FEDERAL INSURANCE COMPANY v. WINDHERBURG-CORDEIRO
Filing
72
OPINION filed. Signed by Judge Joel A. Pisano on 11/24/2014. (kas, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
____________________________________
:
:
FEDERAL INSURANCE COMPANY,
:
:
:
Plaintiff,
:
:
v.
:
:
DINA von WINDHERBURG-CORDEIRO :
:
:
Defendant.
:
____________________________________:
Civil Action No. 12-2491 (JAP)
OPINION
PISANO, District Judge.
Plaintiff brings this action against defendant Dina von Windherburg-Cordeiro
(“Defendant”) alleging violation of New Jersey’s Insurance Fraud Prevention Act N.J.S.A.
17:33A-1 et seq. Presently before the Court is a motion by Plaintiff Federal Insurance
Company (“Plaintiff” or “Federal”) for judgment on the pleadings. For the reasons below,
Plaintiff’s motion is granted in part and denied in part.
I. BACKGROUND
According to the amended complaint (D.I. 33, referred to herein at times as the
“complaint”), as of November 7, 2002, Defendant was an insured under a $1.5 million
Voluntary Accident Insurance Policy (the “Policy”). The Policy provided coverage for
“Permanent Total Disability.” In 2005, Defendant gave notice to Federal of a claim for
Permanent Total Disability (“PTD”) benefits as a result of injuries allegedly suffered on
1
March 20, 2004, from a fall down an escalator at the Munich Airport in Munich, Germany.
Plaintiff claimed that as a result of this fall she suffered dental damage, facial injuries, serious
cervical spine injury, and traumatic brain injury causing the loss of use of her extremities.
After seeking information from Defendant and conducting its review, Federal ultimately
denied Defendant’s claim.
On March 3, 2011, in accordance with the arbitration provision in the Policy,
Defendant filed a demand for arbitration with the American Arbitration Association disputing
the denial of her PTD claim and asserting claims for breach of contract, equitable reformation,
insurance bad faith and violations of the New Jersey Consumer Fraud Act. Federal filed a
counterclaim in the arbitration that included a count for common law fraud founded upon
representations made by Defendant during the claim investigation and the arbitration. A final
award was issued in that arbitration on August 2, 2012 (“August 2 Award”) on all claims and
the counterclaim, and a final award on attorney’s fees was entered on April 3, 2013 (“April 3
Award”).
The August 2 Award was a full and final award in favor of Federal on all of
Defendant’s claims and a partial award as to liability on Federal’s counterclaim for fraud. In
the written decision, the arbitration panel chair concluded that the disabilities and limitations
claimed by Defendant were “largely or entirely feigned.” D.I. 41-5 at 2. The decision stated
that Defendant had “engaged in deliberate deception and [had] feigned her injuries and
symptoms for the purpose of financial gain.” Id. at 5. The April 3 Award granted fees and
costs to Federal in the amount of $513,303.72. This Court granted Plaintiff’s motion to
confirm these awards on November 26, 2013. D.I. 61, 62.
2
In addition to seeking confirmation of the arbitration awards, the complaint in this
case also includes a count (Count I) for violations of New Jersey’s Insurance Fraud
Prevention Act (“IFPA”) and a count (Count III) seeking an Order from this Court that the
findings of fact in the aforementioned arbitration awards are binding on Defendant in this
proceeding and that Defendant is precluded from re-litigating any findings of fat made in the
arbitration. On March 22, 2013, Defendant filed a document purporting to be her answer to
the amended complaint. D. I. 37. This “response” to the amended complaint is a lengthy
submission that begins with a three-paragraph introduction (unnumbered), and is followed by
sixty-three numbered paragraphs, none of which correspond with the numbered paragraphs of
the complaint. These are followed by a twenty-page single-spaced narrative. As this Court
noted in an earlier decision addressing a motion by Plaintiff to strike Defendant’s answer,
nothing contained in this “answer” appears to respond to the specific allegations in the
complaint. D.I. 61 (Opinion), 62 (Order). Thus, this Court has held that to the extent that
Defendant’s answer fails to deny allegations in the amended complaint, those allegations are
deemed admitted. Id. In light of that decision, Plaintiff now moves for judgment on the
pleadings.
II. ANALYSIS
A. Legal Standard – Judgment on the Pleadings
Rule 12(c) of the Federal Rules of Civil Procedure allows a party to move for
judgment on the pleadings “after the pleadings are closed but within such time as not to delay
trial ...” Fed.R.Civ.P. 12(c). The applicable standard on a motion for judgment on the
pleadings is similar to that applied on a motion to dismiss pursuant to Rule 12(b)(6). Spruill
v. Gillis, 372 F.3d 218, 223 n. 2 (3d Cir.2004). In reviewing a motion made pursuant to Rule
3
12(c), a court must take all allegations in the complaint as true, viewed in the light most
favorable to the plaintiff. Gomez v. Toledo, 446 U.S. 635, 636 n. 3, 100 S.Ct. 1920, 64
L.Ed.2d 572, (1980); Robb v. City of Philadelphia, 733 F.2d 286, 287 (3d Cir. 1984).
Judgment on the pleadings pursuant to Rule 12(c), will be granted where the moving party
clearly establishes there are no material issues of fact to be resolved, and that he or she is
entitled to judgment as a matter of law. DiCarlo v. St. Mary Hosp., 530 F.3d 255, 259 (3d
Cir. 2008).
