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| [ Introduced ] | [ Enrolled ] | [ Senate Amendment 001 ] |
91_HB1305eng HB1305 Engrossed LRB9101090RCks 1 AN ACT to amend the Criminal Code of 1961 by changing 2 Sections 46-1, 46-1.1, 46-2, and 46-5 and adding Section 3 46-6. 4 Be it enacted by the People of the State of Illinois, 5 represented in the General Assembly: 6 Section 5. The Criminal Code of 1961 is amended by 7 changing Sections 46-1, 46-1.1, 46-2, and 46-5 and adding 8 Section 46-6 as follows: 9 (720 ILCS 5/46-1) 10 Sec. 46-1. Insurance fraud. 11 (a) A person commits the offense of insurance fraud when 12 he or she knowingly obtains, attempts to obtain, or causes to 13 be obtained, by deception, control over the property of an 14 insurance company or self-insured entity by the making of a 15 false claim or by causing a false claim to be made on any 16 policy of insurance issued by an insurance company or by the 17 making of a false claim to a self-insured entity, intending 18 to deprive an insurance company or self-insured entity 19 permanently of the use and benefit of that property. 20 (b) Sentence. 21 (1) A violation of this Section in which the value 22 of the property obtained or attempted to be obtained is 23 $300 or less is a Class A misdemeanor. 24 (2) A violation of the Section in which the value 25 of the property obtained or attempted to be obtained is 26 more than $300 but not more than $10,000 is a Class 3 27 felony. 28 (3) A violation of this Section in which the value 29 of the property obtained or attempted to be obtained is 30 more than $10,000 but not more than $100,000 is a Class 2 31 felony. HB1305 Engrossed -2- LRB9101090RCks 1 (4) A violation of this Section in which the value 2 of the property obtained or attempted to be obtained is 3 more than $100,000 is a Class 1 felony. 4 (c) For the purposes of this Article, where the exact 5 value of property obtained or attempted to be obtained is 6 either not alleged by the accused or not specifically set by 7 the terms of a policy of insurance, the value of the property 8 shall be the fair market replacement value of the property 9 claimed to be lost, the reasonable costs of reimbursing a 10 vendor or other claimant for services to be rendered, or 11 both. 12 (d) Definitions. For the purposes of this Article: 13 (1) "Insurance company" means "company" as defined 14 under Section 2 of the Illinois Insurance Code. 15 (2) "Self-insured entity" means any person, 16 business, partnership, corporation, or organization that 17 sets aside funds to meet his, her, or its losses or to 18 absorb fluctuations in the amount of loss, the losses 19 being charged against the funds set aside or accumulated. 20 (3) "Obtain", "obtains control", "deception", 21 "property" and "permanent deprivation" have the meanings 22 ascribed to those terms in Article 15 of this Code. 23 (4) "Governmental entity" means each officer, 24 board, commission, and agency created by the 25 constitution, whether in the executive, legislative, or 26 judicial branch of State government; each officer, 27 department, board, commission, agency, institution, 28 authority, university, and body politic and corporate of 29 the State; each administrative unit or corporate 30 outgrowth of State government that is created by or 31 pursuant to statute, including units of local government 32 and their officers, school districts, and boards of 33 election commissioners; and each administrative unit or 34 corporate outgrowth of the above and as may be created by HB1305 Engrossed -3- LRB9101090RCks 1 executive order of the Governor. 2 (5) "False claim" means any statement made to any 3 insurer, purported insurer, servicing corporation, insurance 4 broker, or insurance agent, or any agent or employee of the 5 entities, and made as part of, or in support of, a claim for 6 payment or other benefit under a policy of insurance, or as 7 part of, or in support of, an application for the issuance 8 of, or the rating of, any insurance policy, when the 9 statement contains any false, incomplete, or misleading 10 information concerning any fact or thing material to the 11 claim, or conceals the occurrence of an event that is 12 material to any person's initial or continued right or 13 entitlement to any insurance benefit or payment, or the 14 amount of any benefit or payment to which the person is 15 entitled. 