Sherner v. National Loss Control Services Corp.11/15/2005
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Conclusory statements are not sufficient to defeat a motion for summary judgment. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903 (citation omitted). Here, the record contains no evidence that would show Andersen did anything more than simply report what she found in her employer's records or learned after investigation to further her employer's interests. Other than the Sherners' unsupported conclusions, there is no indiction that Andersen acted negligently or other than within the course and scope of her employment in handling Peter's case, or when she noted and reported the discrepancies she found in Peter's claims.
We hold that the District Court did not err when it concluded Andersen acted within the scope of her employment and, thus, was immune from personal liability.
ISSUE TWO
Did the District Court err in granting summary judgment to all defendants based on § 33-1-1210, MCA, which generally grants immunity to those who report insurance fraud?
The Sherners argue the District Court erred in concluding that Conoco, National and Crawford were immune from all civil liability under § 33-1-1210(1), MCA. They assert substantial evidence of record indicated that the defendants acted with malice.
Section 33-1-1210(1), MCA, provides:
In the absence of malice, an insurer, an officer, employee, or producer of the insurer, an independent adjuster, an administrator, a consultant, or any private person is not subject to civil liability for filing reports, providing information, or otherwise cooperating with an investigation or examination of insurance fraud conducted by the commissioner.
(Emphasis added.) Malice is not defined in Title 33 of the Montana Code Annotated, but it is defined in §§ 1-1-204(3) and 27-1-221(2), MCA. We have not previously determined which statutory definition of malice applies with respect to § 33-1-1210(1), MCA.
Section 1-1-204(3), MCA, defines malice as a wish to vex, annoy, or injure another person or an intent to do a wrongful act, established either by proof or presumption of law. We applied an earlier version of the § 1-1-204(3), MCA, definition of malice in a tort action in which the plaintiff recovered property damages from a company that negligently severed a sewage line during an excavation project. See Spackman v. Ralph M. Parsons Co. (1966), 147 Mont. 500, 510, 414 P.2d 918, 923. In Sherner I, 37, we adopted the definition of malice contained in § 27-1-221(2), MCA, for purposes of determining whether an employer acts with malice under the workers' compensation statutes.
The present issue relates to the tort claims of negligence, intentional and negligent infliction of emotional distress and defamation, and to the claims of violation of statutory and constitutional rights. The Sherners suggest that the § 1-1-204(3), MCA, definition of malice likely applies because § 1-1-204, MCA, states that the definitions contained therein apply " nless the context requires otherwise[.]" We agree with the Sherners that, here, "the context does not require otherwise." Thus, we conclude the § 1-1-204(3), MCA, definition of malice applies to § 33-1-1210(1), MCA.
The Sherners base their claim of malicious prosecution on their perception that National and Crawford, as agents of Conoco in its role as the insurer, maliciously targeted Peter because he was performing physical activities that led them to believe he did not require domiciliary care. The Sherners then argue that since Peter's treating physician authorized him to engage in such activities, National and Crawford acted with malice when they investigated him. They fur
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