Bill Text: CA AB686 | 2015-2016 | Regular Session | Amended
Bill Title: Insurance: fraud prevention.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2016-02-01 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB686 Detail]
Download: California-2015-AB686-Amended.html
BILL NUMBER: AB 686 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 26, 2015
INTRODUCED BY Assembly Member Daly
FEBRUARY 25, 2015
An act to add Section 6126.8 to amend
Section 1871.7 of the Business and Professions
Insurance Code, relating to attorneys.
insurance fraud.
LEGISLATIVE COUNSEL'S DIGEST
AB 686, as amended, Daly. Unauthorized practice of law:
referrals. Insurance: fraud prevention.
Existing law prohibits knowingly employing runners, cappers,
steerers, or other persons to procure clients or patients to perform
or obtain services or benefits under workers' compensation coverage,
or to procure clients or patients to perform or obtain services or
benefits under a contract of insurance or that will be the basis for
a claim against an insured individual or his or her insurer. Existing
law authorizes a district attorney, the Insurance Commissioner, or
an interested person to bring a civil action for a violation of these
prohibitions, as specified, and makes a person who commits a
violation subject to a civil penalty of not less than $5,000 and not
more than $10,000.
This bill would similarly prohibit a person from acting in
the capacity of a runner, capper, or steerer, or to otherwise procure
clients or patients to perform or obtain services or benefits under
workers' compensation coverage, or to procure clients or patients to
perform or obtain services or benefits under a contract of insurance
or that will be the basis for a claim against an insured individual
or his or her insurer. The district attorney, the commissioner, or an
interested person would be a uthorized to bring a civil
action for a violation of these provisions.
The State Bar Act provides for the licensure and regulations of
attorneys by the State Bar of California, a public corporation. The
act prohibits persons who are not active members of the State Bar
from practicing law in California, defined as including, among other
things, advertising or holding himself or herself out as entitled to
practice law or literally translating from English into another
language, in any document, any words that imply that he or she is an
attorney. The law makes a violation of this prohibition a
misdemeanor.
This bill would expand that prohibition to include referring a
person injured in the course of employment to a lawyer or law firm
for professional services in connection with the injury. The bill
would impose a civil penalty of up to $2,500 per day for each
referral and require the State Bar to assess and collect the penalty
in a civil action, as specified. By expanding the scope of a crime,
this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1871.7 of the
Insurance Code is amended to read:
1871.7. (a) (1) It is unlawful to knowingly
employ runners, cappers, steerers, or other persons to procure
clients or patients to perform or obtain services or benefits
pursuant to Division 4 (commencing with Section 3200) of the Labor
Code or to procure clients or patients to perform or obtain services
or benefits under a contract of insurance or that will be the basis
for a claim against an insured individual or his or her insurer.
(2) It is unlawful for a person to act in the capacity of a
runner, capper, or steerer, or to otherwise procure clients or
patients to perform or obtain services or benefits pursuant to
Division 4 (commencing with Section 3200) of the Labor Code or to
procure clients or patients to perform or obtain services or benefits
under a contract of insurance or that will be the basis for a claim
against an insured individual or his or her insurer.
(b) Every person who violates any provision of this section or
Section 549, 550, or 551 of the Penal Code shall be subject, in
addition to any other penalties that may be prescribed by law, to a
civil penalty of not less than five thousand dollars ($5,000) nor
more than ten thousand dollars ($10,000), plus an assessment of not
more than three times the amount of each claim for compensation, as
defined in Section 3207 of the Labor Code or pursuant to a contract
of insurance. The court shall have the power to grant other equitable
relief, including temporary injunctive relief, as is necessary to
prevent the transfer, concealment, or dissipation of illegal
proceeds, or to protect the public. The penalty prescribed in this
paragraph shall be assessed for each fraudulent claim presented to an
insurance company by a defendant and not for each violation.
(c) The penalties set forth in subdivision (b) are intended to be
remedial rather than punitive, and shall not preclude, nor be
precluded by, a criminal prosecution for the same conduct. If the
court finds, after considering the goals of disgorging unlawful
profit, restitution, compensating the state for the costs of
investigation and prosecution, and alleviating the social costs of
increased insurance rates due to fraud, that such a penalty would be
punitive and would preclude, or be precluded by, a criminal
prosecution, the court shall reduce that penalty appropriately.
(d) The district attorney or commissioner may bring a civil action
under this section. Before the commissioner may bring that action,
the commissioner shall be required to present the evidence obtained
to the appropriate local district attorney for possible criminal or
civil filing. If the district attorney elects not to pursue the
matter due to insufficient resources, then the commissioner may
proceed with the action.
