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Sherner v. National Loss Control Services Corp.11/15/2005
ther allege these defendants withheld information from the State Auditor regarding Peter's physical condition that would absolve him of wrongdoing.
The Sherners' arguments miss the point. Peter was charged with felony theft by common scheme because he signed the fraudulent bills submitted by Bernice. The charges did not relate to whether he was physically impaired so as to warrant domiciliary care. Thus, information concerning his physical condition, whether National and Crawford provided it to the State Auditor or not, was not relevant to the charge which underlies the malicious prosecution claim. Nothing in the record indicates that Crawford or National acted with malice in investigating Peter's claim.
On the contrary, the facts clearly indicate Crawford and National were simply doing their jobs when they investigated Peter's claim. On November 28, 1997, the Governor's Fraud Hot Line received an anonymous call that Bernice had submitted time sheets fraudulently claiming to have provided services to Peter. Based on this information, Crawford, which had recently taken over as the local adjuster from Intermountain, initiated an investigation of Bernice. The investigation revealed that Bernice was not, in fact, with Peter at many of the times she claimed to be providing him with care. Pursuant to § 33-1-1205(2), MCA, an insurer, independent adjuster or employee of an insurer who has reason to believe an insurance fraud has been or is being committed must provide notice to the State Auditor within 60 days of discovery of the possible fraud. Conoco, Crawford, National and Andersen had a statutory duty to provide notice of what they had discovered to the State Auditor. The defendants then were required to cooperate fully with the investigation. See § 33-1-1205(1), MCA.
National and Crawford met their statutory duty by providing the results of their investigation to the State Auditor. The State Auditor then performed an independent investigation, gathered additional information and independently concluded that charges should be filed against Bernice and Peter. Finally, the prosecuting attorney testified by deposition that he was solely responsible for making the decision to file charges against Peter, and that he was not pressured by the defendants to prosecute the case. Under these circumstances, it is clear that the defendants did not act with malice. They acted in accordance with the law.
We conclude that the Sherners have failed to present evidence creating a genuine issue of material fact as to whether the defendants acted with malice. They simply made no showing that the defendants' conduct indicated "a wish to vex, annoy, or injure" them or any "intent to do a wrongful act." See § 1-1-204(3), MCA. In the absence of malice, the defendants are not subject to civil liability for cooperating with an investigation of insurance fraud. We hold that the District Court did not err in granting summary judgment to all defendants based on the immunity set forth in § 33-1-1210, MCA.
ISSUE THREE
Did the District Court err in granting summary judgment to all defendants on the malicious prosecution claim?
The Sherners claim the defendants were responsible for instigating the criminal charges against Peter, and that they did so with malice. They argue that the District Court erred in granting summary judgment to the defendants because there are facts in the record sufficient to sustain a civil claim for malicious prosecution.
In an action for malicious prosecution, the plaintiff must establish each of the following elements:
(1) a judicial proceeding was commenced and prosecuted against the plaintiff
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