We’ve seen that SIU files and investigations are discoverable. A more intresting question arises when an investigator take the stand, and speaks to a jury about “indicators of fraud1.” Normally, the investigator will testify that the facts had five or six of the indicators of fraud, or something similar. And normally, those indicators are:
1. Policy purchased near the accident date
2. Older car
3. Accident was in the evening
4. Not a high speed collission
5. Injured/Parties didn’t do what the insurance company told them to (failure to cooperate)
6. Material Misrepresentations (Passenger #1 said they were heading to McDonalds. Passenger #2 said they were heading to Burger King)
7. Everyone in the car wasn’t related
8. Link charts (sometimes color coded)
The investigator may testify as to a host of other criteria that, in the insurance company’s opinion, indicates that the accident was staged. He or she will give a formula or system that outlines this in support of the testimony. In other words, the investigator will attempt to pass this off as reliable or scientific in nature. With that in mind, should the foundation of the testimony be subject to a Frye inquiry? Do any of the above factors indicate fraud anymore than other random sets of facts? Or is it just profiling?
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1. These indicators can come from the insurance company or an organization such as the NICB (National Insurance Crime Bureau). Despite it’s name, the NICB is not a government agency; it is supported by insurance companies. Before you start thinking I’m crazy, remember, the NICB went out of its way to state that it is a private entity, not subject to regulation by the insurance department and that they do not have to hire licensed investigators. Insurance Companies, however, do have to hire licensed investigators. Based on my reading of their motions, they don’t. Yes, I know the Supreme Court bounced the Article 78.