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An insurance carrier that erroneously disclaimed coverage based upon a claimant’s purported lack of involvement in a motor vehicle accident is afforded a qualified privilege in an ensuing defamation action



Hame v Lawson, 2010 NY Slip Op 00811 (2d Dept. 2010)

I appealed a similar type of defamation case last year.  Horbul v Mercury Ins. Group, 64 Ad3d 282 (2d Dept. 2009).  In Horbul, the Appellate Division observed the following: “The plaintiff alleged in the complaint that the defendants committed slander per se when they reported to the police that the plaintiff had filed a fraudulent claim with them for no-fault medical benefits for his son.”  They dismissed the claim, because “[t]he complaint failed to comply with CPLR 3016 (a), which requires that a complaint sounding in defamation “set forth ‘the particular words complained of’ ”

I never posted about this case because it dealt with an elementary pleading defect and added nothing to the growing body of no-fault and no-fault related issues.

But I mention Horbul because Hame now takes a similar set of facts and dismisses the defamation claim on the merits.  The Appellate Division stated the following:

“The plaintiff allegedly was struck by an automobile driven by Igal Shaul. She filed a claim for no-fault benefits with Shaul’s insurer, the defendant Response Insurance Company (hereinafter RIC). After conducting an investigation, including examinations under oath of the plaintiff and Shaul, RIC denied her claim, concluding that she had made “material misrepresentations and false statements” and that the incident was a “deliberate[ly] staged event.” The denial of claim form was sent to three medical providers who had treated the plaintiff. After a referee determined that Shaul had been involved in the accident, the plaintiff brought this action alleging that she had been defamed when RIC sent the denial to her medical providers.

Contrary to the plaintiff’s contention, the Supreme Court properly granted the defendants’ motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. The statements made in the denial of claim form were subject to a qualified privilege as both RIC and the medical providers treating the plaintiff had an interest in that communication (see Golden v Stiso, 279 AD2d 607, 608). In order to overcome the privilege, the plaintiff was required to allege that RIC’s statements were made solely with malice, either under the constitutional or common-law standard (see Liberman v Geldstein, 80 NY2d 429, 438; Rohrlich v Consolidated Bus Tr., Inc., 15 AD3d 561, 562). “The plaintiff failed to allege any facts from which malice could be inferred and [her] conclusory allegations of malice were insufficient to overcome the privilege” (Red Cap Valet v Hotel Nikko [USA], 273 AD2d 289, 290; see Rohrlich v Consolidated Bus Tr., Inc., 15 AD3d at 562; Serratore v American Port Servs., 293 AD2d 464; Freidman v Ergin, 110 AD2d 620, affd 66 NY2d 645; see also Breytman v Olinville Realty, LLC, 54 AD3d 703, 704; Baker v City of New York, 44 AD3d 977, 981).”

As a final note, in Horbul, the statements were also subject to a qualified privileged since they were made to the police in the course of an investigation.  As I said earlier, the Appellate Division never reached the ultimate issues in Horbul because of the elemental pleading defects in that complaint.  However, the result in Horbul would have been the same had Plaintiff’s pleadings satisfied 3016(a).