CourtListener 2819976•Commonwealth v. Lima
Gesamter Gesetzestext
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13-P-1746 Appeals Court
COMMONWEALTH vs. VIRGEN MILLIE LIMA.
No. 13-P-1746.
Suffolk. November 13, 2014. - July 22, 2015.
Present: Cypher, Fecteau, & Massing, JJ.
Motor Vehicle, Insurance. Insurance, Motor vehicle insurance,
Defrauding insurer. Fraud. Larceny. False Pretenses.
Practice, Criminal, Required finding.
Indictments found and returned in the Superior Court
Department on March 11, 2010.
The cases were tried before Regina L. Quinlan, J.
Charles Allan Hope for the defendant.
Christopher Hurld, Assistant Attorney General, for the
Commonwealth.
CYPHER, J. The defendant, Virgen Millie Lima, appeals from
convictions by a Superior Court jury of two counts of motor
vehicle insurance fraud under G. L. c. 266, § 111B, and two
2
counts of larceny under G. L. c. 266, § 30.1 The defendant
argues that there was insufficient evidence of intent to defraud
and that she did not commit larceny by false pretenses, because
there was no property stolen from Safety Insurance Company
(Safety Insurance). We affirm.
Background. The charges against the defendant arose from
an investigation by the Massachusetts Insurance Fraud Bureau
(IFB), which was prompted by two referrals from Safety Insurance
involving the same car dealership and the same insurance agency.
The investigation began in 2008 while the defendant was employed
as a licensed insurance agent by Brighton Insurance Agency in
Brighton (Brighton Insurance). Following the IFB investigation,
in which the investigator discovered a pattern of commercial
vehicle policies involving undocumented drivers, a report of the
findings was submitted to the office of the Attorney General.
After review, that office sought indictments from a grand jury
that charged the defendant with fraudulent statements or
representations in three applications for commercial automobile
insurance, prepared by the defendant and submitted by Brighton
1
The defendant was found not guilty of one count of
insurance fraud.
3
Insurance to Safety Insurance. The defendant also was charged
with larceny in respect to those policies.2
Facts. A significant portion of Brighton Insurance's
business involved serving a large influx of Brazilian
immigrants, many of whom had Brazilian driver's licenses.
Brighton Insurance actively sought their business by advertising
that it had staff fluent in Spanish and Portuguese, including
the defendant. Similarly, many customers of an automobile
agency, Inman Motors in Somerville, were Brazilian, and were
referred to Brighton Insurance for their insurance needs. They
were assisted in making that connection through the efforts of
Wanderson Silva, one of Inman's employees.
Gordon Owades, the majority partner in Brighton Insurance,
testified that sometime in 2004 he was required by the insurance
companies for which he sold policies to refuse applications
based on Brazilian licenses. At that time, the defendant
suggested to Silva that they turn to commercial motor vehicle
insurance. The Commonwealth theorizes the defendant concluded
that drivers with foreign licenses, who could not obtain
2
"The insurance fraud bureau of Massachusetts is . . . a
private entity, . . . authorized by special act to combat
insurance fraud in the workers' compensation and automobile
insurance systems by investigating charges of such fraud and
referring suspected violations for criminal prosecution." Adams
v. Liberty Mut. Ins. Co., 60 Mass. App. Ct. 55, 58 n.7 (2003).
4
personal motor vehicle insurance, might be able to operate under
a commercial policy.3
Discussion. The defendant's argument, that there was
insufficient evidence of an intent to defraud, mistakenly relies
on two cases of motor vehicle insurance fraud under
G. L. c. 266, § 111B, where the fraud alleged concerned the
claims made under the insurance policies.4 The defendant
overlooks that the charges against her concern fraud made in
applications for insurance, an alternate ground of fraud
proscribed by wording inserted in § 111B by St. 1988, c. 273,
§ 60, as noted in the margin.5
The indictments in this case charged the defendant with
"fraudulent statement(s) or representation(s) of any fact or
thing material to such a claim in violation of G. L. c. 266,
3
The Commonwealth, citing G. L. c. 90, §§ 3, 10, contends
that "Massachusetts law generally requires drivers with foreign
licenses to obtain a Massachusetts driver's license within
thirty days of acquiring a place of abode or employment in the
Commonwealth. . . . Drivers who maintain motor vehicle
liability insurance in the required amounts are excluded from
this requirement. . . . Drivers with foreign licenses may drive
vehicles registered to others, including businesses." Compare
Commonwealth v. Chown, 76 Mass. App. Ct. 684, 688 (2010).
