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Sherner v. National Loss Control Services Corp.11/15/2005
Submitted on Briefs: August 18, 2005
Peter R. Sherner (Peter) and Deborah Sherner (collectively, the Sherners) appeal from an order of the Thirteenth Judicial District Court, Yellowstone County, granting summary judgment dismissing all their claims and awarding costs to the defendants. We affirm in part, reverse in part and remand.
We restate the issues on appeal as follows:
1. Did the District Court err in granting summary judgment to Cathy Andersen on the basis that she acted within the course and scope of her employment?
2. Did the District Court err in granting summary judgment to all defendants based on ยง 33-1-1210, MCA, which generally grants immunity to those who report insurance fraud?
3. Did the District Court err in granting summary judgment to all defendants on the malicious prosecution claim?
4. Did the District Court err in setting the amount of costs awarded to three defendants?
The Sherners also challenge the District Court's conclusions that the Workers' Compensation Court has exclusive jurisdiction over this case and that the claims against Conoco must fail based on res judicata, and argue that the District Court erred in dismissing their claims based on negligence, negligent and intentional infliction of emotional distress and violation of statutory and constitutional rights. Based on our decision on the merits of Issues One and Two, it is unnecessary to further consider these claims.
FACTUAL AND PROCEDURAL BACKGROUND
Peter was seriously injured in August of 1995 as a result of exposure to hydrogen sulfide gas while working at the Conoco refinery in Billings, Montana. Conoco is a self-insured employer under the Montana Workers' Compensation Act. Peter continues to receive workers' compensation benefits because of his injuries.
The Sherners brought suit against Conoco and its employees, alleging their intentional and negligent acts resulted in Peter's injuries. See Sherner v. Conoco, Inc., 2000 MT 50, 298 Mont. 401, 995 P.2d 990 (Sherner I). The Sherners eventually obtained a $1.9 million judgment in that lawsuit, which Conoco paid in September 2001.
In January of 2002, the Sherners filed their complaint in the present case against Conoco, National Loss Control Services Corporation (National), Crawford & Company (Crawford) and Cathy Andersen (Andersen), a Crawford claims adjuster. They allege the defendants acted with malice in encouraging the State Auditor to investigate Peter for allegedly defrauding his insurer, which resulted in criminal charges against him. The Sherners sought damages for intentional infliction of emotional distress, negligent infliction of emotional distress, and violation of their statutory and constitutional rights. The complaint also sought damages for malicious prosecution. The Sherners' complaint in the action underlying this appeal was based on the following facts and events after Peter's injury.
National has been the adjuster for Peter's claims since his injury. Intermountain Claims (Intermountain) served as National's local claims adjuster in Montana until January of 1998, at which time Crawford took over its duties. In June of 1996, Peter requested home health care assistance. After receiving confirmation from Peter's treating physicians that home health care was medically necessary, Intermountain authorized a home health care attendant for Peter for nine hours a day, seven days a week, subject to periodic review. The home health care attendant was to provide light housekeeping and personal care assistance.
Tracey Sherner (Tracey), the Sherners' daughter-in-la
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