Three Case Studies: Arson, a Jail Sentence and Fraud

Arson for Profit Conviction Affirmed in Pennsylvania

υ John M. Sekerak appealed from the January 16, 2020 judgment of sentence entered in the Court of Common Pleas of Berks County (“trial court”), following his jury convictions for two counts of arson, recklessly endangering another person (“REAP”), and insurance fraud. In Commonwealth of Pennsylvania v. John M. Sekerak, J-S47005-20, No. 387 MDA 2020, Superior Court of Pennsylvania (March 15, 2021) the Pennsylvania court considered the convicted arsonist’s claims of error only to find that he was guilty beyond a reasonable doubt.

FACTS

The facts and procedural history of this case are undisputed. Briefly, Appellant was charged in connection with an August 8, 2018 residential fire. The case proceeded to a multi-day jury trial, following which Appellant was found guilty. On January 16, 2020, the trial court sentenced him to an aggregate term of 5 to 10 years’ imprisonment, followed by two years of state probation. The court also directed Appellant to pay $85,808.79 in restitution.

Even if the court considered Appellant’s sufficiency claim regarding REAP and insurance fraud as being predicated upon his claim that he did not intentionally or recklessly set the fire (being the only basis upon which Appellant presents a sufficiency challenge, the claim still would be without merit because the Commonwealth proved beyond a reasonable doubt that Sekerak committed arson.

Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Mrs. Sekerak testified that her husband was enraged but that she had seen him like this before. She stated that he started to say he was tired of living and he grabbed a gas can and held it over his head and started pouring it onto himself. Mrs. Sekerak testified that it was not a whole can of gas but a substantial amount of gas that he poured onto himself. Mrs. Sekerak testified that he told her a second time to “take the cats and get the “f” out of here.” Mrs. Sekerak stated she then grabbed some clothing and went to the car to leave. She testified that she was not worried for her safety but was worried about Joe’s safety. Right before she left, she saw Sekerak carry two propane tanks down to the house and that is when she decided to drive away from the property. Mrs. Sekerak then drove to a nearby gas station and called the police.

Trooper Herb as an expert identified an area in the living room as one of the places of origin. Trooper Herb stated that he had found two propane tanks in the home, one in the basement and one in the living room. Albert Lattanzi Jr., an expert in the field of trace evidence with respect to fire debris, also testified during trial. Mr. Lattanzi testified that he analyzed nine items for accelerants and found gasoline on three of the nine.

This appellate court found that based on the testimony of Mrs. Sekerak, Trooper Herb, and Albert Lattanzi, the jury had sufficient evidence to establish that Sekerak was guilty beyond a reasonable doubt. The jury had enough evidence to satisfy every element of arson.

Viewing the evidence in a light most favorable to the Commonwealth, the appellate court agreed with the trial court’s conclusion that the Commonwealth proved beyond a reasonable doubt that Appellant committed arson.

Where, as here, the sentencing court had the benefit of a presentence investigation report, the sentencing court was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors.

In sum, the appeal failed.

ZIFL OPINION

Arson is the most dangerous and vicious form of insurance fraud. In this case, in fact, a firefighter was injured. People die in arson-for-profit schemes and I hope his has a really unhappy and miserable time in the gray-bar hotel where he will spend the next five years.

Seven and a Half to Fifteen Years for Fraud

After a judgment was entered by the Supreme Court, New York County (Justice, Neil E. Ross, J.), rendered December 4, 2018, convicting defendant Sharif King, upon his plea of guilty, of criminal possession of stolen property in the second degree, forgery in the second degree, identity theft in the first degree and insurance fraud in the third degree, and sentencing him, as a second felony offender, to an aggregate term of 7½ to 15 years.

In The People of the State of New York v. Sharif King, Ind No., 2021 NY Slip Op 01521, 1940/15, Ind No. 4862/15, Appeal No. 13336-13336A, Case No. 2019-791, Appellate Division of the Supreme Court of the State of New York (March 16, 2021) Defendant’s ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record. Accordingly, because defendant has not made the appropriate motion, the merits of the ineffectiveness claims may not be addressed on appeal.

In the alternative, to the extent the existing record permits review, the appellate court found that defendant received effective assistance under the state and federal standards.

The record establishes that defendant made a valid waiver of his right to appeal. Regardless of whether defendant validly waived his right to appeal, we perceive no basis for reducing the sentence.

ZIFL OPINION

After entering a guilty plea and waving the right to appeal Mr. King then tried to appeal claiming his lawyer was inadequate. The court refused to listen since he was clearly well represented, clearly guilty of the crimes alleged against him and had waived his right to appeal. A complete waste of the court’s time and a requirement that he spend the time required by the trial court in New York’s Gray Bar Hotel.

False Estimate By “Consultant” Adopted by Insured Is Fraud

Jennifer Mezadieu (“the Homeowner”) appeals the trial court’s entry of final summary judgment in favor of SafePoint Insurance Company (“SafePoint”) in her breach of contract action. The trial court entered final summary judgment pursuant to the policy’s “concealment or fraud” provision after determining that the repair estimate prepared by the Homeowner’s loss consultant included material false statements. In Jennifer Mezadieu v. SafePoint Insurance Company, No. 4D20-2, District Court of Appeal of The State of Florida Fourth District (March 26, 2021) the court sought to be excused from her reliance on the consultant and adoption of the false estimate.