4
See Corson v. Commonwealth, 428 Mass. 193 (1998);
Commonwealth v. Jerome, 56 Mass. App. Ct. 726 (2002).
5
General Laws c. 266, § 111B, which formerly stated that
"[w]hoever, in connection with or in support of any claim under
any motor vehicle . . . insurance policy"; now provides, "in
connection with or in support of any application for or claim"
(emphasis supplied).
5
§ 111B," in connection with applications for Vitorino Painting
and New Generation Services. Accordingly, we now examine
whether the Commonwealth's evidence, viewed according to
Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), was
sufficient to show that the defendant made false statements in
these applications, intending to deceive Safety Insurance.6
The two applications we examine are on a standard form and
require the following principal information: name and address
of insured; address of premises; nature of business; and names
of all drivers who will drive company vehicles and employees who
will drive their own vehicles on company business.
The Vitorino Painting application was signed by the
applicant, Rodrigo Almeida Junior, who was friendly with the
defendant. No further information on him or his relationship to
the business appeared on the application. The address of the
premises for Vitorino Painting was shown as the defendant's home
address and she was listed as the only driver. The only other
6
General Laws c. 266, § 111B, states in relevant part:
"Whoever, in connection with or in support of any
application for or claim under any motor vehicle . . .
policy issued by an insurer, and with intent to injure,
defraud or deceive such insurer knowingly presents to it, .
. . any notice, statement, or proof of loss, whether or not
the same is under oath or is required or authorized by law
or the terms of such policy, knowing that such notice,
statement or proof of loss contains any false or fraudulent
statement or representation of any fact or thing material
to such application or claim, shall be punished."
6
information, a vehicle registration, showed Almeida's home
address in Brighton.
The New Generation Services application was signed by the
applicant, Cledimar S. Lopes. The application listed Lopes's
residential address as the business premises, but included no
further information about her or her relationship to the
business. The defendant was listed as the only driver and a
copy of her driver's license and driving history were attached.7
The defendant falsely listed herself as the only driver of
company vehicles in both applications. Brighton Insurance,
however, was her only employer and there was no evidence that
she worked for either business. In the Vitorino application she
falsely stated her home address as the address of the business.
Moreover, the investigator for the IFB testified that he
observed no commercial activity at either address given for the
businesses, and could not locate either of the applicants --
Almeida or Lopes. This evidence is sufficient to show that the
defendant's processing of these applications contained
7
With each application was a copy of a Massachusetts
vehicle registration application for registration of a vehicle
in the name of the business. Each application included a
Federal employer identification number (EIN). Lima applied for
and obtained that number contemporaneously with the commercial
insurance application. Each application for registration was
stamped by Safety Insurance certifying that the vehicle was
insured.
7
materially false statements she knew to be false and were made
with the intent to deceive Safety Insurance.
Finally, there is no merit in the defendant's argument that
because no property was stolen from Safety Insurance, larceny by
false pretenses could not have been committed. General Laws
c. 266, § 30(1), states: "Whoever steals, or with intent to
defraud obtains by a false pretence, . . . the property of
another as defined in this section, . . . shall be guilty of
larceny." Section 30(2) defines property to include "any
valuable contract in force." "An insurance policy is 'property'
within the statute because it is a 'valuable contract in force."
Commonwealth v. Levin, 11 Mass. App. Ct. 482, 496 (1981).
Safety Insurance relied on misrepresentations and false
statements in the applications, and thereby was induced to part
with insurance policies. See Commonwealth v. Gall, 58 Mass.
App. Ct. 278, 287 (2003).
Judgments affirmed.
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