N.J. Model Criminal Jury Charge, N.J.S.A. 2C:21-4.6a(2

Revised 3/14/16

INSURANCE FRAUD: MAKING FALSE STATEMENT (APPLICATION)

N.J.S.A. 2C:21-4.6a(2)

The defendant is charged in count _____ of the indictment with insurance fraud.

[READ COUNT OF INDICTMENT]

Our statutes provide that:

A person is guilty of a crime...if that 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, an application to obtain or to

renew an insurance policy.

In order to convict defendant, the State must prove beyon d a reasonable doubt the

following four elements:

(1) that the defendant knowingly made ( caused to be made) a

false, fictitious, fraudulent, or misleading statement of fact;

(2) that the false, fictitious, fraudulent or misleading statement

of fact was (made) ( caused to be made) in a record, bill,

claim, or other document, and that the statement was made

in writing, electronically, orally or in any other form;

(3) that the defendant (CHOOSE APPROPRIATE)

(submitted)(caused to be submitted)(attempted to

submit)(or attempted to cause to be submitted) the false,

fictitious, fraudulent or misleading statement as (part of)(in

support of)(in opposition to)(in connection with) a n

application to obtain or to renew an insurance policy;

(4) that the false, fictit ious, fraudulent or misleading statement

was material.

The first element that the State must pr ove beyond a reasonable doubt is that the

defendant knowingly CHOOSE ONE : (made) (caused to be made) a false, fictitious,

fraudulent or misleading statement.

A person acts knowingly with respect to the nature of his/her conduct or the

attendant circumstances if he/she is aware that his/her conduct is of that nature, or that

such circumstances exist, or he/she is aware of a high probability of their existence. A

person acts knowingly with respect to a result of his/her conduct if he/she is aware that it

INSURANCE FRAUD: MAKING FALSE STATEMENT (APPLICATION)

N.J.S.A. 2C:21-4.6a(2)

is practically certain that his/her conduct will cause such a res ult. "Knowing," "with

knowledge," or equivalent terms have the same meaning. Knowingly is a state of mind

and cannot be seen and can only be determined by inference from conduct, words or acts.

Therefore, it is not necessary that witnesses be produced by the State to testify that a

defendant said that he/she knowingly did something. His/Her knowledge may be

gathered from his/her acts and his/her conduct and from all he/she said and did at the

particular time and place and from all the surrounding circumstances reflected in the

testimony [and evidence adduced at trial].

The second element requires the State to prove beyond a reasonable doubt that the

defendant (made)(caused to be made) a false, fictitious, fraudulent or misleading

statement of material fact in a record, bill, claim or other document. The statement may

have been made in writing, electronically, orally or in any other form.

The third element the State must prove beyond a reasonable doubt is that the

defendant (submitted) (caused to be submitted) (attempted1 to submit)(attempted to cause

to be submitted ) the statement (as part of ) (in connection with )(in support of)(in

opposition to) an application to obtain or to renew an insurance policy.

To obtain means to bring about a transfer or purported transfer of a legal interest

in property.2

Property means anything of value, including real estate, tangible and intangible

personal property, contract rights, choses in action and o ther interests in or claims to

wealth, and financial instruments.3

An application to renew an insurance policy means an application to an insurer to

replace or supersede a policy previously issued and delivered by the same insurer to the

applicant at the e nd of the policy period or an application to an insurer for the issuance

and delivery of a certificate or notice extending the term of the policy beyond its policy

period or terms.4

"Insurance policy" means the instrument, in writing, electronically or in any other

form, in which are set forth the terms of any certificate of insurance, binder of coverage,

1 If attempt is charged, the jury should be instructed from the Model Jury Charge, Attempt

N.J.S.A. 2C:5-1, as attempt requires a purposeful mental state.

2 N.J.S.A. 2C:20-1(f).

3 N.J.S.A. 2C: 20-1(g).

4 N.J.S.A. 17:29C-6(E); N.J.S.A. 17:33B-33. See also Barbera Corp. v. Bob Maneely Ins.

Agency, 197 N.J.Super. 339, 344 (App. Div. 1984).

