N.J. Model Criminal Jury Charge, N.J.S.A. 2C:21-4.6a(3)

Revised 3/14/16

INSURANCE FRAUD: MAKING FALSE STATEMENT (PAYMENTS)

N.J.S.A. 2C:21-4.6a(3)

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 pe rson 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, sub mits, causes to be submitted,

or attempts to cause to be submitted as part of, in support of , or

opposition to , or in connection with, any payment made or to be

made in accordance with the terms of an insurance policy or

premium finance transaction.

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

following four elements:

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

a false, fictitious, fraudulent, or misleading statement of

fact;

(2) that the false, fictiti ous, fraudulent or misleading statement

of fact was made (or 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 APPROPRI ATE)

(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 ny

payment made or to be made in accordance with the terms

of an insurance policy or premium finance transaction;

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

was material.

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

defendant knowingly made a false, fictitious, fraudulent or misleading statement.

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

INSURANCE FRAUD: MAKING FALSE STATEMENT (PAYMENTS)

N.J.S.A. 2C:21-4.6a(3)

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

is practically certain that his/her conduct will cause such a result. "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 an d 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) a payment made or to be made in accordance with an insurance policy or

premium finance transaction.

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

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

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 indemnity 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.2

Insurance company means any person, company, corporation, u nincorporated

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

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:21-4.5.

INSURANCE FRAUD: MAKING FALSE STATEMENT (PAYMENTS)

N.J.S.A. 2C:21-4.6a(3)

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 s tate 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 organized

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

province or territory thereof.3

[CHARGE APPROPRIATE SECTION IF APPLICABLE:

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

can be in the form of any corporation, associatio n, 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 o f 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.

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 Un derwriting 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

3 Id.

INSURANCE FRAUD: MAKING FALSE STATEMENT (PAYMENTS)

N.J.S.A. 2C:21-4.6a(3)

seq.4, or a self-insurer, re-insurer, reciprocal exchange, in ter-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 Ne w 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.5

Premium finance transaction means a transaction involving or related to insurance

premium financing which is subject to the Insurance Premium Finance Company Act,

P.L. 1968, c. 221 (N.J.S.A. 17:16D-1 et. seq.]6

[RESUME MAIN CHARGE AND CHARGE IN ALL CASES]

The fourth element the State must prove beyond a rea sonable 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 to provide insurance coverage to a claimant or the

decision to provide any benefit pursua nt to an insurance policy or the decision to provide

reimbursement or the decision to pay a claim. 7 (THE COURT SHOULD TAILOR

THIS PORTION OF THE CHARGE TO THE FACTS IF MATERIALITY IS

DISPUTED) 8

[CHARGE IF APPLICABLE]

(Statutory Inference regarding signature or initials)9

If you find that ________ signed or initialed an 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

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

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

6 Id.

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

8 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 t he 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).

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

INSURANCE FRAUD: MAKING FALSE STATEMENT (PAYMENTS)

N.J.S.A. 2C:21-4.6a(3)

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. You

alone decide whether the facts and circumstances shown by the evidence su pport 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 defendant 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 payment . Multiple fraudulent statements may be considered by

you to constitute multiple acts of insurance fraud only if the alleged fraudulent statements

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(S).

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 only constitute a single act of insurance fraud. 10 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 stat ement contained in any single narrative or

document.11 In other words, all twelve of you must agree that a particular statement

10 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

where a false statement is ma de 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.

11 The Committee’s view is that this specific unanimity 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. Alt hough a specific unanimity

charge is not required 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 jury must undertake

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

INSURANCE FRAUD: MAKING FALSE STATEMENT (PAYMENTS)

N.J.S.A. 2C:21-4.6a(3)

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 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 the

State has failed to prove any of these elements beyond a reaso nable doubt, then you must

find defendant not guilty of the crime of insurance fraud.

[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 defen dant 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 mo re acts of insurance fraud that had an

aggregate value of at least one thousand dollars.12

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 the same pay ment, the statement contained in the separate document or narrative may

constitute an individual act of insurance fraud. 13 However, 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 the State

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

fictitious, fraudulent or misleading statements 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 payment 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

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.

12 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.

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

INSURANCE FRAUD: MAKING FALSE STATEMENT (PAYMENTS)

N.J.S.A. 2C:21-4.6a(3)

defendant submitted (caused to be submitted) (attempted 14 to submit)(attempted to cause

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

of)(in opposition to) any payment made or to be made in accordance with the terms of an

insurance policy or premium finance transaction, and that each statement was material.

[CHARGE IF APPROPRIATE]

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

statement of the date of loss, that would still const itute only a single act of insurance

fraud. If, however, a false statement of value was made in one document, and a false

statement of the date of loss was made in another document, even if the statements were

made i n connection with the same payment , that would constitute separate acts of

insurance fraud.15

[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 cri me of

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

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 pro ven all of the

other elements of Insurance Fraud beyond a reasonable doubt, then you 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.

14 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.

15 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.