(e) (1) Any interested persons, including an insurer, may bring a
civil action for a violation of this section for the person and for
the State of California. The action shall be brought in the name of
the state. The action may be dismissed only if the court and the
district attorney or the commissioner, whichever is participating,
give written consent to the dismissal and their reasons for
consenting.
(2) A copy of the complaint and written disclosure of
substantially all material evidence and information the person
possesses shall be served on the district attorney and commissioner.
The complaint shall be filed in camera, shall remain under seal for
at least 60 days, and shall not be served on the defendant until the
court so orders. The local district attorney or commissioner may
elect to intervene and proceed with the action within 60 days after
he or she receives both the complaint and the material evidence and
information. If more than one governmental entity elects to
intervene, the district attorney shall have precedence.
(3) The district attorney or commissioner may, for good cause
shown, move the court for extensions of the time during which the
complaint remains under seal under paragraph (2). The motions may be
supported by affidavits or other submissions in camera. The defendant
shall not be required to respond to any complaint filed under this
section until 20 days after the complaint is unsealed and served upon
the defendant.
(4) Before the expiration of the 60-day period or any extensions
obtained under paragraph (3), the district attorney or commissioner
shall either:
(A) Proceed with the action, in which case the action shall be
conducted by the district attorney or commissioner.
(B) Notify the court that it declines to take over the action, in
which case the person bringing the action shall have the right to
conduct the action.
(5) When a person or governmental agency brings an action under
this section, no person other than the district attorney or
commissioner may intervene or bring a related action based on the
facts underlying the pending action unless that action is authorized
by another statute or common law.
(f) (1) If the district attorney or commissioner proceeds with the
action, he or she shall have the primary responsibility for
prosecuting the action, and shall not be bound by an act of the
person bringing the action. That person shall have the right to
continue as a party to the action, subject to the limitations set
forth in paragraph (2).
(2) (A) The district attorney or commissioner may dismiss the
action notwithstanding the objections of the person initiating the
action if the person has been notified by the district attorney or
commissioner of the filing of the motion, and the court has provided
the person with an opportunity for a hearing on the motion.
(B) The district attorney or commissioner may settle the action
with the defendant notwithstanding the objections of the person
initiating the action if the court determines, after a hearing, that
the proposed settlement is fair, adequate, and reasonable under all
the circumstances. Upon a showing of good cause, the hearing may be
held in camera.
(C) Upon a showing by the district attorney or commissioner that
unrestricted participation during the course of the litigation by the
person initiating the action would interfere with or unduly delay
the district attorney's or commissioner's prosecution of the case, or
would be repetitious, irrelevant, or for purposes of harassment, the
court may, in its discretion, impose limitations on the person's
participation, including, but not limited to, the following:
(i) Limiting the number of witnesses the person may call.
(ii) Limiting the length of the testimony of those witnesses.
(iii) Limiting the person's cross-examination of witnesses.
(iv) Otherwise limiting the participation by the person in the
litigation.
(D) Upon a showing by the defendant that unrestricted
participation during the course of the litigation by the person
initiating the action would be for purposes of harassment or would
cause the defendant undue burden or unnecessary expense, the court
may limit the participation by the person in the litigation.
(3) If the district attorney or commissioner elects not to proceed
with the action, the person who initiated the action shall have the
right to conduct the action. If the district attorney or commissioner
so requests, he or she shall be served with copies of all pleadings
filed in the action and shall be supplied with copies of all
deposition transcripts, at the district attorney's or commissioner's
expense. When a person proceeds with the action, the court, without
limiting the status and rights of the person initiating the action,
may nevertheless permit the district attorney or commissioner to
intervene at a later date upon a showing of good cause.
(4) If at any time both a civil action for penalties and equitable
relief pursuant to this section and a criminal action are pending
against a defendant for substantially the same conduct, whether
brought by the government or a private party, the civil action shall
be stayed until the criminal action has been concluded at the trial
court level. The stay shall not preclude the court from granting or
enforcing temporary equitable relief during the pendency of the
actions. Whether or not the district attorney or commissioner
proceeds with the action, upon a showing by the district attorney or
commissioner that certain actions of discovery by the person
initiating the action would interfere with a law enforcement or
governmental agency investigation or prosecution of a criminal or
civil matter arising out of the same facts, the court may stay
discovery for a period of not more than 180 days. A hearing on a
request for the stay shall be conducted in camera. The court may
extend the 180-day period upon a further showing in camera that the
agency has pursued the criminal or civil investigation or proceedings
with reasonable diligence and any proposed discovery in the civil
action will interfere with the ongoing criminal or civil
investigation or proceedings.
