On May 9, 2017, the Appeals Court has affirmed a jury verdict finding a Commerce insured guilty of insurance fraud for falsely claiming under his comprehensive insurance that he had hit a moose or bison in the Jamaica Plain section of Boston. (Commonwealth v. Bryan Driscoll, 91 Mass. App. Ct. 474).
Mr. Bryan Driscoll was a young driver who purchased compulsory coverages and comprehensive for his 2001 Ford Explorer through the Edward F. Sullivan Insurance Agency of Dedham. The agency placed his coverage with Commerce Insurance.
At 4:00 A.M. on November 11, 2012 Boston Police responding to a report of a single-car crash found Mr. Driscoll’s Explorer on Allendale Road in the Jamaica Plain section of the City of Boston. The road borders the Allendale Farm and Allandale Woods, Boston second largest woodland. By the time the police had arrived, Mr. Driscoll had left the scene. The police observed that his Explorer appeared to have hit the curb, spun and crashed backwards into a stone wall. The vehicle had a couple of flat tires and was damaged all over with most damage to the rear end of the vehicle. The police could not find the driver.
Later in the day Mr. Driscoll filed an accident report (Exhibit 5) with his insurance company that included the following statement:
I was driving down Allendale St when out of nowhere a large animal (Bison or Moose) ran into street[.] We made contact and I swerved to gain control while vehicle turned[.] Animal got up and ran away[.]”
Under Mr. Driscoll’s comprehensive coverage, collision with a moose or bison would be covered, but a single-car collision with the curb and colliding with a stone wall would have no coverage.
Commerce doubts tale of moose or bison in Jamaica Plain street
An appraiser for Commerce inspected the vehicle and did not find any evidence of fur, blood or other biological debris consistent with Mr. Driscoll’s version of events. The vehicle was valued at $5,700 and determined to be a total loss. After the appraisal found no evidence of a collision with an animal, Mr. Driscoll’s claim was referred to Commerce’s Special Investigations Unit (“SIU”). Joshua Tucker, a claims adjuster in Commerce’s SIU reviewed Mr. Driscoll’s report of hitting a “bison or moose” and researched online whether any such animals may be in the area. He found that people had reported online that Allendale Farm may have some type of large cattle.
Allendale Farm was managed by John Lee. The farm did not have any bison, moose, or buffalo, but did at the time of the accident have two Scottish Highland steers. They were described as 2,000 pound animals, four feet long and four feet tall covered in long black hair with 30 inch horns on the sides of their head. Lee saw the steers every day and neither of them had gone missing on November 10. He also examined the perimeter fence around their pasture on November 11 and did not observe any breaches. Lee asked veterinarian Dr. Scott Groper to examine the animals to determine if they had been hit by a car or injured in any way. Dr. Groper examined the animals and did not observe any injuries.
Commerce assigned an accident reconstructionist, Michael Merolli to determine whether the incident had occurred in the way Mr. Driscoll claimed it had. He examined the vehicle and also did not find any evidence of an animal strike (hair, blood, fur or feces). He formed the opinion that the accident had not, occurred the way Mr. Driscoll had reported it.
In December of 2012 Mr. Tucker sent Mr. Driscoll a letter denying his claim and was giving him an opportunity to rebut or appeal the denial. After receiving no such appeal from Mr. Driscoll, Mr. Tucker referred the case to the Insurance Fraud Bureau (IFB).
The IFB assigned Marilyn Barrett as the lead investigator for Mr. Driscoll’s case. She made numerous attempts to contact Mr. Driscoll before sending him a letter requesting that he appear at the IFB. In February of 2014, Mr. Driscoll appeared at the IFB and had a brief conversation with Ms. Barrett.
Criminal complaints and three day jury trial
After completing her investigation, Ms. Barrett filed an application for criminal complaints in the West Roxbury division of the Boston Municipal Court on behalf of the IFB charging Mr. Driscoll with insurance fraud and attempted grand larceny.
The district attorney’s office called eight witnesses:
- Boston Police Officer Joseph Galvin;
- insurance agent Todd Sullivan;
- insurance claims adjuster Josh Tucker;
- accident reconstructionist Michael Merolli;
- Insurance Fraud Bureau investigator Marilyn Barrett, who identified Mr. Driscoll in court:
- John Lee, the manager of Allandale Farm;
- Scott Groper, the veterinarian who examined Allendale Farms animals; and
- insurance appraiser Sharae Sanchez.