INSURANCE FRAUD: MAKING FALSE STATEMENT (APPLICATION)

N.J.S.A. 2C:21-4.6a(2)

contract of insurance or contract of re -insurance, issued by an insurance company,

including, but not limited to, a State -assigned risk plan, plan of inde mnity protection

provided by or on behalf of a joint insurance fund or benefit plan, motor club service

plan, or guaranty bond, surety bond, cash bond or any other alternative to insurance

authorized or permitted by the State of New Jersey.5

“Insurance company” means any person, company, corporation, unincorporated

association, partnership, professional corporation, agency of government and any other

entity authorized or permitted to do business in New Jersey, subject to regulation by the

State, or incorporated or organized under the laws of any other state of the United States

or of any foreign nation or of any province or territory thereof, to indemnify another

against loss, damage, risk or liability arising from a contingent or unknown event.

Insurance company includes, but is not limited to, an insurance company as that term is

defined in section 3 of P.L. 1983, c. 320 (C.17:33A-3), self-insurer, re-insurer, reciprocal

exchange, inter -insurer, hospital, medical or health service corporation, health

maintenance organization, surety, assigned risk plan, joint insurance fund, and any other

entity legally engaged in the business of insurance as authorized or permitted by the State

of New Jersey, including but not limited to any such entity incorporated or or ganized

under the laws of any other state of the United States or of any foreign nation or of any

province or territory thereof.6

[CHARGE APPROPRIATE SECTION IF APPLICABLE:

Insurance company includes, but is not limited to, an insurance company which

can b e in the form of any corporation, association, partnership, reciprocal exchange,

interinsurer, Lloyd's insurer, fraternal benefit society or other person engaged in the

business of insurance pursuant to Subtitle 3 of Title 17 of the Revised Statutes (C. 17:17-

1 et seq.), or Subtitle 3 of Title 17B of the New Jersey Statutes (C. 17B:17-1 et seq.); or

any medical service corporation operating pursuant to P.L. 1940, c. 74 (C. 17:48A-1 et

seq.); or any hospital service corporation operating pursuant to P.L. 1938, c. 366 (C.

17:48-1 et seq.); or any health service corporation operating pursuant to P.L. 1985, c. 236

(C. 17:48E-1 et seq.); or any dental service corporation operating pursuant to P.L. 1968,

c. 305 (C. 17:48C-1 et seq. ); or any dental plan organization operating pursuant to P.L.

5 N.J.S.A. 2C:21-4.5.

6 Id.

INSURANCE FRAUD: MAKING FALSE STATEMENT (APPLICATION)

N.J.S.A. 2C:21-4.6a(2)

1979, c. 478 (C. 17:48D-1 et seq. ); or any insurance plan operating pursuant to P.L.

1970, c. 215 (C. 17:29D-1); or the New Jersey Insurance Underwriting Association

operating pursuant to P.L. 1968, c. 129 (C. 17:37A-1 et seq. ); or the New Jersey

Automobile Full Insurance Underwriting Association operating pursuant to P.L. 1983, c.

65 (C. 17:30E-1 et seq.) and the Market Transition Facility operating pursuant to section

88 of P.L. 1990, c. 8 (C. 17:33B-11); or any risk retention group or purchasing group

operating pursuant to the "Liability Risk Retention Act of 1986," 15 U.S.C. § 3901 et seq.

7, or a self -insurer, re -insurer, reciprocal exchange, inter -insurer, hospital, medical or

health service corporation, health maintenance organization, surety, assigned risk plan,

joint insurance fund, and any other entity legally engaged in the business of insurance as

authorized or permitted by the State of New Jersey, including but not limited to any such

entity incorporated or organized under the laws of any other state of the United States or

of any foreign nation or of any province or territory thereof.8]

[RESUME MAIN CHARGE AND CHARGE IN ALL CASES]

The fourth element the State must prove beyond a reasonable doubt is that the

statement made was material.

An insured's misstatement is material if it could have reasonably affected the

decision by an insurance company t o provide insurance coverage to a claimant or the

decision to provide any benefit pursuant to an insurance policy or the decision to provide

reimbursement or the decision to pay a claim .9 (THE COURT SHOULD TAILOR

THIS PORTION OF THE CHARGE TO THE FACTS IF MATERIALITY IS

DISPUTED) 10

The statement of fact is material if it could have affected the decision to issue an

insurance policy or the decision to renew an insurance policy. (THE COURT SHOULD

TAILOR THIS PORTION OF THE CHARGE TO THE FACTS IF

MATERIALITY IS DISPUTED)11

7 P.L. 1983, c. 320 (sec. 3)(N.J.S.A. 17:33A-3).

8 N.J.S.A. 2C:21-4.5.

9 State v. Goodwin, 224 N.J. 102, 115 (2016).

10 See Model Jury Charges, Criminal, Perjury , N.J.S.A. 2C:28-1b. This paragraph should

be tailored to the appropriate facts of the case if the issue regarding materiality is disputed or falls

outside the examples cited. The New Jersey Supreme Court has consistently held that the

subjective good faith of the applicant regarding an “innocent” mistake was not r elevant to the

materiality determination. Palisades Safety and Ins. Ass’n v. Bastien, 175 N.J. 144, 151 (1995).

