Unfortunately, many homeowners have experienced the effects of hailstorms on the roof of their homes. For many an unsuspecting owner, a nice man will show up at their door touting his company’s ability to quickly repair the roof for the insurance proceeds and promising to cover the owner’s deductible. Such an arrangement clearly is beneficial to the owner, in particular where the owner’s insurance carries a high deductible. The roofer is more than happy to procure the work by increasing the price of the work in excess of the normal charges to cover the deductible. By entering into and performing such agreement, the owner and roofer may very well be committing a crime under Texas Law.

Under Section 27.02 of the Texas Business and Commerce Code, the roofer claims an offense where (1) it sells goods or services and advertises or promises to provide the good or service by paying all or part of any applicable insurance deductible or gives the other party a rebate of the applicable insurance deductible; (2) the good or service is paid for by the owner from proceeds of an insurance policy; and (3) the roofer knowingly charges in excess of the usual and customary charges by an amount equal to or greater than all or part of the deductible or relates the deductible to the owner. Such conduct is a Class A Misdemeanor in Texas punishable by a fine up to $4,000.00 and/or a jail term of up to one year.

The owner commits a Class A misdemeanor by simply submitting a claim under an insurance policy where the roofer is in violation of Section 27.02 or knowingly allows such a claim to be submitted, unless the owner promptly notifies the insurer of the excessive charges.

Such an arrangement can also support a felony under Texas law. Pursuant to Section 35.02 of the Texas Penal Code, the roofer or the owner commits an offense where either of them prepares and presents, or causes such to be presented, to the insurer a statement to support an insurance claim that the person knows to contain false or materially misleading information with the intent to defraud the insurer. Additionally, Section 35.02 of the Penal Code provides that the roofer or the owner commits an offense where either of them solicited, offers, pays or receives a benefit associated with the furnishing of goods or services where an insurance claim has been made with the intent to fraud the insurer.

The range of punishment under Section 35.02 is dependent on the value of the claim submitted. The following chart sets out the respective punishment classes:

Value of Claim Punishment Class

Less than $50.00 Class C misdemeanor

$50.00 < $500.00 Class B misdemeanor

$500.00 < $1,500.00 Class A misdemeanor

$1,500.00 < $20,000.00 State Jail Felony

$20,000.00 < $100,000.00 Third Degree Felony

$100,000.00 < $200,000.00 Second Degree Felony

more than $200,000.00 First Degree Felony

The value of the claim may be calculated by subtracting the amount of the valid portion of the claim from the total claim made. A rebuttable presumption exists that the owner or roofer caused the fraudulent claim to be prepared or submitted by simply submitting a fraudulent bill for payment of goods or services to the insurance carrier.

Class C misdemeanors carry the punishment of a fine not to exceed $500.00. Class B misdemeanors carry the punishments of a fine not to exceed $2,000.00, or a jail term of up to 180 days, or both. Class A misdemeanor punishments are discussed above.

A state jail felony carries the punishment of confinement in a state jail for a minimum term of 180 days up to 2 years. A third degree felony provides for confinement with the Texas Department of Criminal Justice (TDC) for a term from 2 to 10 years. A second degree felony imposes imprisonment with the TDC for a term from 2 to 20 years. A first degree felony provides for a maximum confinement term of 5 to 99 years. Each of those felonies may also carry fines of up to $10,000.00 assessed in addition to imprisonment.

When confronted with a “too good to be true” situation, care should be taken not to turn an unfortunate casualty event into conduct that may cost additional money or personal loss of freedom.

I would like to thank my law partner Brian T. Cartwright for his significant contributions to this Article

R. Scott Alagood is board certified in Commercial and Residential Real Estate Law by the Texas Board of Specialization and can be reached at alagood@dentonlaw.com or http://www.dentonlaw.com.