Theft by retention of property?
May 07, 2004, 08:28Trey Hill
Theft by retention of property?
I've got a complaint from Texas Dept. of Insurance on a cop. He got in a wreck & the other driver's insurance paid off. Then, his own insurance paid off. It does not appear that the cop perpetrated any deception on his own insurance company, but now, he won't pay them the money back & they're saying it's theft.
I don't know if I can show wrongful, or unlawful appropriation without the cop doing something to cause the ins. co. to fork over the money. Looks like a mistake on their part to me and a battle appropriate for the civil courts.
Any advice, or guidance?
May 07, 2004, 14:05Martin Peterson
The suspect's policy almost surely had a contractual limitation on the company's obligation to pay where there was "other applicable similar insurance" for the same loss. But, the mere fact they paid, by mistake, more than their share of the loss, or should have limited their payment in light of the other coverage, would not necessarily seem to constitute a theft. I suppose you could argue the cop might have used deception to acquire the property, but the mere retention of property not covered by 31.01(2)(B) is not automatically theft even if it is recoverable under an equitable restitution theory in civil court. See e.g., 64 Tex.Jur.3d at 884 and Benson
, 464 S.W.2d 709. If all the guy did was make a claim on his collision coverage and simply failed to disclose he was also likely to be paid by the other person's liability carrier, seems to me it would be hard for a jury to say he engaged in criminal conduct. If he made that claim after having already received funds from the liability carrier, then that might be a different story.
May 07, 2004, 15:11Trey Hill
It's a weird case. Looks like, they originally thought the at-fault driver had no insurance, so cop's insurer paid off. Then it turns out, at-fault driver did have insurance, so his insurance paid off.
I don't see anything done by anybody which was in the course of perpetrating a fraud. Now, the ethics of a peace officer retaining money to which he knows he's not entitled is another matter.
I just want them to settle this themselves & get it out of my hair. I've told this to the cop several times. I told him, I'd have to at least take it to Grand Jury just to get Dept. of Ins. off my case. I'd expect a no-bill, but I often take stinkers to Grand Jury, just so complainant cannot say I didn't give his/her case a chance.
May 07, 2004, 22:52Martin Peterson
If he collected on UUM coverage first and his company could not help him figure out whether the other driver had insurance then it seems even more removed from theft. But it was the other motorist's carrier that failed to recognize the subrogation claim that seems to be the problem. I am not even sure the cop's carrier has a civil claim? Does the State Board now take an active role protecting insurers? Strange indeed.
June 02, 2004, 08:49Trey Hill
This went to Grand Jury while I was out recovering from hernia surgery. The grand jury no-billed it, so it's out of our hair now.
June 02, 2004, 16:51Rebecca Gibson
I am happy to hear a no-bill was issued where a no-bill was deserved.
The insurance companies think nothing of hiring lawyers to fight injury cases, and the lawyers may cost more to defend the insurance companies interest than a settlement ever would have.
Now, they have a new angle. Get a prosecutor (a licensed attorney in the State), and insinuate that there is a crime, and the insurance company gets a free lawyer. I'm sure they see this as a win/win situation.
Send them a bill for your time and advice!