11 This definition has been adapted from the definition of materiality found in the perjury

INSURANCE FRAUD: MAKING FALSE STATEMENT (APPLICATION)

N.J.S.A. 2C:21-4.6a(2)

[CHARGE IF APPLICABLE]

(Statutory Inference regarding signature or initials)12

If you find that ________ signed or initialed a n application, bill, claim, affidavit,

certification, record or other document, then you may infer that he/she read and reviewed

the application, bill, claim, affidavit, certification, record or other document.

An inference is a deduction of fact that may be drawn logically and reasonably

from another fact or group of facts established by the evidence. Whether or not an

inference should be drawn is for you to decide using your own common sense,

knowledge and everyday experience. Ask yourselves is it probable, logical and

reasonable. However, you are never required or compelled to draw an inference. Yo u

alone decide whether the facts and circumstances shown by the evidence support an

inference and you are always free to draw or not to draw an inference. If you draw an

inference, you should weigh it in connection with all the other evidence in the case

keeping in mind that the burden of proof is upon the State to prove all the elements of the

crime beyond a reasonable doubt.

[CHARGE IF APPLICABLE]

(Multiple fraudulent statements alleged in a single narrative or document)

The State alleges that the defen dant made multiple statements that are alleged to

be false, fictitious, fraudulent or misleading which are contained in the same narrative or

document relating to the claim. Multiple fraudulent statements may be considered by you

to constitute multiple ac ts of insurance fraud only if the alleged fraudulent statement

relates to a conceptually distinct claim. (Here, the State alleges the claims are distinct:

Instruct the jury as to the nature of the State’s claim. Charge the defendant’s version, if

requested.)

If the multiple statements made in a single narrative or document relate to a claim

that is conceptually similar, it may then constitute only a single act of insurance fraud. 13

model jury charge. See Model Jury Charges, Criminal, Perjury, N.J.S.A. 2C:28-1b. It should not

be considered to be exhaustive. This paragraph should be tailored to the appropriate facts of the

case if the issue regarding materiality is disputed or falls outside the examples cited. The New

Jersey Supreme Court has consistently held that the subjective good faith of the applicant

regarding an “innocent” mistake was not relevant to the materiality determination. Palisades

Safety and Ins. Ass’n v. Bastien, 175 N.J. 144, 151 (1995).

12 N.J.S.A. 2C:21-4.6(c).

13 State v. Fleischman , 189 N.J. 539, 554 (2007). As an example where multiple false

statements in a single narrative would constitute separate acts, Fleischman points to the situation

INSURANCE FRAUD: MAKING FALSE STATEMENT (APPLICATION)

N.J.S.A. 2C:21-4.6a(2)

Thus, you must unanimously find that the State has met its burden to prove the four

elements that I have defined for you as to a particular statement contained in any single

narrative or document. 14 In other words, all twelve of you must agree that a particular

statement contained in the narrative or document satisfies all four elements beyond a

reasonable doubt in order to find the defendant guilty.

[RESUME MAIN CHARGE]

If the State has failed to prove any of these elements beyond a reasonable doubt,

then you must find defendant not guilty of the crime of insurance fraud. If you find that

the State has proven beyond a reasonable doubt each of the four elements, then you must

find defendant guilty of the crime of insurance fraud. If you find the defendant guilty of

the crime of insurance fraud, you must then go on to consider the following.

[CHARGE IF SECOND DEGREE INSURANCE FRAUD IS ALLEGED]

If you find that the State has proven the defendant guilty of insurance fraud, you

must then consider if the defendant knowingly committed five or more acts of insurance

fraud that had an aggregate value of at least one thousand dollars.

