Viewpoint: How Engineering Fraud Inspired Birth of the American Policyholder Assn.

The morning dawned cold and gray on Feb. 18, 2015 in Uniondale, N.Y. Law enforcement officers gathered outside the offices of HiRise Engineering.¹ It was a leading engineering firm that issued storm-damage causation reports for some of the nation’s largest insurance companies after Superstorm Sandy devastated the region, leaving thousands of homes in urgent need of repair.

A unique aspect was the large pre-arranged presence of reporters from several major national news outlets. They included the New York Times, Associated Press and several independent news agencies. The news cameras captured law officers entering the building in the high-profile raid. Mountains of boxes with Superstorm Sandy claim files were carried out.

The trove included correspondence among HiRise, third-party claim administration firms and the insurance company that retained them. The event quickly became major national news.

After weeks of investigating, law enforcement arrested Matthew “Mike” Pappalardo, an executive at HiRise.² News cameras followed the scene as Pappalardo was paraded in handcuffs to the county jail. He was booked on criminal charges ranging from insurance fraud to wrongfully denying insurance benefits to policyholders.

The result was a national scandal that rocked the insurance industry and degraded consumer confidence in the integrity of the claims process.

Engineering-fraud hearings were held in federal court in New York. The Vice President of Claims of the largest insurer in the National Flood Insurance Program (NFIP) took the witness stand.³ He was questioned whether he was aware of a systematic plan to falsify engineering causation reports to illegally deny honest insurance claims. He took the Fifth Amendment.

Insurer, law firms fined $1 million

Fraudulent engineering reports were widespread among insurers and engineering firms during Superstorm Sandy, the court found.⁴ Insurance defense law firms and the largest insurer in the NFIP were fined more than $1 million for the coverup.⁵

The investigative show 60 Minutes ran a national story on this fraud.⁶ The piece featured an engineer who said over 90% of his reports were routinely changed to illegally deny homeowner damage claims. The head of the NFIP also dramatically confessed that he saw fraudulent reports used to deny storm victims claims by insurers taking part in the federally backed insurance program. Evidence suggested the fraud was systematic.

Under the guise of “peer review,” the home offices of engineering firms had changed factual observations of their field engineers, faking facts to reverse conclusions of causation to deny legitimate storm-damage claims. Homeowners were wrongfully denied more than $400 million of claims owed to them.

FEMA temporarily stepped in. It removed control of all NFIP-related civil litigation by insurance carriers across the nation. This fraud led the federal government to reopen 144,000 closed civil claims.⁷

Hearings were held in the U.S. House and Senate.⁸ The hearings were led by six senators from Louisiana, New York and New Jersey, calling for federal and state law enforcement and legislative action. More news and investigative stories followed the 60 Minutes piece, including a Frontline documentary by PBS.⁹ Pappalardo pled guilty and received three months of probation in 2017.¹⁰

Schemes pre-date Sandy

The illegal engineering scheme was not unique to Superstorm Sandy, investigators found. The public record was filled with allegations dating back to Hurricane Katrina, which devastated so many of the Gulf Coast states in 2005.

The allegations claimed insurers knowingly conspired with engineering firms to produce fraudulent causation reports and wrongfully deny coverage to policyholders. The attorney general of Mississippi, Jim Hood, investigated the forgeries.¹¹

The Sandy investigators were shocked to find that the alleged Katrina scams, almost a decade before, involved the same executives who were at the center of the Sandy engineering scandal.¹²

As with Sandy, U.S. congressional hearings followed the Katrina investigation.¹³Whistleblowers from within the insurance companies and engineering firms came forward.¹⁴ A civil RICO suit alleged that engineering companies altered reports to remove eyewitness testimony and observations by their field engineers.

The conclusions were reversed to deny honest storm-damage claims. Similar to Superstorm Sandy, U.S. congressmen wrote letters to the federal government and even President Bush, urging reforms.

Hearings were held, and Hood brought a civil action for fraud.¹⁵ The cases soon were settled between the insurers and the plaintiff bar, which had pushed for the federal government and state attorneys general to act.

“The spotlight will keep brightening on such crimes for years to come.”

