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Proving that attempts at insurance fraud should never be repeated, especially when presented to the same insurer: in the case that follows, Robert Whiteside v. Commonwealth of Kentucky, No. 2009-CA-001162-MR (Ky.App.03/11/2011), Whiteside unsuccessfully appealed from the June 10, 2009, judgment of conviction and sentence of the Jefferson Circuit Court, because he used the same receipt in an effort to prove two losses.  Whiteside, after his conviction then used imaginative claims of error in the trial none of which could get him past the stupidity of presenting the same claim twice.

Whiteside's home was burglarized on November 22, 2004. He made a claim to his insurance company, State Farm, requesting payment of $27,000.00 in personal property losses. Whiteside was paid approximately $14,000.00 on the claim, of which sum approximately $4,000.00 was for stolen wheels and tires. In May of 2005, Whiteside filed a second claim, based on another burglary. At that time, State Farm decided to investigate the first claim and discovered that the receipt that had been tendered for the wheels and tires appeared to have been falsified. Whiteside was subsequently indicted in the Jefferson Circuit Court for one count of fraudulent insurance acts over $300.00.

At trial, the Commonwealth asserted that Whiteside's November 2004, claim for compensation for wheels and tires was fraudulent. Included in the Commonwealth's evidence was information regarding the second insurance claim made in May 2005. Whiteside was found guilty of the crime, sentenced to two years' imprisonment to be probated for five years, and was ordered to pay a fine and restitution to State Farm.

On appeal, Whiteside first argued that the Commonwealth failed to comply with the notice requirement of a Kentucky statute when it introduced the evidence of the second insurance claim. Whiteside further argued that the trial court erred by allowing the evidence.  The statute requires that the prosecution give reasonable pretrial notice to the defendant of its intent to introduce certain evidence described by the statute as evidence of "other crimes, wrongs, or acts" and "is not admissible to prove the character of a person in order to show action in conformity therewith." However, the court noted that such evidence may be admissible: "(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or (2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party."

The Commonwealth never alleged that the second insurance claim was a crime, a wrong, or a bad act, and no charges were ever brought against Whiteside with regard to this second claim. Instead, the evidence was introduced in order to illuminate the sequence of events that led to the insurance company's investigation of Whiteside's first claim. Whiteside last argued that his indictment was faulty because it failed to contain any language regarding materiality. This issue was raised at trial and the trial court allowed amendment of the indictment.

Since the indictment, in relevant part, stated: "defendant, Robert L. Whiteside, committed the offense of Fraudulent Insurance Acts Over $300, when he knowingly and with intent to defraud or deceive, presented or caused to be presented to State Farm Fire and Casualty Co., false and/or altered documents in support of an insurance claim, knowing that the documents contained false, incomplete, or misleading information and the claim benefit or money exceeded $300," the court of appeal concluded that the indictment apprised Whiteside of the nature of the crime with which he was charged, the specific offense with which he was charged. And it was not misleading. Whiteside's conviction and sentencing was upheld.

Barry Zalma is an attorney who acts as a legal expert witness for insurance fraud cases.  He is a Certified Fraud Examiner based in Culver City, California.  zalma@zalma.com www.zalma.com