STATE OF FLORIDA v. MICHAEL DELPRETE
No. 4D20-1680
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
[September 22, 2021]
Ashley Moody, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellant.
David M. Lamos of Law Offices of David M. Lamos, Fort Pierce, and Juan F. Torres III, Fort Pierce, for appellee.
FORST, J.
The State appeals the trial court‘s order granting Appellee Michael Delprete‘s amended motion to dismiss. The State argues that the trial court erred in: (1) misinterpreting section
Background
Appellee was charged by Information with one count of “False Insurance Claim $20,000 to $100,000,” stemming from a July 2016 motor vehicle accident. In the accident, Appellee‘s vehicle, a second vehicle, and an electrical box sustained damage.
Appellee twice reported the accident to his insurer. Both times, Appellee claimed his vehicle had been stolen and he was not driving his
The State initially charged Appellee with “Leaving the Scene of an Accident.” That case proceeded to a jury trial in January 2018. Appellee testified at that trial that he was merely a passenger at the time of the accident, as his uncle had been driving. Although the jury ultimately acquitted Appellee of the Leaving the Scene charge, shortly thereafter—based upon his testimony that his uncle had been driving the vehicle at the time of the accident—the State opened a new case, charging Appellee with insurance fraud.
Appellee filed an amended sworn motion to dismiss the insurance fraud charge, pursuant to
The claims manager had testified that, although Appellee reported the claim as a theft, the insurer elected to pay out under Appellee‘s collision coverage.2 The claims manager had further testified that Insurer would have handled the claim as a collision loss even if Appellee‘s uncle had been the driver.
Appellee thus argued that, because under
The State filed a traverse, responding to every paragraph contained within Appellee‘s amended motion to dismiss. The State‘s traverse essentially argued that a charge of insurance fraud did not require an element of justifiable reliance.
The trial court later held a hearing on the amended motion to dismiss. At the hearing, Appellee repeated his argument that—absent some demonstrated reliance on his alleged misstatements—an essential element of the crime was missing, and dismissal was proper. The State, in turn, asserted it had alleged sufficient facts and legal argument to overcome Appellee‘s motion to dismiss.
In support of the traverse‘s sufficiency, the State called the insurer‘s claims manager to testify at the hearing. The claims manager‘s testimony largely duplicated his earlier deposition statement, as he again testified that the insurer had not relied upon Appellee‘s alleged misstatements in paying out Appellee‘s insurance claim under his collision coverage, and Appellee‘s insurance claim would have been processed under the policy‘s comprehensive coverage if the insurer had relied upon his statements. Moreover, the claims manager testified that whether an insurance claim is processed under collision or comprehensive coverage “matter[ed]” to the insurer.
The trial court later entered a detailed order granting Appellee‘s amended motion to dismiss. The court found the State‘s traverse “lacking in citing material facts to dispute the facts set forth” in Appellee‘s motion, though it acknowledged that at least one paragraph in the traverse did “assert relevant disputed facts.”
Despite this acknowledgement, because the trial court deemed “[t]he central issue . . . [to be] whether or not the statements made by [Appellee] to [Insurer] for damages were material to the insurance company paying the claims,” and because there was no dispute that Insurer had handled the claim under Appellee‘s collision coverage rather than his comprehensive coverage, the court found that dismissal was appropriate. The State timely appealed.
“Because a motion to dismiss pursuant to rule
A. Insurance Fraud‘s Elements
“In construing the meaning of a statute, we first look at its plain language.” Montgomery v. State, 897 So. 2d 1282, 1285 (Fla. 2005). “When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Id. (quoting Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)).
The “false and fraudulent insurance claims” statute provides in pertinent part:
(1)(a) A person commits insurance fraud punishable as provided in subsection (11) if that person, with the intent to injure, defraud, or deceive any insurer:
1. Presents or causes to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to an insurance policy or a health maintenance organization subscriber or provider contract, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim[.]
Florida case law further supports this contention. In Cox v. State, 443 So. 2d 1013 (Fla. 5th DCA 1983), a defendant twice called his insurance company and reported the theft of a trailer which he knew had not been stolen. Id. at 1014. The defendant later called his insurer and requested
On appeal, the Fifth District held that “[a]ttempted making of a false and fraudulent insurance claim is a nonexistent crime in Florida, since attempt is encompassed in the substantive offense itself.” Id. at 1015. As further noted by the court, “the substantive crime [of insurance fraud under section
The Fifth District‘s remand to the trial court—even though the insurer in that case never paid the claim—demonstrates an implicit approval of an insurance fraud charge under such circumstances. Though the Fifth District analyzed the insurance fraud statute‘s 1981 version, and the statute has since been amended multiple times, the only material changes to the statute have been clarifications or updates addressing the degree of punishment, with the statute‘s elements remaining nearly identical. Compare id. at 1014 (quoting
Here, like in Cox, the insurer did not pay out any insurance proceeds connected with an alleged misstatement. Nonetheless, the argument that the insurer did not ultimately rely on Appellee‘s statements is immaterial to the insurance fraud charge‘s validity. The statute simply does not mandate dismissal merely because an insurer did not act on an alleged misrepresentation. To read the statute otherwise would negate Cox‘s assertion that attempt is encompassed within the insurance fraud statute. 443 So. 2d at 1015. Consequently, we hold the trial court erred in dismissing Appellee‘s insurance fraud charge based upon a non-existent reliance element.
B. The Traverse‘s Sufficiency
Having determined reliance is not an element of a section
Here, the trial court deemed the undisputed fact that the insurer had disregarded Appellee‘s statements and paid the claim under Appellee‘s collision coverage to be determinative. Although the trial court took issue with several portions of the State‘s traverse, the trial court did so in the context of a non-existent statutory element of justifiable reliance, notwithstanding its acknowledgment that the State‘s traverse at least in part asserted relevant disputed facts. Because section
Reversing the dismissal is appropriate here because: (1) “intent or state of mind is not an issue to be decided on a motion to dismiss under Rule
Conclusion
The trial court erred in reading a non-existent justifiable reliance element into section 817.234, and therefore erroneously found the State‘s traverse legally insufficient. Accordingly, we hold that the trial court erred in granting Appellee‘s amended motion to dismiss. We reverse and remand for reinstatement of the insurance fraud charge, and for the entry of an order denying Appellee‘s rule
Reversed and remanded with instructions.
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Not final until disposition of timely filed motion for rehearing.