(5) Notwithstanding subdivision (e), the district attorney or
commissioner may elect to pursue its claim through any alternate
remedy available to the district attorney or commissioner.
(g) (1) (A) (i) If the district attorney proceeds with an action
brought by a person under subdivision (e), that person shall, subject
to subparagraph (B), receive at least 30 percent but not more than
40 percent of the proceeds of the action or settlement of the claim,
depending upon the extent to which the person substantially
contributed to the prosecution of the action.
(ii) If the commissioner has brought an action or has proceeded
with an action brought by another person under this section on or
after January 1, 2006, the commissioner shall be entitled to attorney'
s fees and costs in addition to any judgment, regardless of the date
that judgment is entered. The court shall determine and award the
commissioner the amount of reasonable attorney's fees, including, but
not limited to, reasonable fees for time expended by attorneys
employed by the department and for costs incurred. Any attorney's
fees or costs awarded to the commissioner and collected shall be
deposited in the Insurance Fund. In cases in which the commissioner
has intervened, the commissioner and the person bringing the claim
may stipulate to an allocation. The court may allocate the funds
pursuant to the stipulation if, after the court's ruling on objection
by the district attorney, if any, the court finds it is in the
interests of justice to follow the stipulation.
(iii) If the commissioner has proceeded with an action, if there
is no stipulation regarding allocation, and if a judgment has been
obtained or a settlement has been reached with the defendants, the
court shall determine the allocation, upon motion of the commissioner
or the person bringing the action, according to the following
priority:
(I) The person bringing the action, regardless of whether that
person paid money to the defendants as part of the acts alleged in
the complaint, shall first receive the amount the court determines is
reasonable for attorney's fees, costs, and expenses that the court
determines to have been necessarily incurred.
(II) The commissioner shall receive the amount the court
determines for reasonable attorney's fees and costs.
(III) If the person bringing the suit has paid moneys to the
defendants as part of the acts alleged in the complaint, that person
shall receive the amount paid to the defendants.
(IV) At least 30 percent, but not more than 40 percent, of the
remaining assets or moneys, shall be allocated to the person bringing
the action, depending upon the extent to which the person
substantially contributed to the prosecution of the action.
(iv) Those portions of a judgment or settlement not distributed
pursuant to this subdivision shall be paid to the General Fund of the
state and, upon appropriation by the Legislature, shall be
apportioned between the Department of Justice and the Department of
Insurance for enhanced fraud investigation and prevention efforts.
(B) Where If the action is one that
the court finds to be based primarily on disclosures of specific
information, other than information provided by the person bringing
the action, relating to allegations or transactions in a criminal,
civil, or administrative hearing, in a legislative or administrative
report, hearing, audit, or investigation, or from the news media, the
court may award those sums that it considers appropriate, but in no
case more than 10 percent of the proceeds, taking into account the
significance of the information and the role of the person bringing
the action in advancing the case to litigation.
(C) Any payment to a person under subparagraph (A) or under
subparagraph (B) shall be made from the proceeds. The person shall
also receive an amount for reasonable expenses that the court finds
to have been necessarily incurred, plus reasonable attorney's fees
and costs. All of those expenses, fees, and costs shall be awarded
against the defendant.
(2) (A) If the district attorney or commissioner does not proceed
with an action under this section, the person bringing the action or
settling the claim shall receive an amount that the court decides is
reasonable for collecting the civil penalty and damages. Except as
provided in subparagraph (B), the amount shall not be less than 40
percent and not more than 50 percent of the proceeds of the action or
settlement and shall be paid out of the proceeds. That person shall
also receive an amount for reasonable expenses that the court finds
to have been necessarily incurred, plus reasonable attorney's fees
and costs. All of those attorney's fees and costs shall be imposed
against the defendant. The parties shall serve the commissioner and
the local district attorney with complete copies of any and all
settlement agreements, and terms and conditions, for actions brought
under this article at least 10 days prior to filing any motion for
allocation with the court under this paragraph. The court may
allocate the funds pursuant to the settlement agreement if, after the
court's ruling on objection by the commissioner or the local
district attorney, if any, the court finds it is in the interests of
justice to follow the settlement agreement.
(B) If the person bringing the action, as a result of a violation
of this section has paid money to the defendant or to an attorney
acting on behalf of the defendant in the underlying claim, then he or
she shall be entitled to up to double the amount paid to the
defendant or the attorney if that amount is greater than 50 percent
of the proceeds. That person shall also receive an amount for
reasonable expenses that the court finds to have been necessarily
incurred, plus reasonable attorney's fees and costs. All of those
expenses, fees, and costs shall be awarded against the defendant.
