DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE OF FLORIDA,
Appellant,
v.
MICHAEL DELPRETE,
Appellee.
No. 4D20-1680
[September 22, 2021]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; William L. Roby, Judge; L.T. Case No. 56-2018-CF-000241-
A.
Ashley Moody, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellant.
David M. Lamos of Law Offices of David M. Lamos, Fort Pierce, and
Juan F. Torres III, Fort Pierce, for appellee.
FORST, J.
The State appeals the trial court’s order granting Appellee Michael
Delprete’s amended motion to dismiss. The State argues that the trial
court erred in: (1) misinterpreting section 817.234, Florida Statutes
(2016), by reading a justifiable reliance element into the statute, and (2)
finding the State’s traverse insufficient to establish a prima facie case of
insurance fraud. We agree with the State’s arguments and therefore
reverse the dismissal.
Background
Appellee was charged by Information with one count of “False
Insurance Claim $20,000 to $100,000,” stemming from a July 2016 motor
vehicle accident. In the accident, Appellee’s vehicle, a second vehicle, and
an electrical box sustained damage.
Appellee twice reported the accident to his insurer. Both times,
Appellee claimed his vehicle had been stolen and he was not driving his
vehicle at the time of the accident. However, in contrast to Appellee’s
representations, his insurer received a police report stating that Appellee
had been driving his vehicle at the time of the accident. Despite these
competing statements as to the driver’s identity, the insurer relied on the
police report and elected to pay out under Appellee’s collision coverage. 1
The State initially charged Appellee with “Leaving the Scene of an
Accident.” That case proceeded to a jury trial in January 2018. Appellee
testified at that trial that he was merely a passenger at the time of the
accident, as his uncle had been driving. Although the jury ultimately
acquitted Appellee of the Leaving the Scene charge, shortly thereafter—
based upon his testimony that his uncle had been driving the vehicle at
the time of the accident—the State opened a new case, charging Appellee
with insurance fraud.
Appellee filed an amended sworn motion to dismiss the insurance fraud
charge, pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). Id.
(“[T]he court may at any time entertain a motion to dismiss . . . [if t]here
are no material disputed facts and the undisputed facts do not establish
a prima facie case of guilt against the defendant.”). In the motion, Appellee
relied upon the deposition testimony provided by one of the insurer’s
claims managers.
The claims manager had testified that, although Appellee reported the
claim as a theft, the insurer elected to pay out under Appellee’s collision
coverage. 2 The claims manager had further testified that Insurer would
have handled the claim as a collision loss even if Appellee’s uncle had been
the driver.
Appellee thus argued that, because under section 817.234, Florida
Statutes (2016), any alleged misrepresentation “must be material and it
1 Background information is taken from the trial court order’s “Established and
Undisputed Facts” section. In the order, the court mistakenly asserted that the
insurer had paid out under Appellee’s comprehensive coverage rather than his
collision coverage.
2 The claims manager later testified that if Appellee or his uncle, rather than a
thief, was the driver at the time of the accident, this would have affected
Appellee’s insurance coverage and the insurer’s ensuing payout. In
circumstances involving theft, comprehensive coverage would have applied,
providing an insurance payout solely for damage to the stolen vehicle. On the
other hand, in a standard accident involving a driver with “permissive use of the
vehicle,” collision coverage would have applied, providing an insurance payout
for damage to the insured vehicle, other involved vehicles, and damaged property.
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must have induced justifiable reliance on the statement that led to the
payment of the claim,” he was entitled to dismissal of the insurance fraud
charge, as “[n]o reliance was made upon the statements of [Appellee] by
the insurance carrier.”
The State filed a traverse, responding to every paragraph contained
within Appellee’s amended motion to dismiss. The State’s traverse
essentially argued that a charge of insurance fraud did not require an
element of justifiable reliance.
The trial court later held a hearing on the amended motion to dismiss.
At the hearing, Appellee repeated his argument that—absent some
demonstrated reliance on his alleged misstatements—an essential element
of the crime was missing, and dismissal was proper. The State, in turn,
asserted it had alleged sufficient facts and legal argument to overcome
Appellee’s motion to dismiss.
