insurance plan
operating pursuant to P.L.1970, c. 215 (C.17:29D-1); or the New Jersey Insurance Underwriting Association
operating pursuant to P.L.1968, c. 129 (C.17:37A-1 et seq.); or the New Jersey Automobile Full Insurance Underwriting
Association operating pursuant to P.L.1983, c. 65 (C.17:30E-1 et seq.) and the Market Transition
Facility operating pursuant to section 88 of P.L.1990, c. 8 (C.17:33B-11); or any risk retention group or purchasing group operating
pursuant to the "Liability Risk Retention Act of 1986," 15 U.S.C. § 3901 et seq. [4], or a self-insurer,
re-insurer, reciprocal exchange, inter-insurer, hospital, medical or health
service corporation, health maintenance organization, surety, assigned risk
plan, joint insurance fund, and any other entity legally engaged in the
business of insurance as authorized or permitted by the State of New Jersey,
including but not limited to any such entity incorporated or organized under
the laws of any other state of the United States or of any foreign nation or of
any province or territory thereof.[5]]
[RESUME MAIN CHARGE AND CHARGE
IN ALL CASES]
The fourth element the State must
prove beyond a reasonable doubt is that the statement made was material.
An insured's misstatement is material if, when the statement was
made, a reasonable insurer would have considered the misrepresented fact
relevant to its concerns and important in determining its course of action.[6] In other words, the statement
of fact is material if it could have reasonably affected the decision by an
insurance company to provide insurance coverage to a claimant or the decision
to provide any benefit pursuant to an insurance policy or the decision to
provide reimbursement or the decision to pay a claim. (THE COURT SHOULD TAILOR THIS PORTION OF THE CHARGE TO THE FACTS IF
MATERIALITY IS DISPUTED) [7]
[CHARGE
IF APPLICABLE]
If you find that ________ signed or
initialed an application, bill, claim, affidavit, certification, record or
other document, then you may infer that he/she read and reviewed the application, bill,
claim, affidavit, certification, record or other document.
An inference is a deduction of fact
that may be drawn logically and reasonably from another fact or group of facts
established by the evidence. Whether or
not an inference should be drawn is for you to decide using your own common
sense, knowledge and everyday experience.
Ask yourselves is it probable, logical and reasonable. However, you are never required or compelled
to draw an inference. You alone decide
whether the facts and circumstances shown by the evidence support an inference
and you are always free to draw or not to draw an inference. If you draw an inference, you should weigh it
in connection with all the other evidence in the case keeping in mind that the
burden of proof is upon the State to prove all the elements of the crime beyond
a reasonable doubt.
[CHARGE
IF APPLICABLE]
(Multiple fraudulent statements alleged in
a single narrative or document)
The State alleges that the defendant
made multiple statements that are alleged to be false, fictitious, fraudulent
or misleading which are contained in the same narrative or document relating to
the claim. Multiple fraudulent
statements may be considered by you to constitute multiple acts of insurance
fraud only if the alleged fraudulent statement relates to a conceptually
distinct claim. (Here, the State alleges the claims are distinct: Instruct the jury as to the nature of the
State’s claim. Charge the defendant’s version, if requested.)
If the
multiple statements made in a single narrative or document relate to a claim
that is conceptually similar, it may then constitute only a single act of
insurance fraud.[9] Thus, you must unanimously find that the
State has met its burden to prove the four elements that I have defined for you
as to a particular statement contained in any single
narrative
or document. [10] In
other words, all twelve of you must agree that a particular statement contained in the narrative or document satisfies all
four elements beyond a reasonable doubt in order to find the defendant guilty.
[RESUME MAIN CHARGE]
If the State has failed [to prove
any of these elements beyond a reasonable doubt, then you must find defendant
not guilty of the crime of insurance fraud.
If you find that the State has proven beyond a reasonable doubt each of
the four elements, then you must find defendant guilty of the crime of
insurance fraud. If you find the
defendant guilty of the crime of insurance fraud, you must then go on to
consider the following.
[CHARGE IF SECOND DEGREE INSURANCE FRAUD IS
ALLEGED]
If you find that the State has proven the defendant
guilty of insurance fraud, you must then consider if the defendant knowingly
committed five or more acts of insurance fraud that had an aggregate value of
at least one thousand dollars.
A
section of our statute provides that insurance fraud is a crime of the third
degree, except that it is a crime of the second degree if the defendant
knowingly committed five or more acts of insurance fraud that had an aggregate
value of at least one thousand dollars.[11]
I have already defined the
mental state of knowingly for you.
If a statement is contained in a
separate document or narrative, even if it is related to a single claim, the
statement contained in the separate document or narrative may constitute an
individual act of insurance fraud.[12] However, multiple statements in the same
narrative or document relating to a conceptually similar claim may only constitute
a single act of insurance fraud. Thus, to find five or more acts, you must find
that the State has proven beyond a reasonable doubt, that the defendant
knowingly made false, fictitious, fraudulent or misleading statements or
omitted a material fact or caused to be omitted a material fact, in five or
more discrete documents or narratives.
Statements relating to the same claim that are contained in separate
narratives or documents may constitute more than a single act, if the State has
proven beyond a reasonable doubt that defendant submitted (caused to be
submitted) (attempted[13] to
submit)(attempted to cause to be submitted) the particular statement (as part
of) (in connection with)(in support of)(in opposition to) a claim for payment,
reimbursement or other benefit (pursuant to an insurance policy)(from an
insurance company)(from the Unsatisfied Claim and Judgment Fund), and that each
statement was material.
