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The Magic Toilet and the Conviction of Insurance Fraud and Other Crimes



I The People v. Cornel Lucaci, E072740, Court of Appeal of the State of California Fourth Appellate District Division Two (December 23, 2020) A Case That Should Give Glory to All Insurance Fraud and damage personnel, after a thorough investigation, a jury of defendants and complainant Cornel Lucaci found guilty of several crimes. The convict included convictions for (1) arson of a structure (Pen. Code, § 451, sub (c)); (2) burglary (§ 459); (3) nine bills of insurance fraud (§ 550, sub. (A) (1)), (a) (5) & (b) (1)); (4) two thefts of grand theft (§ 487, paragraph a)); and (5) submit a false lease (§ 470, subd. (d)). The jury found the allegations that (A) in the murder fire used a device designed to speed up the fire or delay the ignition (§ 451.1, sub (a) (5)); (B) the defendant's theft exceeded $ 100,000 (§ 1203.045, sub (a)); and (C) indicted patterns of criminal conduct resulted in the seizure of more than $ 500,000 (§ 186.11, sub (a) (2)). The trial court found the allegation that two of the defendants' crimes were committed while he was on bail. (§ 12022.1.) The trial court sentenced the defendant to imprisonment for a period of 17 years.

The defendant appealed all the couts.

FACTUAL HISTORY

The defendant and his business partner, Johnny Borsca, owned companies that cleaned buildings after water or fire damage. The companies included IJF Contractors, Vortex Fire and Water Restoration, South Coast Cleaning and South Coast Cleaning Construction.

The defendant had a "magic toilet", which was a defective toilet he got from one of his jobs. Defendant's wife (wife) heard a conversation between Defendant and Elena Gherman. Gherman complained to the defendant that her insurance would not pay for all the water damage in her house. The defendant told Gherman that he would take the "magic toilet" to Gherman's house so "when the inspector c [a] me; and he would check that the toilet [then] he [would] see that the toilet is defective."

I The defendant and his wife lived in a house in Corona in February 2010. The wife was away for the weekend on February 22, 2010. When the wife returned home, the defendant was there and the house was flooded.In the bedroom, on the second floor, wife saw a hose coming through a sliding balcony door. The hose poured water into the house. The lady saw things in the house that had not been there when she went for the weekend. The new items included a porcelain cupboard, dining table and rugs. The China cupboard belonged to Gherman.

People will sometimes claim insurance to get more money from an insurance company, they will also add items such as expensive carpets and porcelain cabinets to the list of damaged property to increase the insurance payment. My wife had to move out of the house. Wife did not move in with her brother. However, there was a false lease that reflected the wife and the defendant rented a home from the wife's brother at a rate of $ 3,475 per month.

The defendant had a rental insurance with Stillwater Insurance Company (Stillwater). In February 2010, the defendant filed a claim against Stillwater for water damage to his house. The defendant told an adjuster that the house was uninhabitable so he lived with the family. The defendant sent the false lease to Stillwater in support of his claim that he had moved out of the house. Defendant and Borsca's company, IJF, provided an invoice or estimate of $ 75,000 for relief work on Defendant's house, and the document was submitted to Stillwater. Stillwater paid over $ 100,000 for the defendant's claim.

With regard to the Stillwater claim 2010, the jury found the defendant guilty of (A) having submitted a false insurance claim (§ 550, sub (a) (1)) (Count 9); (B) prepare a document in support of a false insurance claim (§ 550, sub (a) (5)) (Count 10); (C) make a false lease and hand it over as genuine (§ 470, sub (d)) (Count 11); and (D) grand theft (§ 487, sub (a)) (Count 12).

In 2012, the Army experienced Megerdichian's dental care business a significant economic downturn. In May 2013, Megerdichian noted its dental practice and the building where the practice was for sale. Megerdichian owed $ 315,000 on the building loan and $ 400,000 on a practice loan. In March 2014, there had been two offers from a potential buyer, but no sales.