16 (6) "Statement" means any assertion, oral, written, or 17 otherwise, and includes, but is not limited to, any notice, 18 letter, or memorandum; proof of loss; bill of lading; receipt 19 for payment; invoice, account, or other financial statement; 20 estimate of property damage; bill for services; diagnosis or 21 prognosis; prescription; hospital, medical or dental chart or 22 other record, x-ray, photograph, videotape, or movie film; 23 test result; other evidence of loss, injury, or expense; 24 computer-generated document; and data in any form. 25 (Source: P.A. 90-333, eff. 1-1-98.) 26 (720 ILCS 5/46-1.1) 27 Sec. 46-1.1. Fraud on a governmental entity. 28 (a) A person commits the offense of fraud on a 29 governmental entity when he or she knowingly obtains, 30 attempts to obtain, or causes to be obtained, by deception, 31 control over the property of any governmental entity by the 32 making of a false claim of bodily injury or of damage to or 33 loss or theft of property or by causing a false claim of HB1305 Engrossed -4- LRB9101090RCks 1 bodily injury or of damage to or loss or theft of property to 2 be made against the governmental entity, intending to deprive 3 the governmental entity permanently of the use and benefit of 4 that property. 5 (b) Sentence. 6 (1) A violation of this Section in which the value 7 of the property obtained or attempted to be obtained is 8 $300 or less is a Class A misdemeanor. 9 (2) A violation of this Section in which the value 10 of the property obtained or attempted to be obtained is 11 more than $300 but not more than $10,000 is a Class 3 12 felony. 13 (3) A violation of this Section in which the value 14 of the property obtained or attempted to be obtained is 15 more than $10,000 but not more than $100,000 is a Class 2 16 felony. 17 (4) A violation of this Section in which the value 18 of the property obtained or attempted to be obtained is 19 more than $100,000 is a Class 1 felony. 20 (Source: P.A. 90-333, eff. 1-1-98.) 21 (720 ILCS 5/46-2) 22 Sec. 46-2. Aggravated fraud. 23 (a) A person commits the offense of aggravated fraud 24 when he or she, within an 18 month period, obtains, attempts 25 to obtain, or causes to be obtained, by deception, control 26 over the property of an insurance company or insurance 27 companies, a self-insured entity or self-insured entities, or 28 any governmental entity or governmental entities by the 29 making of 3 or more false claims or by causing 3 or more 30 false claims to be made arising out of separate incidents or 31 transactions in violation of Section 46-1 or 46-1.1 of this 32 Code. 33 (b) Sentence. A violation of this Section is a Class 1 HB1305 Engrossed -5- LRB9101090RCks 1 felony, regardless of the value of the property obtained, 2 attempted to be obtained, or caused to be obtained. 3 (Source: P.A. 90-333, eff. 1-1-98.) 4 (720 ILCS 5/46-5) 5 Sec. 46-5. Civil damages for insurance fraud or fraud on 6 a governmental entity. 7 (a) A person who knowingly obtains, attempts to obtain, 8 or causes to be obtained, by deception, control over the 9 property of any insurance company by the making of a false 10 claim or by causing a false claim to be made on a policy of 11 insurance issued by an insurance company, or by the making of 12 a false claim or by causing a false claim to be made to a 13 self-insured entity intending to deprive an insurance company 14 or self-insured entity permanently of the use and benefit of 15 that property, shall be civilly liable to the insurance 16 company or self-insured entity that paid the claim or against 17 whom the claim was made or to the subrogee of that insurance 18 company or self-insured entity in an amount equal to either 3 19 times the value of the property wrongfully obtained or, if no 20 property was wrongfully obtained, twice the value of the 21 property attempted to be obtained, whichever amount is 22 greater, plus reasonable attorneys fees. A person who 23 knowingly obtains, attempts to obtain, or causes to be 24 obtained, by deception, control over the property of a 25 governmental entity by the making of a false claim of bodily 26 injury or of damage to or loss or theft of property, 27 intending to deprive the governmental entity permanently of 28 the use and benefit of that property, shall be civilly liable 29 to the governmental entity that paid the claim or against 30 whom the claim was made or to the subrogee of the 31 governmental entity in an amount equal to either 3 times the 32 value of the property wrongfully obtained or, if property was 33 not wrongfully obtained, twice the value of the property HB1305 Engrossed -6- LRB9101090RCks 1 attempted to be obtained, whichever amount is greater, plus 2 reasonable attorneys fees. 3 (b) An insurance company or self-insured entity that 4 brings an action against a person under subsection (a) of 5 this Section in bad faith shall be liable to that person for 6 twice the value of the property claimed, plus reasonable 7 attorneys fees. In determining whether an insurance company 8 or self-insured entity acted in bad faith, the court shall 9 relax the rules of evidence to allow for the introduction of 10 any facts or other information on which the insurance company 11 or self-insured entity may have relied in bringing an action 12 under subsection (a) of this Section. 