Mr. Driscoll did not testify or call any witnesses.
His theory of defense was that, even if the statement he made was false, he was unaware that it was material to his auto insurance claim.
At the end of three days of trial the jury found Mr. Driscoll guilty of insurance fraud and attempted grand larceny. On both charges, the presiding justice sentenced Mr. Driscoll to six-month’s probation on each charge to be served concurrently.
Mr. Driscoll appealed his convictions to the Appeals Court claiming various evidentiary errors by the presiding justice denying him a fair trial and that the evidence presented did not prove he committed insurance fraud or attempted to commit grand larceny.
Appeals Court finds no material errors in insurance fraud conviction
The Appeals Court found that, based on the evidence, the jury were warranted in finding that Mr. Driscoll was aware that he had comprehensive insurance coverage and not collision coverage on his vehicle, and that he was aware of the differences between these coverages. It was also reasonable for the jury to infer that prior to the event in question, Mr. Driscoll understood that if he lost control of his vehicle and struck a wall, his insurance would not cover the loss, whereas if he struck an animal before hitting a wall the loss would be covered.
There was evidence that would permit the jury to find that an agent of the Sullivan Insurance Agency, through which Mr. Driscoll purchased his insurance explained the differences relating to comprehensive and collision coverage. And that the agency filled out the coverage selections page based on information provided by Mr. Driscoll and then transmitted it to Commerce, which in turn relied on the coverage selections page in initiating the inquiry that led to the criminal prosecution of Mr. Driscoll.
Mr. Driscoll made legal arguments relating to the admission of his coverage selection page and accident report which the Appeals Court rejected.
Court finds sufficient proof of insurance fraud to uphold conviction
Mr. Driscoll’s major claim was that the prosecution presented insufficient evidence to support the charges against him. The Appeals Court stated, “we consider the evidence, together with permissible inferences from that evidence, in the light most favorable to the Commonwealth and ‘determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original). The Court then listed the elements of the statutory crime of insurance fraud, G.L. c. 266, § 111B, the prosecution had needed to prove:
(1) Mr. Driscoll, in connection with a claim under a motor vehicle insurance policy issued by an insurer,
(2) with the intent to injure, defraud, or deceive such insurer,
(3) did knowingly present to it, or aid or abet in or procure the presentation to it,
(4) a notice, statement, or proof of loss,
(5) knowing that such notice, statement, or proof of loss contained a false or fraudulent statement or representation,
(6) of any fact or thing material to such claim.”
The Court then found that the trial testimony provided sufficient evidence from which the jury could find that all six elements were proved stating for each element:
- First, Mr. Tucker’s and Sullivan’s testimony established that Mr. Driscoll made a claim under his insurance policy for the incident on Allandale Road.
- Second, a jury could reasonably infer from the evidence that Mr. Driscoll intended to fit the incident under his policy by stating that he first struck an animal before swerving his vehicle into the wall. No evidence was found suggesting that an animal was involved in the incident; in fact, there was evidence negating that proposition.
- Next, based on the evidence, the jury could find that Mr. Driscoll made the accident report and presented it to Commerce, thus satisfying the third and fourth elements.
- Fifth, from the evidence regarding the differences between comprehensive and collision coverage, the jury could reasonably infer that Mr. Driscoll knew he would not be covered if he said he had hit a wall without first hitting an animal.
The Appeals Court found the jury could infer the final element, materiality, from the unusual nature of the accident, which involved striking a large animal, such as a “Bison or Moose,” so close in proximity to urban Boston, in addition to the testimony proving the other elements. The Court stated:
Ultimately, the jury could have inferred that Mr. Driscoll knowingly concocted a story that would bring his accident under the coverage of an insurance policy that otherwise did not cover a single-vehicle accident, and did so by stating that he first hit an animal before hitting a wall, which caused severe damage to his vehicle.
Attempt to commit grand larceny dismissed
While the Appeals Court did affirm the insurance fraud conviction, the Court ruled that the conviction for attempted grand larceny could not stand based upon a legal deficiency between the allegations of the complaint and the actual proof provided during the trial.