Wednesday, May 2, 2018
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Ninth Circuit:
Action May Proceed Against Ex-Player, Now Lawyer, for Alleged Fraud
Panel Reverses Dismissal of Insurer’s Action Against Former NFL Tackle Brad Culpepper Under California’s Insurance Fraud Prevention Act
By a MetNews Staff Writer
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—CBS Brad Culpepper is seen in a scene from the television reality show “Survivor.” An insurance company that paid him $175,000 on a workers compensation claim alleges that feats he performed on the show contradict his claims of disability. |
The Ninth U.S. Circuit Court of Appeals has reversed the dismissal of an action against former NFL defensive tackle John Broward “Brad” Culpepper, now a Florida personal injury attorney, for alleged fraud in a California workers’ compensation action.
The injuries were purportedly incurred in 2000 while playing six games in Los Angeles for the Chicago Bears.
A three-judge panel on Monday found that District Judge Cormac J. Carney of the Central District of California erred in finding that the Bears’ insurer, now known as TIG Insurance Company, had failed to exhaust its administrative remedies. Citing Labor Code §5901, Carney held that the insurer was obliged to seek reconsideration by the Workers’ Compensation Appeals Board (“WCAB”) of its approval of the $175,000 settlement in the case.
It was determined that Culpepper was 89 percent disabled.
But the Ninth Circuit held that TIG’s claim under California’s Insurance Fraud Prevention Act (“IFPA”) is outside the scope of the workers’ compensation system.
The insurer has said that it became aware of fraud on Culpepper’s part after the settlement when Culpepper and his wife, Monica Culpepper, emerged as contestants on the CBS television reality show “Survivor.” On the program, contestants are taken to an isolated location, where they must fend for themselves including food and shelter, with the objective of being the sole survivor.
TIG’s Assertion
TIG asserted that participation on that program “can be physically demanding on its contestants.” Outside of his activity on that show, it alleged, “Culpepper engaged in activities such as running and kickboxing that were inconsistent with his claimed disability.”
The insurer sued for a false insurance claim in Los Angeles Superior Court under the IFPA which permits qui tam actions, allowing private plaintiffs to sue on behalf of the state and receive a portion of government-imposed penalties. Culpepper removed the case to federal court based on diversity of citizenship and the amount in controversy exceeding $75,000.
The Ninth Circuit opinion points out that Labor Code §5901 precludes judicial review of causes of action “arising out of any final order, decision or award” of the WCAB until the board has had a chance to reconsider its decision. It declares that TIG’s claim “arises from Culpepper’s allegedly fraudulent presentation of his claim for insurance benefits, not from the settlement of that claim or from the WCAB’s approval of that settlement.”
It adds:
“We will not construe the term ‘arising out of’ beyond its plain meaning as Culpepper suggests.”
The WCAB does not have exclusive jurisdiction, it says, “because this is an action on behalf of the State of California, not an action for benefits against an employer.”
Oral Argument
At oral argument on April 10, attorney Jason Litt of Horvitz & Levy, representing TIG, told a three-judge panel:
“This qui tam lawsuit asserts a public right to challenge a fraudulent workers compensation claim. In this case, Mr. Culpepper made representations that he had difficulty lifting his arms above his head, walking a couple of blocks, even getting out of bed in the morning—while all the while he was sparring with professional mixed-martial arts fighters, running long distance races, and making a tape to audition for “Survivor” when he was touting his physical fitness.”
Steven M. Michel of Booth, Mitchel & Strange, LLP argued:
“Mr. Culpepper played nine years in the NFL and suffered debilitating injuries. He filed a workers compensation claim where the issues of injury were litigated by TIG. They hired lawyers. They were able to investigate his claim.
“They entered into a settlement. The settlement was approved by the judge.”
To bypass that settlement, he said, would “undermine the workers compensation system.”
Michel noted that although TIG was not seeking a refund of the settlement, it was calling for payment of its attorney fees in the workers compensation action.
Circuit Judge Mary H. Murguia pointed to the contention that Culpepper performed feats which he could not have if the allegations in his workers compensation claim were true. Michel responded:
“That’s certainly something that we vigorously deny. What we don’t have before the court is what Mr. Culpepper did with his $175,000.”
Intimating that he spent the money on treatment, the lawyer remarked:
“He said, ‘I can’t crouch.’ Well, now he can crouch because he’s done certain things to make himself better.”
Culpepper—who played from 1992 to 2000 for the Tampa Bay Buccaneers and the Minnesota Vikings, as well as for the Bears—received his law degree from University of Florida College of Law in 2001 and was admitted to the State Bar of Florida the following year. He handles automobile accident cases in Tampa.
His workers compensation claim was one of thousands filed by ex-athletes who had merely visited California with their teams. A 2012 study showed that from the early 1980s, about 4,500 players had collectively garnered as estimated $747 million from the California Insurance Guarantee Association.
The law was altered in 2013 to bar claims by athletes for out-of-state teams.
Copyright 2018, Metropolitan News Company