Sherner v. National Loss Control Services Corp.

Summary

The Montana Supreme Court affirmed summary judgment dismissing the Sherners’ claims against Conoco, National Loss Control Services Corporation, Crawford & Company, and Cathy Andersen arising from an investigation and criminal prosecution for alleged insurance fraud. The Court held that Andersen acted within the scope of her employment and that the defendants were immune under Montana’s insurance-fraud reporting statute because the record did not show malice. The Court vacated the costs portion of the judgment and remanded for compliance with the statutory procedure allowing the opposing party time to object to claimed costs.

Holdings

1. Summary judgment for Andersen was proper because the record contained no evidence that she acted negligently or tortiously in a personal capacity; she acted within the course and scope of her employment and was not personally liable for the challenged conduct.
2. Section 33-1-1210(1), MCA, immunizes an insurer, adjuster, employee, or private person from civil liability for reporting or cooperating with an insurance-fraud investigation when the conduct is not malicious. For purposes of that statute, malice is defined by § 1-1-204(3), MCA, as a wish to vex, annoy, or injure another person or an intent to do a wrongful act.
3. Summary judgment for all defendants was proper on the malicious-prosecution claim because the Sherners presented no evidence that the defendants instigated, prosecuted, or continued the criminal proceeding or acted with malice.
4. The District Court erred by entering judgment for specified costs before the Sherners had the five-day statutory period to object to the bills of costs. The cost provision in the judgment and the January 6, 2004 notice were vacated, and the matter was remanded for costs proceedings consistent with the statutory procedure.

Questions Presented

1. Whether summary judgment was proper for Cathy Andersen on the ground that she acted within the course and scope of her employment.
2. Whether Montana's insurance-fraud reporting immunity statute, § 33-1-1210, MCA, barred the Sherners' claims absent evidence of malice.
3. Whether summary judgment was proper on the Sherners' malicious-prosecution claim.
4. Whether the District Court improperly set the amount of defense costs before allowing the Sherners the statutory period to object.

Disposition

reversed_and_remanded