(3) If a local district attorney has proceeded with an action
under this section, one-half of the penalties not awarded to a
private party, as well as any costs awarded shall go to the treasurer
of the appropriate county. Those funds shall be used to investigate
and prosecute fraud, augmenting existing budgets rather than
replacing them. All remaining funds shall go to the state and be
deposited in the General Fund and, when appropriated by the
Legislature, shall be apportioned between the Department of Justice
and the Department of Insurance for enhanced fraud investigation and
prevention efforts.
(4) Whether or not the district attorney or commissioner proceeds
with the action, if the court finds that the action was brought by a
person who planned and initiated the violation of this section, that
person shall be dismissed from the civil action and shall not receive
any share of the proceeds of the action. The dismissal shall not
prejudice the right of the district attorney or commissioner to
continue the action on behalf of the state.
(5) If the district attorney or commissioner does not proceed with
the action, and the person bringing the action conducts the action,
the court may award to the defendant its reasonable attorney's fees
and expenses if the defendant prevails in the action and the court
finds that the claim of the person bringing the action was clearly
frivolous, clearly vexatious, or brought primarily for purposes of
harassment.
(h) (1) In no event may a person bring an action under subdivision
(e) that is based upon allegations or transactions that are the
subject of a civil suit or an administrative civil money penalty
proceeding in which the Attorney General, district attorney, or
commissioner is already a party.
(2) (A) No court shall have jurisdiction over an action under this
section based upon the public disclosure of allegations or
transactions in a criminal, civil, or administrative hearing in a
legislative or administrative report, hearing, audit, or
investigation, or from the news media, unless the action is brought
by the Attorney General or the person bringing the action is an
original source of the information.
(B) For purposes of this paragraph, "original source" means an
individual who has direct and independent knowledge of the
information on which the allegations are based and has voluntarily
provided the information to the district attorney or commissioner
before filing an action under this section that is based on the
information.
(i) Except as provided in subdivision (j), the district attorney
or commissioner is not liable for expenses that a person incurs in
bringing an action under this section.
(j) In civil actions brought under this section in which the
commissioner or a district attorney is a party, the court shall
retain discretion to impose sanctions otherwise allowed by law,
including the ability to order a party to pay expenses as provided in
Sections 128.5 and 1028.5 of the Code of Civil Procedure.
(k) Any employee who is discharged, demoted, suspended,
threatened, harassed, or in any other manner discriminated against in
the terms and conditions of employment by his or her employer
because of lawful acts done by the employee on behalf of the employee
or others in furtherance of an action under this section, including
investigation for, initiation of, testimony for, or assistance in, an
action filed or to be filed under this section, shall be entitled to
all relief necessary to make the employee whole. That relief shall
include reinstatement with the same seniority status the employee
would have had but for the discrimination, two times the amount of
backpay, interest on the backpay, and compensation for any special
damages sustained as a result of the discrimination, including
litigation costs and reasonable attorney's fees. An employee may
bring an action in the appropriate superior court for the relief
provided in this subdivision. The remedies under this section are in
addition to any other remedies provided by existing law.
( l ) (1) An action pursuant to this section may not be
filed more than three years after the discovery of the facts
constituting the grounds for commencing the action.
(2) Notwithstanding paragraph (1) no action may be filed pursuant
to this section more than eight years after the commission of the act
constituting a violation of this section or a violation of Section
549, 550, or 551 of the Penal Code.
SECTION 1. Section 6126.8 is added to the
Business and Professions Code, to read:
6126.8. (a) It is a violation of subdivision (a) of Section 6126
for any person who is not licensed to practice law in this state to
receive a fee or any other form of compensation from a lawyer, law
firm, or agent or employee of a lawyer or law firm for referring a
person injured in the course of employment to a lawyer or law firm
for professional services in connection with the injury.
(b) (1) In addition to any other remedies and penalties prescribed
in this article, a person who violates this section shall be subject
to a civil penalty not to exceed two thousand five hundred dollars
($2,500) per day for each violation, to be assessed and collected in
a civil action brought by the State Bar.
(2) The court shall grant a prevailing plaintiff reasonable
attorney's fees and costs.
(3) A civil action brought under this section shall be commenced
within four years after the cause of action accrues.
(4) In a civil action brought by the State Bar under this section,
the civil penalty collected shall be paid to the State Bar and
allocated to the civil enforcement of violations of subdivision (a)
of Section 6126, including actions brought under this section.
SEC. 2. No reimbursement is required by this
act pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
