Suit charges systematic insurance fraud
Sunday, April 30, 2006
By SEAN REILLY Washington Bureau
SHADY SIDE, Md. -- When a storm surge from Hurricane Isabel washed through this placid Chesapeake Bay community in September 2003, it didn't just undermine the foundation of Jennifer Dieux's one-story home.
It also gutted her opinion of the National Flood Insurance Program.
"Awful," is how Dieux last week characterized her family's experience. Although the house was so badly damaged that she and her husband eventually had it demolished, their flood insurance policy paid them only about half of the $109,000 they carried in coverage, she said.
Together with two children, the couple is still living in a government-issued trailer. To rebuild, Dieux said, they had to borrow approximately $180,000.
Dieux's story might seem like a routine insurance gripe -- except that she and her husband are now plaintiffs in a lawsuit alleging that dozens of flood insurance policyholders were victims of a systematic fraud aimed at shortchanging their Isabel claims.
The suit, filed last June in federal court in Maryland, alleges that the Federal Emergency Management Agency, a contractor that helps run the flood insurance program, and various insurance companies and adjusters -- including Mobile-based Pilot Catastrophe Services Inc. -- were all part of a scheme to pay claimants less for their covered losses than their policies entitled them to.
Among other tactics, the suit alleges, adjusters falsely told claimants that their policies did not pay to repair moisture damage, did not pay for sales tax on covered items and strictly limited compensation for mold damage.
Should the plaintiffs prevail -- the case is still in its early stages -- the impact on the flood insurance program nationwide would be "dramatic," said Michael Greenberger, a University of Maryland law professor who reviewed the suit at the Press-Register's request, but is otherwise unconnected with the case.
Already, at least one Mobile law firm, Deakle, Sholtis & Hamil LLC, is investigating similar "low-balling" complaints in Alabama and Mississippi following last year's Hurricane Katrina, according to attorney Jubal Hamil. He said he expects to pursue litigation, although no suit has been filed yet.
Others say the Maryland suit could drive up costs for the taxpayer-backed flood insurance program, which is already bleeding cash. At a two-day court hearing last week, defense attorney Stacey Moffett warned that an increase in covered flood claims would come out of "the pocket of the federal treasury."
As outlined in court filings, the suit charges that Computer Sciences Corp., a California-based contractor working for FEMA, trained sales agents to tell would-be flood insurance purchasers that their homes would be restored to pre-flood condition in the event of a claim.
At the same time, the suit states, the company was tutoring adjusters on specific techniques to reduce payouts after claims were filed. As a result, some claimants got only pennies on the dollar or were forced into bankruptcy.
"It's about flood victims who became flood policy victims," Martin Freeman, the lead plaintiffs' attorney, said in an interview last week. The suit seeks more than $2 billion on behalf of some 77 individuals and families.
A Computer Sciences Corp. representative referred questions to FEMA, where spokesman Butch Kinerney said the agency could not comment on pending litigation.
Suit charges systematic insurance fraud
Both the company and FEMA are urging U.S. District Judge Peter Messitte to throw out the suit on the grounds that the doctrine of "sovereign immunity" bars most legal challenges to the federal government or its agents.
In separate filings, insurers and adjusters are also arguing for the suit's dismissal based on technical reasons. After last week's hearing, a ruling from Messitte on whether to let the bulk of the suit go forward could be months away.
James Crosby, a Mobile attorney for Pilot Catastrophe Services, could not be reached for comment.
With more than 40,000 properties covered in Alabama alone, the federally subsidized flood insurance program provides up to $250,000 to repair flood damage to homes, along with a $100,000 maximum for damaged contents.
Following Hurricanes Katrina, Rita and Wilma last year, the program has been swamped with almost 226,000 claims, according to FEMA. Although it is supposedly self-supporting, a taxpayer-funded bailout totaling more than $20 billion appears virtually inevitable.
Some 2½ years ago, a storm of a different sort ensued after Isabel lashed Maryland and other mid-Atlantic coastal states. Amid widespread complaints, FEMA set up a first-ever task force to review disputed claims.
Out of almost 2,300 claimants who sought a second look, the task force concluded that almost half warranted further payment, according to a review by the Government Accountability Office, a congressional watchdog agency.
But the suit charges that other flood victims never learned of the task force review or were given the impression that they risked getting less money. Those who did seek a review often were denied further payment or given "a minuscule" amount above what they had already received, the suit states.
Whatever the outcome, the allegations underscore FEMA's well-documented reliance on private companies to run what is on paper a government program. To critics, it's a partnership that doesn't necessarily benefit policyholders.
Under what is known as the "write your own" program, for example, more than 90 percent of policies are sold by private insurers who frequently also provide homeowner's coverage. At the American Insurance Association, a Washington, D.C., trade group representing property and casualty insurers, Assistant General Counsel Eric Goldberg cited the arrangement as a major reason why the number of flood insurance policies has soared from a few hundred thousand in the 1970s to almost 5 million today.
But others see a potential conflict of interest when the same carrier provides both flood insurance and a homeowner's policy that may cover other storm damage.
One of them is Steve Kanstoroom, a Maryland fraud detection expert whose research into the handling of Isabel-related flood insurance claims underlies many of the allegations in the Maryland lawsuit.
Asked why insurers would have an incentive to lowball a flood insurance claim, Kanstoroom, who is consulting on the litigation, said they fear setting a precedent for claims under the homeowner's policy.
"They're concerned that if they fairly pay the flood claims -- Sheetrock at $2.20 per square foot, for example -- the insured will expect them to pay the same $2.20 where a tree fell through their roof." And the money to pay that latter claim, Kanstoroom said, "comes out of their pockets."
Goldberg called the allegation "ridiculous." Not only are most adjusters honest and hard-working, he said, "an insurance policy is a contract that ... governs the terms of the relationship between the parties. These allegations of lowballing really don't make any sense."
The conflict of interest questions don't end there, however.
In testimony prepared for a 2003 congressional hearing, New Orleans attorney Gerald Nielsen told lawmakers that he legally represented virtually every major write-your-own company.
At the same time, Nielsen said he taught "the workings" of the flood insurance program to adjusters, insurance agents and even employees in FEMA's inspector general office , which was responsible for investigating problems.
Nielsen, who is defending a claims examiner in the Maryland case, could not be reached for comment Thursday or Friday.
For then-Maryland Insurance Commissioner Alfred Redmer Jr., Nielsen's multiple roles were troubling enough to raise in a March 2005 letter to his Alabama counterpart, Walter Bell, and a dozen other state insurance regulators around the country.
Among other concerns surrounding the flood insurance program, Redmer wrote, were numerous reports of Isabel victims who "received incorrect policy information from people they believed to be federal officials, yet who were actually government contractors often wearing blue FEMA jackets."
The alleged misinformation frequently involved key policy rights, Redmer continued, and ultimately led to wrongful denial of coverage.
"Since many victims had no reason to doubt apparent government officials, they never complained," the letter says.
It is unclear whether Bell responded or attempted to follow up. After saying he would check, spokesman Ragan Ingram, the Alabama department's deputy commissioner, did not return phone calls last week. Bell also could not be reached.
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http://femainfo.us/Links/Complaint.final.pdf
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http://femainfo.us/Links/Complaint.final.htm