In support of the traverse’s sufficiency, the State called the insurer’s
claims manager to testify at the hearing. The claims manager’s testimony
largely duplicated his earlier deposition statement, as he again testified
that the insurer had not relied upon Appellee’s alleged misstatements in
paying out Appellee’s insurance claim under his collision coverage, and
Appellee’s insurance claim would have been processed under the policy’s
comprehensive coverage if the insurer had relied upon his statements.
Moreover, the claims manager testified that whether an insurance claim is
processed under collision or comprehensive coverage “matter[ed]” to the
insurer.
The trial court later entered a detailed order granting Appellee’s
amended motion to dismiss. The court found the State’s traverse “lacking
in citing material facts to dispute the facts set forth” in Appellee’s motion,
though it acknowledged that at least one paragraph in the traverse did
“assert relevant disputed facts.”
Despite this acknowledgement, because the trial court deemed “[t]he
central issue . . . [to be] whether or not the statements made by [Appellee]
to [Insurer] for damages were material to the insurance company paying
the claims,” and because there was no dispute that Insurer had handled
the claim under Appellee’s collision coverage rather than his
comprehensive coverage, the court found that dismissal was appropriate.
The State timely appealed.
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Analysis
“Because a motion to dismiss pursuant to rule 3.190(c)(4) requires the
lower court to make a pretrial determination of the law of the case when
the facts are not in dispute, the standard of review on appeal is de novo.”
State v. Benjamin, 187 So. 3d 352, 354 (Fla. 4th DCA 2016) (quoting State
v. Hinkle, 970 So. 2d 433, 434 (Fla. 4th DCA 2007)). Similarly, “issues of
statutory interpretation are reviewed de novo.” State v. Sampaio, 291 So.
3d 120, 123 (Fla. 4th DCA 2020).
A. Insurance Fraud’s Elements
“In construing the meaning of a statute, we first look at its plain
language.” Montgomery v. State, 897 So. 2d 1282, 1285 (Fla. 2005).
“When the language of the statute is clear and unambiguous and conveys
a clear and definite meaning, there is no occasion for resorting to the rules
of statutory interpretation and construction; the statute must be given its
plain and obvious meaning.” Id. ( quoting Holly v. Auld, 450 So. 2d 217,
219 (Fla. 1984)).
The “false and fraudulent insurance claims” statute provides in
pertinent part:
(1)(a) A person commits insurance fraud punishable as
provided in subsection (11) if that person, with the intent to
injure, defraud, or deceive any insurer:
1. Presents or causes to be presented any written or oral
statement as part of, or in support of, a claim for payment or
other benefit pursuant to an insurance policy or a health
maintenance organization subscriber or provider contract,
knowing that such statement contains any false, incomplete,
or misleading information concerning any fact or thing material
to such claim[.]
§ 817.234(1)(a)1., Fla. Stat. (2016) (emphases added). Noticeably absent
from the statute is any “reliance” element—whether justifiable or
otherwise. Indeed, the statute’s plain language supports the State’s
position that reliance is not an element of a section 817.234 violation.
Florida case law further supports this contention. In Cox v. State, 443
So. 2d 1013 (Fla. 5th DCA 1983), a defendant twice called his insurance
company and reported the theft of a trailer which he knew had not been
stolen. Id. at 1014. The defendant later called his insurer and requested
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to withdraw the claim. Id. Despite his insurer never paying any money
on the claim, the State charged the defendant with violating section
817.234(1)(a), Florida Statutes (1981). Id. At trial, defense counsel
requested—and the trial court provided—a jury instruction on attempt. Id.
The jury subsequently convicted the defendant of “attempted false and
fraudulent insurance claim.” Id.
On appeal, the Fifth District held that “[a]ttempted making of a false
and fraudulent insurance claim is a nonexistent crime in Florida, since
attempt is encompassed in the substantive offense itself.” Id. at 1015. As
further noted by the court, “the substantive crime [of insurance fraud
under section 817.234(1)(a)] clearly encompasses acts which are
prepa[ra]tory or preliminary to presenting a false claim to an insurance
company.” Id. at 1014. Thus, the court remanded for the defendant to be
“retried for the offense set forth in section 817.234.” Id. at 1015.