The Katrina scandal died after the civil actions were settled, and no criminal arrests were made. Yet the Superstorm Sandy scandal did not die with the settlements. This scandal and its fallout were larger, and more-widespread and sustained.¹⁶

The spotlight will keep brightening on such crimes for years to come. Social media such as Facebook are helping drive the longevity of focus. Homeowners widely use Facebook to share their stories and evidence among each other, their federal legislators and reporters.¹⁷ More than 40,000 Sandy victims also have joined advocacy groups created on Facebook forums.

Victims found unsettling patterns in their shared experiences, revealing mounting evidence of potential intentional and systematic fraud. These united voices gained the attention of state and federal legislators, state attorneys general and reporters. The unified voices of the storm victims are being heard. As voting constituents, they held their elected officials responsible and made the recovery process a major voting issue in New York and New Jersey.

Katrina lawyer files most Sandy suits

Aiding the effort was John Houghtaling, an influential plaintiff lawyer from New Orleans.¹⁸ He worked with the attorney general of Louisiana after Katrina. Armed with that knowledge and experience, Houghtaling filed the majority of the initial Sandy civil suits and was appointed plaintiff liaison counsel. He personally brought evidence of a falsified Sandy engineering report to Eric Schneiderman — the attorney general of New York — and to U.S. senators from New York and New Jersey.

Schneiderman was armed with a well-documented whistleblower case. It exhibited the same pattern of fraud as discovered in Katrina. He also had an army of constituents on social media, and the backing of the six U.S. senators from Louisiana, New Jersey and New York. The national media and federal courts took notice with more rounds of news coverage.¹⁹

The dramatic action that unfolded after Sandy set a precedent. Advocates now can gather, and enlist the news and social media, along with their elected officials, to create needed change. Advocates are bypassing civil litigation and going straight to law enforcement. What once was normally and easily dismissed as a civil matter is now taken seriously as a potential insurance crime. This is especially true of New York’s elected attorney general, who must demonstrate recovery results to his constituents after the devastating storm.

Sandy marked a watershed moment in this way. The fines, exposure and unprecedented action by a state attorney general all helped greatly.²⁰ But most important, no one could recall the last time an insurance-related executive was arrested for producing an engineering report that lowballed homeowner claims. Now they can.

“Organized action among insurance-fraud investigators almost exclusively was the domain of the insurance industry …”

In the past, allegations of insurance fraud almost always involved policyholders faking damage claims. Organized action among insurance-fraud investigators almost exclusively was the domain of the insurance industry, working with law enforcement to expose bogus claims against insurers.

The opposite is true today, and now the road goes both ways. For the first time, that same law-enforcement strategy was successfully used to pursue criminal allegations of insurance fraud by the industry against the policyholders.

American Policyholder Association founded

The engineering scandals of Katrina and Sandy were a watershed moment for another reason: They led to a private 20-year endowment of nearly $19 million for a newly formed nonprofit. The American Policyholders Association (APA) was founded to combat insurance fraud committed against policyholders.²¹

The APA is a nonprofit 501(c)(4).²² This allows the APA to lobby elected officials. To keep the APA autonomous and free of financial motive, APA board members and executives are not in the business of handling insurance claims for policyholders. Nor does the APA refer cases for civil litigation or claims adjustment. The APA deals with criminal conduct.

Board members include a former legal and legislative aide to one of the U.S. senators who handled constituent complaints after Sandy, a well-known nonprofit community organizer, and a Washington D.C. lobbyist with 18 years of as chief of staff for U.S. Senators.

The APA is setting up our investigative and law-enforcement liaison strategy. To this end, we are engaging a prosecutor who ran the Insurance Fraud Division in the DA’s office of a major metropolitan market, plus a former co-chair of the Coalition Against Insurance Fraud.

A year into its creation, the APA has made a quick start in advancing its mission and building membership. After receiving the initial endowment, over 5,000 policyholders have joined the APA on Facebook.²³ More than 250 companies have joined the APA and support its mission with financial donations.

The APA’s four-point strategy is spelled out in detail:

• Lobby elected officials for commitments to prosecute insurance fraud against property owners by members of the insurance industry. A special focus is on the insurance-fraud departments of state attorneys general.
  Identify insurance fraud by engineers and/or adjusters.
  Facilitate prosecution of insurance fraud by bringing cases to law enforcement and the news media.
  Publicize cases of insurer fraud to bring greater public awareness, hold insurers accountable and deter this illegal conduct.
• The APA has made great strides. We have met with the offices of more than 17 state attorneys general. We are providing them with the insurer-fraud discoveries of other state attorneys general involved with Katrina and Sandy.