A section of our statute provides that the more serious crime of insurance fraud is

if the defendant knowingly committed five or more acts of insurance fraud that had an

aggregate value of at least one thousand dollars.15

I have already defined the mental state of knowingly for you.

If a statement is contained in a separate document or narrative, even if it is related

to a single application, the statement contained in the separate document or narrative m ay

where a false statement is made that an automobile was stolen, and that a false claim was made

that a fur coat was in the automobile at the time of the theft. This would constitute separate acts of

insurance fraud, even if contained in a single narrative. Id. at 546-547 n.3.

14 The Committee’s view is that this specific unani mity charge is required as to a particular

statement pursuant to State v. Frisby, 174 N.J. 583 (2002) and State v. Gentry, 183 N.J. 30 (2005)

and the cases cited therein as a matter of state constitutional law. Although a specific unanimity

charge is not r equired in every circumstance where the jury must find some preliminary factual

circumstances which might be evidence of a single course of conduct, see e.g. State v. Parker ,

124 N.J. 628, 633 (1994) and examples cited therein, the discrete inquiry the jur y must undertake

regarding the materiality of a statement seems to make this scenario more like those examples

cited in Frisby and Gentry which require a specific unanimity instruction as opposed to Parker

and examples cited therein. A special verdict form may be needed to be used if the circumstances

warrant.

15 N.J.S.A. 2C:21-4.6(b). The statute states that claims of health care claims fraud can be

aggregated under this section. If there are allegations of health care claims fraud, N.J.S.A.

2C:21.4.2, the Model Jury Charge on Health Care Claims Fraud should be used as appropriate for

those alleged acts.

INSURANCE FRAUD: MAKING FALSE STATEMENT (APPLICATION)

N.J.S.A. 2C:21-4.6a(2)

constitute an individual act of insurance fraud. 16 Multiple statements in the same

narrative or document relating to a conceptually similar claim may only constitute a

single act of insurance fraud. Thus, to find five or more acts, you must find that t he State

has proven beyond a reasonable doubt, that the defendant knowingly made a false,

fictitious, fraudulent or misleading statement or omitted a material fact or caused to be

omitted a material fact, in five or more discrete documents or narratives . Statements

relating to the same application that are contained in separate narratives or documents

may constitute more than a single act, if the State has proven beyond a reasonable doubt

that defendant submitted (caused to be submitted) (attempted 17 to submit)(attempted to

cause to be submitted) the particular statement (as part of) (in connection with)(in support

of)(in opposition to) an application to obtain or to renew an insurance policy , and that

each statement was material.

[CHARGE IF APPROPRIATE]

For example, if a document contained a false statement of age and a false

statement of the number of previous insurance claims , that would still constitute only a

single act of insurance fraud. If, how ever, a false statement of age was made in one

document, and a false statement of the number of previous insurance claims was made in

another document, even if the statements were made in connection with the same

application, that would constitute separate acts of insurance fraud.18

[RESUME MAIN CHARGE]

The State must also prove beyond a reasonable doubt that the total value of the

property, services or other benefit wrongfully obtained or sought to be obtained was

$1,000 or more.

In summary, if you find that the State has failed to prove any of the elements of

the crime of Insurance Fraud, you must find the defendant not guilty. If you find the

State has proven beyond a reasonable doubt all of the elements of insurance fraud, and

the State has proven beyond a reasonable doubt that the defendant committed five or

more acts of insurance fraud, and that the total value of the acts was one thousand dollars

($1,000) or more, then you must find the defendant guilty of the more serious crime of

16 State v. Fleischman, 189 N.J. at 554.

17 If attempt is charged, the jury should be instructed from the Model Jury Charge, Attempt

N.J.S.A. 2C:5-1, as attempt requires a purposeful mental state.

18 The trial court should not charge similar examples which mirror the acts alleged in the

indictment. The examples above should be changed if that occurs.

INSURANCE FRAUD: MAKING FALSE STATEMENT (APPLICATION)

N.J.S.A. 2C:21-4.6a(2)

Insurance Fraud. If you find the State has failed to prove either that the d efendant

committed five or more acts of insurance fraud, or that the total value was one thousand

dollars or more, beyond a reasonable doubt, but find that the State has proven all of the

other elements of Insurance Fraud beyond a reasonable doubt, then yo u must find the

defendant not guilty of the more serious crime of Insurance Fraud, and you must find the

defendant guilty of the less serious crime of Insurance Fraud.