13 (c) For the purposes of this Section, where the exact 14 value of the property attempted to be obtained is either not 15 alleged by the claimant or not specifically set by the terms 16 of a policy of insurance, the value of the property shall be 17 the fair market replacement value of the property claimed to 18 be lost, the reasonable costs of reimbursing a vendor or 19 other claimant for services to be rendered, or both. 20 (Source: P.A. 90-333, eff. 1-1-98.) 21 (720 ILCS 5/46-6 new) 22 Sec. 46-6. Forfeiture. Any person who commits any 23 offense set forth in this Article shall forfeit, according to 24 the provisions of this Section, any moneys, profits or 25 proceeds, and any interest or property that the sentencing 26 court determines he or she has acquired or maintained, 27 directly of indirectly, in whole or in part, as a result of 28 the offense. The person shall also forfeit any interest in, 29 security, claim against, or contractual right of any kind 30 that affords him or her a source of influence over any 31 enterprise which he or she has established, operated 32 controlled, conducted or participated in conducting, where 33 his or her relationship to or connection with any such thing HB1305 Engrossed -7- LRB9101090RCks 1 or activity directly or indirectly, in whole or in part, is 2 traceable to any item or benefit which he has obtained or 3 acquired through the commission of any offense set forth in 4 this Article. 5 Proceedings instituted under this Section shall be 6 subject to and conducted in accordance with the following 7 procedures: 8 (a) The sentencing court shall, upon petition by the 9 prosecuting agency, whether it is the Attorney General or a 10 State's Attorney, at any time following sentencing, conduct a 11 hearing to determine whether any property or property 12 interest is subject to forfeiture under this Section. At the 13 forfeiture hearing the People of the State of Illinois have 14 the burden of establishing by a preponderance of the 15 evidence, that the property or property interests are subject 16 to forfeiture. 17 (b) In any action brought by the people of the State of 18 Illinois under this Section, the circuit courts of Illinois 19 have jurisdiction to enter such restraining orders, 20 injunctions or prohibitions, or to take any other action in 21 connection with any real, personal, or mixed property or 22 other interest subject to forfeiture, as they shall consider 23 proper. 24 (c) In any action brought by the People of the State of 25 Illinois under this Section, in which any restraining order, 26 injunction, or prohibition or any other action in connection 27 with any property or property interest subject to forfeiture 28 under this Section is sought, the circuit court presiding 29 over the trial of the person or persons charged with the 30 commission of any offense set forth in this Article shall 31 first determine whether there is probable cause to believe 32 that the person or persons so charged have committed any 33 offense set forth in this Article and whether the property or 34 interest is subject to forfeiture under this Section. In HB1305 Engrossed -8- LRB9101090RCks 1 order to make this determination, before entering any such 2 order, the court shall conduct a hearing without a jury, 3 where the People will establish: (1) probable cause that the 4 person or persons so charged have committed any offense set 5 forth in this Article and (2) probable cause that any 6 property or interest may be subject to forfeiture under this 7 Section. The hearing may be conducted, and a finding of 8 probable cause may be entered: (1) upon the return of an 9 indictment by a grand jury charging any offense set forth in 10 this Article as sufficient evidence of probable cause for 11 purposes of this Section; or (2) simultaneously with a 12 preliminary hearing if the prosecution is commenced by 13 information or complaint; or (3) by motion of the People at 14 any stage in the proceedings. Upon that finding, the circuit 15 court shall enter a restraining order, injunction, or 16 prohibition, or shall take any other action in connection 17 with any property or other interest subject to forfeiture 18 under this Section