The APA leadership also is building relationships. In recent months, the APA has met with the U.S. House Financial Services Committee … Consumer Financial Protection Bureau … National Center for Disaster Fraud … U.S. attorney’s office … National Flood Insurance Program … Democratic Attorneys General Conference … Republican Attorneys General Conference … and Coalition Against Insurance Fraud.

Insurance fraud exists on both sides. That is the APA’s message to the attorneys general and local law enforcement. Thus they must stay alert to the risks their constituents face.

Commitment to prosecute pledged

The APA also is earning pledges from attorneys generals and local law enforcement to prosecute insurer-fraud cases brought to them. The APA has seen a 100% positive response around the U.S. All insurance fraud is wrong, they agree. They have committed to investigate and pursue criminal charges if presented with clear cases of fraud from within the insurance industry.

The APA also is a regular presence at insurance recovery conventions across the U.S., sharing this important action message.

One of the APA’s first actions was to join the Coalition Against Insurance Fraud, to demonstrate our strong stance against all forms of insurance crime.

“Some senior executives of major insurers clearly want to expose vendors that defraud policyholders in their name.”

The APA’s executive director gave a presentation at the Coalition’s midyear meeting in June 2019. The presentation took a somewhat sympathetic tone toward the industry: Much of the Sandy fraud was committed by third-party vendors trying to please their insurer clients — rather than by insurers themselves.

Some senior executives of major insurers clearly want to expose vendors that defraud policyholders in their name. Insurers may have robust internal checks and balances to police wrongful actions. But insurers increasingly rely on third-party administrator (TPA) firms today. External adjusting and engineering firms thus can create a large portion of damage and claim reports.

There is a high degree of competition among TPA firms for contracts with insurers. These out-sourced firms thus can cross the line to justify an insurer’s investment in the fees the TPAs bill during the claim process. Some insurers, however, still retain individuals and companies that were implicated and fined for infractions after Hurricane Katrina and Superstorm Sandy.

CBS Evening News recently aired an investigative story exposing this disheartening fact.²⁴ CBS also profiled two homeowner victims of more-recent storms who allegedly were defrauded by these same firms. This indicates that similar fraud still may be occurring.²⁵

Today, two bills are making their way through the U.S. Senate.²⁶ They seek to give the federal government the power to deny reimbursement to Write Your Own insurers in the NFIP, if the insurers continue to employ subcontractors implicated in Sandy scams. With all the qualified experts available, why would an insurer hire individuals who have defrauded the insurer’s clients? Why would an insurer risk its reputation?

After speaking with several insurance executives, the APA learned that many did not know these subcontractors are still within their chain of employment.

Reports of fraud investigated

Claims adjusting has become highly systematic. Outsourcing claims to third-party administrators and subcontractors is now the norm. This can increase the efficiency and consistency of the claims process. Yet its integrity depends on the honesty of each link in the chain.

Insurers have contracts with third-party administrative firms and engineering firms, which may subcontract to someone they hired off Craigslist. If the engineering firm or subcontractor is caught altering a causation report, they may show up on the evening news in another damaging scandal — also ensnaring the insurance company.

With the APA now investigating reports of insurance fraud, and having many political, media and law-enforcement contacts, the odds are high for getting caught in the insurer chain of command.

Insurers no longer can assume civil bad-faith penalties are their worst-case scenarios. The precedent of national media stories following false engineering reports and a new watchdog group now at work dramatically raise the stakes. In the past, the only organized watchdogs were the plaintiff bar, which often unmasked dishonest financial motives. Many allegations of engineering fraud were quietly settled by paying civil bad-faith claims after Katrina.

As a well-funded new watchdog, the APA focuses on investigating and prosecuting criminalinsurance fraud from within the insurance industry. The APA is not involved with civil actions.

With this carefully defined mission, the APA’s messages and membership in the Coalition have proven positive in making this new landscape known. Our main goal is to prevent and deter criminal acts. The APA is not against insurance companies. An insurance industry that is healthy and functions well is the backbone of our economy — and the safety net of every American family.

The APA is working with insurance executives to provide information that helps them make informed choices about who they place under their reputation, and in front of their policyholders. The APA looks forward to working with the Coalition and all of its members to bring enhanced integrity to the claims process.