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True Crime of Insurance Fraud Number 38  

https://zalma.com/blog

Barry Zalma, Esq., CFE presents videos so you can learn how insurance  fraud is perpetrated and what is necessary to deter or defeat insurance  fraud. This Video Blog of True Crime Stories of Insurance Fraud with the  names and places changed to protect the guilty are all based upon  investigations conducted by me and fictionalized to create a learning  environment for claims personnel, SIU investigators, insurers, police,  and lawyers better understand insurance fraud and weapons that can be  used to deter or defeat a fraudulent insurance claim.  The most effective tool an insurer has against fraud is the examination  under oath. The right to compel an insured to appear for examination  under oath has been part of the standard fire policy in every state of  the United States that adopted the N.Y. Standard Fire Insurance policy.  The right was recognized by the United States Supreme Court in Claflin.v  Commonwealth Insurance Company, 110 U.S. 81, 3 S.C. 507, 28 L.Ed. 76 a  decision unchanged since it was decided in 1888. 

When an Insured is suspected of arson, or some other variation of  insurance fraud, the insurer will almost always require testimony at  examination under oath. The Insured often refuses to appear for  examination under oath \\u2014 a material condition of the policy \\u2014 claiming  the insurer\\u2019s demand was a bad faith attempt to deprive him of his right  against self-incrimination stated in the Fifth Amendment to the US  Constitution.  In Gruenberg v. Aetna Insurance Co. 9 Cal.3d 566, 108 Cal.Rptr. 480  (1973) the California Supreme Court ruled that an Insured had stated a  cause of action for breach of the covenant of good faith and fair  dealing when the insurer denied the claim for refusal to testify at  examination under oath. In fact, the Insured agreed to testify as soon  as the criminal proceeding was completed.  If Gruenberg stands for the proposition that insurers must wait until  the Insured is exonerated in his criminal proceeding the California  Supreme Court should revisit Gruenberg and adopt the reasoning of the  Massachusetts Supreme Judicial Court in Mello and the California Court  of Appeals in Fremont and Altfillisch to eliminate a long delay that  would make defense of the insured\\u2019s suit beyond the ability to prove the  defense of fraud. Insurers, to avoid the problem raised by the  California Supreme Court should never file, in California, a complaint  for declaratory relief against an insured and compel the insured to file  since, as a plaintiff, he would be unable to assert the Fifth Amendment  to prevent a deposition or trial where he may incriminate himself. 

(c) 2022 Barry Zalma & ClaimSchool, Inc.