as is necessary to insure that the 19 property is not removed from the jurisdiction of the court, 20 concealed, destroyed, or otherwise disposed of by the owner 21 or holder of that property or interest before a forfeiture 22 hearing under this Section. The Attorney General or State's 23 Attorney shall file a certified copy of the restraining 24 order, injunction, or other prohibition with the recorder or 25 registrar of titles of each county where any such property of 26 the defendant may be located. No such injunction, 27 restraining order or other prohibition shall affect the 28 rights of any bona fide purchaser, mortgagee, judgment 29 creditor, or other lienholder arising before the date of 30 filing. The court may, at any time, upon verified petition 31 by the defendant, conduct a hearing to release all or 32 portions of any property or interest that the court 33 previously determined to be subject to forfeiture or subject 34 to any restraining order, injunction, prohibition, or other HB1305 Engrossed -9- LRB9101090RCks 1 action. The court may release the property to the defendant 2 for good cause shown and within the sound discretion of the 3 court. 4 (d) Upon conviction of a person for any offense set 5 forth in this Article, the court shall authorize the Attorney 6 General to seize and sell all property or other interest 7 declared forfeited under this Article, unless the property is 8 required by law to be destroyed or is harmful to the public. 9 The court may order the Attorney General to segregate funds 10 from the proceeds of the sale sufficient: (1) to satisfy any 11 order of restitution as the court may deem appropriate; (2) 12 to satisfy any legal right, title or interest that the court 13 deems superior to any right, title, or interest of the 14 defendant at the time of the commission of the acts which 15 gave rise to forfeiture under this Section; or (3) to satisfy 16 any bona fide purchaser for value of the right, title, or 17 interest in the property who was without reasonable notice 18 that the property was subject to forfeiture. Following the 19 entry of an order of forfeiture, the Attorney General shall 20 publish notice of the order and his or her intent to dispose 21 of the property. Within the 30 days following publication, 22 any person may petition the court to adjudicate the validity 23 of his or her alleged interest in the property. 24 After the deduction of all requisite expenses of 25 administration and sale, the Attorney General shall 26 distribute the proceeds of the sale, along with any moneys 27 forfeited or seized, as follows: 28 (1) 50% shall be distributed to the unit of local 29 government whose officers or employees conducted the 30 investigation into any offense set forth in this Article 31 and caused the arrest or arrests and prosecution leading 32 to the forfeiture. Amounts distributed to units of 33 government shall be used for training or enforcement 34 purposes relating to detection, investigation, or HB1305 Engrossed -10- LRB9101090RCks 1 prosecution of financial crimes, including any offense 2 set forth in this Article. In the event, however, that 3 the investigation, arrest or arrests and prosecution 4 leading to the forfeiture were undertaken solely by a 5 State agency, the portion provided under this paragraph 6 (1) shall be paid into the State Police Services Fund to 7 be used for training and enforcement purposes relating to 8 detection, investigation, or prosecution of financial 9 crimes, including any offense set forth in this Article. 10 (2) 50% shall be distributed to the county in which 11 the prosecution and petition for forfeiture resulting in 12 the forfeiture was instituted by the State's Attorney, 13 and deposited in a special fund in the county treasury 14 and appropriated to the State's Attorney for use in 15 training and enforcement purposes relating to detection, 16 investigation or prosecution of financial crimes, 17 including any offense set forth in this Article. When a 18 prosecution and petition for forfeiture resulting in in 19 the forfeiture has been maintained by the Attorney 20 General, 50% of the proceeds shall be paid into the 21 Attorney General's Financial Crime Prevention Fund. 22 Where the Attorney General and the State's Attorney have 23 participated jointly in any part of the proceedings, 25% 24 of the proceeds forfeited shall be paid to the county in 25 which the prosecution and petition for forfeiture 26 resulting in the forfeiture occurred and 25% shall be 27 paid to the Attorney General's Financial Crime Prevention 28 Fund to be used for the purposes stated in this paragraph 29 (2).