On 26 March 2014, Borsca and Megerdichian communicated with each other via their mobile phones and Borsca and the defendant communicated with each other via their mobile phones. phones. On the night of March 26, 2014, the defendant set Megerdichian's building on fire. It seemed as if the fire was accelerated by fuel that had been poured on cartons in different parts of the building. The building was engulfed in flames and collapsed.

Megerdichian's building was insured by Liberty Mutual. As a result of the fire, Liberty Mutual paid $ 379,479.60 for the loss of the building and personal property. The policy also allowed $ 25,000 for garbage removal. The defendant's and Borsca's company, Vortex, was employed to remove debris.

With regard to the arson in 2014, the jury found the defendant guilty of (A) arson of a structure (§ 451, subd. (C)) (Count 1); (B) burglary (§ 459) (bill 2); (C) causes a false insurance claim to be made (§ 550, sub (a) (1)) (Count 3); and (D) causes an erroneous statement in support of an insurance claim (§ 550, sub (b) (1)) (Bill 4).

On August 2, 2015, the defendant's house flooded. The defendant said he spent the night at a friend's home and when the defendant returned to his house, "water came down from his roof inside the lower level of the house." The defendant said that a toilet bowl overflowed due to an obstruction in the bowl and a torn flap in the tank which caused the water to continue to flow.

About two weeks later, the defendant hired a public insurance adjuster, Hratch Zuhrae Ghazarian, to help him with his insurance claim. Defendant stated that Diamond Construction performed the mitigation work on Defendant's house. The defendant submitted two bills from Diamond Construction to Ghazarian. One bill was $ 18,000, and the other bill was $ 7,000 or $ 8,000. Ghazarian questioned the invoices because they did not have a contractor's license number and did not identify the author. Ghazarian spoke with Stelian Onufrei of Diamond Construction and corrected the issues on the invoice. Onufrei was one of the defendant's business partners. Ghazarian handed over the invoices to the Pacific.

Ninety percent of all insurance claims in the United States are included in the ISO database. If a person has a large number of statements, it is "an indicator that [a claim] needs to be further investigated." The wife told the insurer that the water damage "was staged and fraudulent." Wife said that there was furniture in the house after the flood in 2015 that had not been in the house before the flood. The wife said that furniture she did not recognize had been in the house after the flood in 2010.

In December 2015, Pacific requested that the defendant be subjected to an examination under oath to evaluate the defendant's claims. The investigation took place in March 2016. During the investigation, the defendant stated that Diamond Construction did not carry out the mitigation work on his house; rather, the defendant performed the work with the help of day laborers. The defendant also said that he and Onufrei had agreed to share the insurance money. Pacific denied the defendant's claim due to fraud.

Arson Investigation

Xente Baker is a fire investigator for the Corona Fire Department. Baker investigated the fire in 2014 against Megerdichian's building. As part of the investigation, Baker was looking for "a history of fraud or fire insurance losses." On March 24, 2017, the Riverside County District Attorney & # 39 ;s Office filed an erroneous complaint against the defendant in Case No. RIF1701070. The complaint concerned the arson in March 2014.

DISCUSSION

A conviction for theft according to the theory of false pretenses requires proof that (1) the defendant made a false pretense or petition to the owner of the property; (2) with intent to defraud the owner of that property; and (3) the owner transferred the property to the defendant depending on the representation. Pacific did not trust the defendant's representation. Rather, the Pacific defendant's claim was false and spent money to prove the defendant's representation was false. Therefore, substantial evidence does not support a finding that Pacific relied on the defendant's representation.

Attempts consist of (1) a specific intention to commit a crime and (2) a direct but ineffective act against its mission. For grand theft, the jury was instructed that, in order to find the defendant guilty, the defendant must "knowingly and intentionally defraud a property owner" and that "the defendant did so with intent to persuade the owner or agent's agent to let the defendant or another person take possession and ownership of the property.

When the jury found the defendant guilty of large-scale theft, the jury found that the defendant was intended to defraud the Pacific and deprive the Pacific. The defendant's intent to defraud corresponds to a specific intent to commit a crime by showing that the defendant intends to use false pretenses to seize Pacific property By filing the false claim with the Pacific, the defendant took a direct but ineffective act against the crime, and consequently we will reduce the defendant's conviction on account 8 of attempted theft.

