State v. Fleischman

Justice LONG,

concurring.

Because I do not believe that, in enacting N.J.S.A. 20:21-4.4 to -4.7, the Legislature intended to criminalize every false document submitted by a defendant in connection with a single insurance claim, I write separately.

N.J.S.A. 2C:21 — 4.6(a) provides, in relevant part, that a person is guilty of the crime of insurance fraud if:

the person knowingly makes, or causes to be made, a false, fictitious, fraudulent, or misleading statement of material fact in ... any record, bill, claim or other document, in writing, electronically, orally or in any other form, that a person attempts to submit, submits, causes to be submitted, or attempts to cause to be submitted as part of, in support of or opposition to or in connection with: (1) a claim for payment, reimbursement or other benefit pursuant to an insurance policy____

At issue is whether each false claim, each false document, or each false statement, submitted by an insurance claimant, constitutes the act of insurance fraud proscribed by that statute.

Like the majority, I agree that the statutory definition, standing alone, is ambiguous and requires interpretation. I part company from my colleagues in connection with their concomitant conclusions that: (1) the legislative intent cannot be gleaned from the statute as a whole; and (2) that extrinsic evidence is of “little *555assistance” in resolving the issue before us. I also disagree with the notion that our decision in Merin v. Maglaki, 126 N.J. 430, 599 A.2d 1256 (1992), sheds light on the subject.

My difficulty with the majority opinion begins with its failure to account for all aspects of N.J.S.A. 20:21-4.6. In particular, that statute includes an aggregation provision that, to me, is the critical context clue in this case:

b. Insurance fraud constitutes a crime of the second degree if the person knowingly commits five or more acts of insurance fraud, including acts of health care claims fraud pursuant to section 2 of P.L. 1997, c. 353 and if the aggregate value of property, services or other benefit wrongfully obtained or sought to be obtained is at least $1,000. Otherwise, insurance fraud is a crime of the third degree. Each act of insurance fraud shall constitute an additional, separate and distinct offense, except that five or more separate acts may be aggregated for the purpose of establishing liability pursuant to this subsection. Multiple acts of insurance fraud which are contained in a single record, bill, claim, application, payment, affidavit, certification or other document shall each constitute an additional, separate and distinct offense for purposes of this subsection.
[N.J.S.A. 20:21-4.6 (emphasis added) (internal citation omitted).]

In common parlance, to aggregate is to add together or total up. The very use of the term “aggregate value” clearly indicates that the Legislature contemplated that each criminal act of insurance fraud has a monetary value, otherwise there would be nothing to aggregate for the purposes of establishing liability by meeting the $1,000 threshold. If that is so, only a fraudulent claim can be actionable, not each document or lie submitted in support of such a claim. The final section of N.J.S.A. 2C:21-4.6 blends seamlessly with that view. It assures that there will be no “free” claims— rather multiple false claims contained in a single document, for example, the hypothetical provided by the majority opinion regarding a fur coat in the trunk of a stolen ear, each with a monetary value, will constitute distinct offenses.

It may be that Merin properly interpreted the statute before it — the New Jersey Insurance Fraud Prevention Act (IFPA), N.J.S.A. 17:33A-1 to -14. However, I note that the IFPA was civil in nature, thus implicating a different interpretative rationale. More importantly, it is quite distinct from N.J.S.A. 20:21-4.6 insofar as it does not include an aggregation provision. Those *556differences between the IFPA and N.J.S.A. 2C:21-4.6 are critical and substantive and render Merin of little value here.

On the contrary, the Health Care Claims Fraud Act, N.J.S.A. 2C:21-4.2 to -4.3, passed in 1997, five years after Merin, is instructive. In defining the prohibited acts, that statute uses identical language to that before us:

As used in this act: “Health care claims fraud” means making, or earning to be made, a fake, fictitious, fraudulent, or misleading statement of material fact in, or omitting a material fact from, or causing a material fact to be omitted from, any record, bill, claim or other document, in writing, electronically or in any other form, that a person attempts to submit, submits, causes to be submitted, or attempts to cause to be submitted for payment or reimbursement for health care services.
[N.J.S.A. 21:4-2.]

The Health Care Claims Fraud Act also has an aggregation provision similar the one before us:

c. A person, who is not a practitioner subject to the provisions of subsection a. or b. of this section, is guilty of a crime of the second degree if that person knowingly commits five or more acts of health care claims fraud and the aggregate pecuniary benefit obtained or sought to be obtained is at least $1,000. In addition to all other criminal penalties allowed by law, a person convicted under this subsection may be subject to a fine of up to five times the pecuniary benefit obtained or sought to be obtained.
e. Each act of health care claims fraud shall constitute an additional, separate and distinct offense, except that five or more separate acts may be aggregated for the purpose of establishing liability pursuant to subsection c. of this section. Multiple acts of health care claims fraud which are contained in a single record, bill, claim, application, payment, affidavit, certification or other document shall each constitute an additional, separate and distinct offense for purposes of this seetion.1
[N.J.S.A. 20:21-4.3.]

The one difference between the statutes is that the Health Care Claims Fraud Act has a legislative history that is neither sparse nor equivocal. Upon its enactment, that statute was accompanied by a full statement of the Senate Health Committee:

Under this bill, it would be a crime of the second degree when a practitioner knowingly submits, or attempts to submit, one fraudulent claim or when a person *557who is not a practitioner submits, or attempts to submit, five or more fraudulent claims with an aggregate amount of at least $1,000. It would be a crime of the third degree when a person who is not a practitioner knowingly submits, or attempts to submit, one fraudulent claim. The bill also creates lesser offenses applicable to reckless, rather than knowing, fraudulent conduct.
[S. Health Comm., Statement to S. No. 2270, at 1 (1997), cited in, N.J.S.A. 2C:21-4.2 emt. (2005).]

Thus, in describing the import of a statute nearly identical to the one before us, the Legislature has declared that it criminalizes a fraudulent “claim” and not the individual documents or lies under-girding it.

In that respect, it is well-settled that when the Legislature uses the same term in cognate statutes (and there is no question but that the Health Care Fraud Claims Act and N.J.S.A. 2C:21-6 are of a piece), the term should be given the same meaning in both. G.S. v. Dept. of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 172, 723 A.2d 612 (1999); State v. Federanko, 26 N.J. 119, 129, 139 A.2d 30 (1958); State v. Brown, 22 N.J. 405, 415, 126 A.2d 161 (1956). There is simply nothing in the statutes to suggest that the Legislature intended the identical definitions in N.J.S.A. 2C:21-4.6 and the Health Care Claims Fraud Act to mean different things. Because the Legislature has spoken regarding the meaning of the language in the Health Care Claims Fraud Act and declared the proscribed conduct to be the fraudulent claim and nothing less, that is the meaning to be ascribed to the statute in this ease.

Finally, even if I were to agree that the majority view is a plausible one, the rule of lenity would require that this penal statute be strictly construed in favor of defendants, thus compelling the interpretation I here advance. State v. Alexander, 136 N.J. 563, 643 A.2d 996 (1994); State v. Sutton, 132 N.J. 471, 625 A.2d 1132 (1993). For those reasons, I concur only in the result reached by the majority.

Justice ALBIN joins in this opinion. *558For affirmance — Chief Justice ZAZZALI and Justices LONG, LaVECCHIA, ALBIN, WALLACE and RIVERA-SOTO — 6.

Opposed — None.

The second sentence of § (e) was added in 2003 when the Legislature enacted N.J.S.A. 2C:21-4.6.