Qualified not Absolute Privilege

Reporting Suspected Insurance Fraud is Subject to a Qualified Privilege in Oklahoma

Sue Chimento sued claiming defamation, negligence, intentional interference with business relations, false representation, constructive fraud, and conspiracy against Gallagher Benefit Services, Inc., and Scott McCoy, based on allegations they made to the Tulsa Police Department, Tulsa County District Attorney's Office, and the Oklahoma Insurance Department that she had embezzled money while under their employment. The trial court granted partial summary judgment to Defendants, finding that their statements to the police and district attorney were subject to an absolute privilege and their statements to Oklahoma Insurance Department were subject to a qualified privilege under 36 O.S. § 363.

In Sue Chimento v. Gallagher Benefit Services, Inc., and Scott Mccoy, Individually, Nos. 120089, 120101, 2023 OK 22, Supreme Court of Oklahoma (March 21, 2023) resolved the dispute.

BACKGROUND

Petitioner, Sue Chimento would pay individual premiums on behalf of the client Native American Tribes' employees out of the Tribal Account. Given how the Tribal Account was utilized, it was typical for the Tribal Account to have a zero balance.

In March 2017, Midfirst Bank found that the Tribal Account was overdrafted. Shortly after management's Mr. McCoy inquired of Chimento as to why the account was overdrafted, Chimento resigned her employment with AJG. McCoy then filed a report with the Tulsa Police Department ("TPD") alleging that Chimento embezzled approximately fifty-one thousand dollars ($51,000.00).

Shortly thereafter the Tulsa County District Attorney filed a criminal information charging Chimento with one count of felony embezzlement. The District Attorney later dismissed the charges against Chimento for insufficient evidence.

IMMUNITY DEFENSES

Defendants asserted that any of their statements to TPD, the District Attorney's Office, and the OID were subject to an absolute privilege, and thus, to the extent any of Chimento's claims were based on these statements, the claims must fail. The trial court granted summary judgment to AJG/GBS on all of Chimento's remaining claims. The trial court found that Defendants' statements to TPD and to the District Attorney's office were subject to an absolute privilege under 12 O.S. § 1443.1 and their statements to the OID were subject to a qualified privilege under 36 O.S. § 363.

DISCUSSION

The Supreme Court concluded that Defendants' statements to law enforcement were entitled to a qualified privilege.

Statements to law enforcement are entitled to a qualified privilege. For example, in Johnson v. Inglis, 1942 OK 80, 123 P.2d 272, the plaintiff sued for defamation after defendant reported to several Oklahoma City police officers that the plaintiff was illegally selling alcohol out of her home.

The Supreme Court in the past applied an absolute privilege to communications made during various proceedings and find that statements made to law enforcement enjoy a qualified – and not absolute – privilege. Thus, any statements Defendants made to TPD and the District Attorney's Office only enjoy a qualified privilege.

Defendants' Statements To The Oklahoma Insurance Department Are Entitled To A Qualified Privilege.

The immunity provisions of §363 expressly apply to  reports made when an insurer furnishes information, either orally or in writing for an investigation or prosecution of suspected insurance fraud. The terms of the statute, insofar as to when immunity applies, are clear and unambiguous. If any insurer furnished information for an investigation or prosecution, as they did in this case, they are protected from civil action for libel, slander or any other relevant tort or any criminal action.

The Supreme Court concluded that the clear and unambiguous intent of § 363 is to provide qualified immunity from civil actions for individuals who furnish information to the OID regarding fraudulent insurance activity.

As noted in the OID's Notice of Hearing to Chimento, its investigation was prompted by and relied upon the investigation of the Tulsa Police Department into allegations made by Defendants against Chimento. The allegations in the Notice of Hearing relate exclusively to Chimento's employment by the Defendants.

Therefore, Defendants statements to TPD and the District Attorney's Office are entitled to a qualified privilege. Likewise, Defendants statements to the Oklahoma Insurance Department are entitled to a qualified privilege under 36 O.S.Supp.2012 § 363.

ZALMA OPINION

State law requires insurers to report to the Oklahoma Department of Insurance (OID) suspected insurance fraud and by statute an insurer is provided an immunity from certain suits like those made by the Plaintiff if the suit is based upon the report to the OID. The report to police, if made in good faith, usually provides an absolute immunity but Oklahoma no makes the immunity qualified. Whether qualified or absolute the immunity protects the defendants.

(c) 2023 Barry Zalma & ClaimSchool, Inc.

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Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com

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