Commonwealth v. Lima

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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.