The Fifth District’s remand to the trial court—even though the insurer
in that case never paid the claim—demonstrates an implicit approval of an
insurance fraud charge under such circumstances. Though the Fifth
District analyzed the insurance fraud statute’s 1981 version, and the
statute has since been amended multiple times, the only material changes
to the statute have been clarifications or updates addressing the degree of
punishment, with the statute’s elements remaining nearly identical.
Compare id. at 1014 (quoting § 817.234(1)(a), Fla. Stat. (1981)), with §
817.234(1)(a), Fla. Stat. (2016).
Here, like in Cox, the insurer did not pay out any insurance proceeds
connected with an alleged misstatement. Nonetheless, the argument that
the insurer did not ultimately rely on Appellee’s statements is immaterial
to the insurance fraud charge’s validity. The statute simply does not
mandate dismissal merely because an insurer did not act on an alleged
misrepresentation. To read the statute otherwise would negate Cox’s
assertion that attempt is encompassed within the insurance fraud statute.
443 So. 2d at 1015. Consequently, we hold the trial court erred in
dismissing Appellee’s insurance fraud charge based upon a non-existent
reliance element.
B. The Traverse’s Sufficiency
Having determined reliance is not an element of a section 817.234(1)(a)
violation, we next examine whether the State’s traverse was legally
sufficient.
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Under Florida Rule of Criminal Procedure 3.190(d), “[a] motion to
dismiss under subdivision (c)(4) . . . shall be denied if the [S]tate files a
traverse that, with specificity, denies under oath the material fact or facts
alleged in the motion to dismiss.” Fla. R. Crim. P. 3.190(d) (emphasis
added). In a traverse, “[t]he State need only specifically dispute a material
fact alleged by the defendant or add additional material facts that meet the
minimal requirement of a prima facie case. If a material fact is disputed,
denial of the motion to dismiss is mandatory.” State v. Kalogeropolous,
758 So. 2d 110, 112 (Fla. 2000). So long as discernable disputed facts
exist, a prima facie case has been met. See State v. Taylor, 16 So. 3d 997,
1001–02 (Fla. 5th DCA 2009).
Here, the trial court deemed the undisputed fact that the insurer had
disregarded Appellee’s statements and paid the claim under Appellee’s
collision coverage to be determinative. Although the trial court took issue
with several portions of the State’s traverse, the trial court did so in the
context of a non-existent statutory element of justifiable reliance,
notwithstanding its acknowledgment that the State’s traverse at least in
part asserted relevant disputed facts. Because section 817.234(1)(a) does
not contain a reliance element (justifiable or otherwise), we necessarily
hold that the trial court erred in finding the traverse insufficient based on
its erroneous interpretation of this statute.
Reversing the dismissal is appropriate here because: (1) “intent or state
of mind is not an issue to be decided on a motion to dismiss under Rule
3.190(c)(4),” State v. Book, 523 So. 2d 636, 638 (Fla. 3d DCA 1988); (2) the
parties do not dispute that Appellee presented an oral statement in
connection with his insurance policy under section 817.234(1)(a); and (3)
the parties’ disagreement as to any alleged misstatement’s materiality
constituted a dispute concerning material facts. As the State asserted a
prima facie case of insurance fraud under the statute, the fact finder must
determine if Appellee’s alleged misstatements were “information
concerning any fact or thing material to [Appellee’s insurance] claim.”
Conclusion
The trial court erred in reading a non-existent justifiable reliance
element into section 817.234, and therefore erroneously found the State’s
traverse legally insufficient. Accordingly, we hold that the trial court erred
in granting Appellee’s amended motion to dismiss. We reverse and remand
for reinstatement of the insurance fraud charge, and for the entry of an
order denying Appellee’s rule 3.190(c)(4) motion.
Reversed and remanded with instructions.
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CIKLIN and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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