On appeal, the Homeowner argued that summary judgment was improper because issues of material fact remained as to whether:

· the estimate contained false statements;

· the false statements were material; and

· the Homeowner intended to rely on the false statements.

FACTS

The Homeowner owns a home insured by SafePoint. On February 25, 2016, the Homeowner submitted a notice of claim with SafePoint alleging that the residence sustained damage caused by a water leak in the second-floor bathroom. The notice identified Contender Claims Consultants (“Contender”) as the Homeowner’s loss consultant.

SafePoint had the home inspected by an independent adjuster and a building scientist. According to SafePoint’s building scientist, a loss consultant from Contender was present during the inspection and directed SafePoint’s agents to parts of the home claimed to have sustained damage from the leak, including the kitchen located directly below the second-floor bathroom. After concluding its investigation, SafePoint determined the alleged damages were consistent with chronic moisture exposure occurring over a minimum period of six weeks in duration prior to the reported date of loss, and inconsistent with the damage being caused by a one-time leak. SafePoint accordingly denied the claim pursuant to Section I of the policy, which excludes coverage for damages caused by “[c]onstant or repeated seepage or leakage of water or steam . . . which occurs over a period of time.”

In response, Homeowner sued SafePoint. In her complaint, the Homeowner asserted she provided SafePoint “with a damage estimate for a covered loss in the amount of $43,181.01,” and that she “sustained unpaid damages in the amount of $43,181.01.” The Homeowner later filed the detailed, itemized estimate—prepared by Contender—with the court. The estimate sought damages for nearly every room of the house. Notably, the estimate included line items for the replacement of the kitchen cabinets.

In her sworn interrogatory responses the Homeowner responded to the question of damage as follows: “$43,181.01, as per the written estimate prepared by [Contender] submitted with Plaintiff’s Responsive Documents to Defendant’s Request for Production.”

At the deposition of the Homeowner she confirmed that, consistent with the estimate, she was claiming $43,181.01 in damages. When questioned about the line items in the estimate, however, the Homeowner all but conceded that the estimate contained false statements. For example, when asked if the reported leak caused damage to the kitchen cabinets, the Homeowner disclosed that the cabinets had actually been damaged by a prior leak in the kitchen—a leak which the Homeowner made a claim for with a different insurer—and that the leak at issue did not cause any damage to the kitchen cabinets.

Based on the Homeowner’s sworn interrogatory answers and deposition testimony, SafePoint amended its answer to include an affirmative defense based on the policy’s “concealment or fraud” provision. That provision states that SafePoint will not provide coverage for an otherwise covered loss if, whether before or after the loss, one or more “insureds” have:

(1) Intentionally concealed or misrepresented any material fact or circumstance;

(2) Engaged in fraudulent conduct; or

(3) Made material false statements; relating to this insurance.

SafePoint moved for summary judgment pursuant to that provision.

ANALYSIS

At no point prior to the hearing did the Homeowner seek to revise the estimate or otherwise submit a new estimate. At the hearing, the Homeowner’s attorney made the following concessions:

·  The Homeowner “has never said that she does not agree with [the] sworn proof of loss;”

· the Homeowner adopted the estimate; and

·   the estimate should not have included $11,000 for damages to the kitchen and that it would therefore be appropriate for the trial court to grant partial summary judgment, or alternatively, strike $11,000 from the total damages claimed by the Homeowner.

At the conclusion of the hearing, the trial court found that the uncontroverted summary judgment evidence established the estimate contained material false statements. The court also concluded that the false statements were attributable to the Homeowner because she adopted the estimate as her own in both her sworn interrogatory answers and deposition testimony, and because Contender was acting as her agent.

It is well established that a party is bound by his or her admissions under oath, be it by deposition or interrogatories. The Homeowner adopted the estimate as her own statement. As the estimate undisputedly included at least $11,000 in repairs unrelated to the leak, the Homeowner made material false statements relating to the claim.

Even after the Homeowner acknowledged during her deposition testimony that the kitchen cabinets were not damaged by the leak, she still made no attempt to revise the estimate prior to the summary judgment hearing. Even if the Homeowner did not intend to rely on the false statements contained in the estimate, a showing of intent is not required under the policy’s concealment or fraud provision. In Universal Property & Casualty Insurance Co. v. Johnson, 114 So. 3d 1031, 1036 (Fla. 1st DCA 2013). the court analyzed the same “concealment or fraud” clause, albeit in the context of a false statement made on an insurance application, and held that the material false statement need not be intentional. In so holding, the Johnson court explained that “given the language of subsection [(1)], subsection [(3)] would be superfluous if a ‘false statement’ under [(3)] included only intentionally false statements.”

Simply put, an insured cannot blindly rely on and adopt an estimate prepared by his or her loss consultant without consequence. This is not to say that an insured will always be bound by the representations made in an estimate prepared by his or her loss consultant.

When an insured relies on or adopts an estimate containing material false statements to support his or her claim, the insured is bound by the estimate and cannot avoid application of the concealment or fraud provision simply because he or she did not prepare the estimate.

ZIFL OPINION

A “loss consultant” or “public insurance adjuster” usually takes an assignment of the funds the insured is to collect from the insurer due to the claim presentation. Regardless, the claim is presented by the insured and if the loss consultant – as Contender did in this case – the insured knew that the presentation by Contender was false and so testified at deposition. In so doing she admitted that she adopted the fraudulent claim prepared by Contender and attempted to defraud her insurer. Although she may have had a legitimate claim – which is doubtful – the fraud defeated her attempt to obtain money from her insurer.