[CHARGE IF APPROPRIATE]
For example, if a document contained
a false statement of value and a false statement of the date of loss, that
would still constitute only a single act of insurance fraud. If, however, a
false statement of value was made in one document, and a false statement of the
date of loss was made in another document, even if the statements were made in
connection with the same claim, that would constitute separate acts of
insurance fraud.[14]
[RESUME MAIN CHARGE]
The
State must also prove beyond a reasonable doubt that the total value of the
property, services or other benefit wrongfully obtained or sought to be
obtained was one thousand dollars ($1,000) or more.
In
summary, if you find that the State has failed to prove any of the elements of
the crime of Insurance Fraud, you must find the defendant not guilty. If you
find the State has proven beyond a reasonable doubt all of the elements of
insurance fraud, and the State has proven beyond a reasonable doubt that the
defendant committed five or more acts of insurance fraud, and that the total
value of the acts was one thousand dollars ($1,000) or more, then you must find
the defendant guilty of Insurance Fraud in the Second Degree. If you find the
State has failed to prove either that the defendant committed five or more acts
of insurance fraud, or that the total value was one thousand dollars or more, beyond
a reasonable doubt, but find that the State has proven all of the other
elements of Insurance Fraud beyond a reasonable doubt, then you must find the
defendant not guilty of Insurance Fraud in the Second Degree, and you must find
the defendant guilty of Insurance Fraud in the Third Degree.
[1] The Unsatisfied Claim and Judgment Fund Law (UCJF), P.L. 1952, c.174 (N.J.S.A.
39:6-61 to 39:3-91) provided for the establishment and administration of a fund
for the payment of damages to certain qualified persons for personal injury or
property damage involving uninsured or unknown owners of automobiles. Jimenez
v. Baglieri, 152 N.J. 337, 339 (1998). There is caselaw, in the civil context, that
prohibits references to the Unsatisfied Claim and Judgment Fund during a civil
trial. Dalton v. Gesser, 72 N.J.Super. 100, 106 (App. Div. 1962).
The gist of the prohibition relates to the undue prejudicial impact the fact
that payment of damages would be coming from a public fund might have on the
deliberating jury. That same risk does not appear to be present in the context
of a criminal case, but the Court might consider crafting an appropriate
limiting instruction, if deemed appropriate in the context of the case.
[2] If attempt is charged, the jury should be instructed from
the Model Jury Charge, Attempt N.J.S.A.
2C:5-1, as attempt requires a purposeful mental state.
[3] N.J.S.A. 2C:21-4.5.
[4] P.L. 1983, c. 320 (sec. 3)(N.J.S.A.
17:33A-3).
[5] N.J.S.A. 2C:21-4.5.
[6] Longobardi v. Chubb Ins. Co. of New Jersey, 121 N.J.
530, 540-541 (1990). In Longobardi, the N.J. Supreme Court examined
materiality of fraudulent representations in the context of denial of coverage
actions, and the Court adopted an objective standard for materiality. It is unclear from the penal statute whether
the materiality of a statement must be judged by an objective or subjective
standard. If the standard would be subjective, then the jury should be
instructed that the State must provide evidence of actual detrimental reliance
by the alleged victim or victim(s) to prove this element beyond a reasonable
doubt.
[7] See Model Jury Charges, Criminal, Perjury, N.J.S.A.
2C:28-1b. This paragraph should be
tailored to the appropriate facts of the case if the issue regarding
materiality is disputed or falls outside the examples cited. The New Jersey Supreme Court has consistently
held that the subjective good faith of the applicant regarding an “innocent”
mistake was not relevant to the materiality determination. Palisades Safety
and Ins. Ass’n v. Bastien, 175 N.J. 144, 151 (1995).
[9] State v. Fleischman, 189 N.J. 539, 554
(2007). As an example where multiple false statements in a single narrative
would constitute separate acts, Fleischman points to the situation where
a false statement is made that an automobile was stolen, and that a false claim
was made that a fur coat was in the automobile at the time of the theft. This
would constitute separate acts of insurance fraud, even if contained in a
single narrative. Id. at 546-547 n.3.
[10] The Committee’s view is that this specific unanimity charge
is required as to a particular statement pursuant to State v. Frisby,
174 N.J. 583 (2002) and State v. Gentry, 183 N.J. 30
(2005) and the cases cited therein as a matter of state constitutional law.
Although a specific unanimity charge is not required in every circumstance
where the jury must find some preliminary factual circumstances which might be
evidence of a single course of conduct, see
e.g. State v. Parker, 124 N.J. 628, 633 (1994) and examples
cited therein, the discrete inquiry the jury must undertake regarding the
materiality of a statement seems to make this scenario more like those examples
cited in Frisby and Gentry which require a specific unanimity
instruction as opposed to Parker and examples cited therein. A special verdict form may be needed to be
used if the circumstances warrant.
[11] N.J.S.A. 2C:21-4.6(b). The statute states that claims
of health care claims fraud can be aggregated under this section. If there are
allegations of health care claims fraud, N.J.S.A. 2C:21.4.2, the Model
Jury Charge on Health Care Claims Fraud should be used as appropriate for those
alleged acts.
[12] State v. Fleischman, 189 N.J. at 554.
[13] If attempt is charged, the jury should be instructed from the
Model Jury Charge, Attempt N.J.S.A.
2C:5-1, as attempt requires a purposeful mental state.
[14] The trial court should not charge similar examples which
mirror the acts alleged in the indictment. The examples above should be changed
if that occurs.