B. Discussion
Count I – New Jersey IFPA Claim
Count I alleges violations of the New Jersey Insurance Fraud Prevention Act (the
“Act”), N.J.S.A. 17:33A-1 et seq. Pursuant to N.J.S.A. 17:33A-4:
a. A person or a practitioner violates this act if he:
(1) Presents or causes to be presented any written or oral statement as part of,
or in support of or opposition to, a claim for payment or other benefit pursuant
to an insurance policy or the “Unsatisfied Claim and Judgment Fund Law,”
P.L.1952, c. 174 (C.39:6-61 et seq.), knowing that the statement contains any
false or misleading information concerning any fact or thing material to the
claim; or
(2) Prepares or makes any written or oral statement that is intended to be
presented to any insurance company, the Unsatisfied Claim and Judgment
Fund or any claimant thereof in connection with, or in support of or opposition
to any claim for payment or other benefit pursuant to an insurance policy or the
“Unsatisfied Claim and Judgment Fund Law,” P.L.1952, c. 174 (C.39:6-61 et
seq.), knowing that the statement contains any false or misleading information
concerning any fact or thing material to the claim; or
(3) Conceals or knowingly fails to disclose the occurrence of an event which
affects any person’s initial or continued right or entitlement to (a) any
insurance benefit or payment or (b) the amount of any benefit or payment to
which the person is entitled;
4
(4) Prepares or makes any written or oral statement, intended to be presented to
any insurance company or producer for the purpose of obtaining:
(a) a motor vehicle insurance policy, that the person to be insured maintains a
principal residence in this State when, in fact, that person’s principal residence
is in a state other than this State; or
(b) an insurance policy, knowing that the statement contains any false or
misleading information concerning any fact or thing material to an insurance
application or contract; or
(5) Conceals or knowingly fails to disclose any evidence, written or oral,
which may be relevant to a finding that a violation of the provisions of
paragraph (4) of this subsection a. has or has not occurred.
b. A person or practitioner violates this act if he knowingly assists, conspires
with, or urges any person or practitioner to violate any of the provisions of this
act.
c. A person or practitioner violates this act if, due to the assistance, conspiracy
or urging of any person or practitioner, he knowingly benefits, directly or
indirectly, from the proceeds derived from a violation of this act.
d. A person or practitioner who is the owner, administrator or employee of any
hospital violates this act if he knowingly allows the use of the facilities of the
hospital by any person in furtherance of a scheme or conspiracy to violate any
of the provisions of this act.
e. A person or practitioner violates this act if, for pecuniary gain, for himself or
another, he directly or indirectly solicits any person or practitioner to engage,
employ or retain either himself or any other person to manage, adjust or
prosecute any claim or cause of action, against any person, for damages for
negligence, or, for pecuniary gain, for himself or another, directly or indirectly
solicits other persons to bring causes of action to recover damages for personal
injuries or death, or for pecuniary gain, for himself or another, directly or
indirectly solicits other persons to make a claim for personal injury protection
benefits pursuant to P.L.1972, c. 70 (C.39:6A-1 et seq.); provided, however,
that this subsection shall not apply to any conduct otherwise permitted by law
or by rule of the Supreme Court.
N.J.S.A. 17:33A-4.
The complaint makes numerous allegations, deemed admitted in this case and
accepted as true, that demonstrate that Defendant violated the IFPA. See D.I. 33. As detailed
5
more thoroughly in the pleading, the complaint alleges that Defendant submitted to Federal
certain written and oral statements with respect to her claim for PTD benefits that Defendant
knew contained false or misleading information concerning: (1) her pre and post-accident
medical care; (2) her pre-accident medical conditions/injuries; (3) her post-accident
employment; (4) her receipt of other income; (5) her insurance coverage; (6) her receipt of
other government benefits relating to the accident; (7) her level of education; and (8) her
ability to travel, all of which were material to her claim for PTD benefits under the Federal
Policy. Id. at ¶¶ 211-216. The complaint alleges that Defendant made misrepresentations to
Federal relating to, among other things, her medical treatment, medical providers, ability to
work, other insurance benefits, other sources of income, her level of education and ability to
travel. Id. at ¶¶ 212, 215. It is also alleged that Defendant concealed or knowingly failed to
disclose information regarding events that would have affected her initial or continued right to
any insurance benefit or the amount of any insurance benefit under the Federal Policy. Such
events included the following: her medical treatment prior to the March 20, 2004, accident;
her medical treatment subsequent to the March 20, 2004, accident; her receipt of long term
care benefits, her receipt of United States Social Security Disability benefits; her receipt of
incapacity benefits from the United Kingdom Department for Work and Pensions; her
employment subsequent to the March 20, 2004, accident; her level of education, and her
travel outside of Portugal subsequent to the March 20, 2004, accident. Id. at ¶ 217. As stated
in the Court’s earlier opinion, Defendant failed to deny any of the aforementioned allegations.
D.I. 61, 62. Thus, the allegations in the complaint are accepted as true, and they establish that
Defendant has violated the IFPA. Plaintiff, therefore, is entitled to judgment on the pleadings
as to Count I.
6
Count III – Declaratory Judgment Claim
Count III seeks an order from the Court precluding Defendant from re-litigation any
findings of fact made in the arbitration proceeding between the parties. Given the Court’s
decision above, there are no further facts to be litigated in this action. This count, therefore, is
moot. Consequently, the Court denies Plaintiff’s claim with respect to Count III and
dismisses Count III as moot.
III. CONCLUSION
For the reasons above, Plaintiff’s motion is granted as to Count I and denied as to
Count III. Count III is dismissed as moot. An appropriate Order accompanies this Opinion.
/s/ Joel A. Pisano
JOEL A. PISANO, U.S.D.J.
Dated: November 24, 2014
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?