The elements which are generally necessary to find a violation of the Penal Code § 550 are (1) answer the person's knowledge of making a false statement, (2) with intent. to deceive. The offense is complete when a false claim for payment of loss is presented to an insurance company or a false document is prepared or presented with the intention of using it in connection with such a claim, regardless of whether something of value is received or not received. It is not necessary for anyone to be actually deceived or actually suffer financial, legal or property loss as a result of the defendant's actions.

Insurance fraud is about fraud. It's not about fraud succeeding. Thus, the Act on Insurance Fraud applies to both supplemented and attempted fraud. This means that the crime of insurance fraud is always applicable when a person makes a false claim on an insurance company, regardless of whether the insurance company pays or denies the claim. If the person's false claim results in the insurance company paying more than $ 950, the crime of insurance fraud will overlap with grand theft.

The difference between insurance fraud and grand theft is not an additional act of the defendant, but an additional act of the victim. In this case, for example, the defendant was accused of insurance fraud for making a false claim, and he was accused of large-scale theft because Stillwater paid the claim. Defendant did not commit any further acts – Stillwater did.

Persons who commit insurance fraud are likely to succeed for some time, as the defendant did. This means that when people commit insurance fraud, payment of fraudulent insurance companies will be something that occurs frequently. Consequently, a violation of the law on insurance fraud will often lead to a violation of the law on theft.

In the case of insufficient legal theories, jurors are generally not ready to determine whether a particular theory of conviction handed down to them is against the law – if, for example, the measure in question does not fall within the statutory definition of the crime. Therefore, when jurors have been given the opportunity to rely on a legally insufficient theory, there is no reason to believe that their own intelligence and expertise will save them from that error. The prosecutor's theory about the case was that Megerdichian, Borsca and defendants conspired in arson and insurance fraud. Thus, the defendant had Megerdichian's permission to enter the building and burn it. Because burglary must be committed by a person who has no right to be in the building.

By law, a person is guilty of burglary if he or she enters a building or other structure specified in the charter with the intent to commit grand or petit larceny or any crime. Based on customary court law, our Supreme Court has clarified the statutory element of "entry" by declaring that the burglary involves "entry that invades a property right in a building and must be committed by someone who has no right to be in the building.

At the trial, when the prosecutor spoke about the defendant's likelihood of recidivism, he said: "He will – you know, he has no money. He has a huge refund. I mean, there is plenty of evidence of motive and ability to insult again.

The Board of Appeal concluded ante that the defendant's conviction of Count 8 must be reduced from theft to attempted theft. It also concluded that the defendant's conviction of burglary and conviction of grand theft must be reversed. accounts were left, it is unlikely that a different verdict would be imposed if the case was remanded for a full reopening of the hearing. that the trial court charged the accused with count 8, in view of the reduction of the crime where the attempt is punishable by half the prison term for the completed crime. that the defendant does not owe $ 194 223.34 to Liberty Mutual and that the defendant now has 12 judgments instead of 14, so the amount of the "per bill" fee will need to be reduced accordingly. with cases of insurance fraud. This lengthy statement, heavily edited by the ZIFL decision, is an example where the prosecutor accused many of the crimes, withdrew some and surpassed another. Regardless, after a thorough analysis, the court removed an insurer's right to a refund – presumably unpaid – and reduced one of the offenses. The victory the defendant received was Pyrrhic because he still had to serve a 17-year term. Insurance fraud and arson are both serious crimes. for the crimes committed by a supplier to insurers, even leaning so low that they used a magic toilet to support the claim, worked with arsonists to take advantage of their crimes and others who created floods in his home twice, deserved it long sentence and proved that it is easy to catch the insurance criminal who is greedy, lazy and probably stupid to continue creating several fraudulent claims.


© 2020 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to serving as an insurance consultant specializing in insurance coverage, insurance claims handling, fraud and insurance fraud almost equally for insurers and insurers. He also acts as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine / ACE Legend Award.

For the past 53 years, Barry Zalma has devoted his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to enable insurers and their claims staff to become insurance claims staff.

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