Loven v. Church Mut. Ins. Co.

• Decision Date: 22 October 2019
• Docket Number: No. 116,808 (comp w/ 116,954),116,808 (comp w/ 116,954)
• Citation: 452 P.3d 418
• Parties: Lisa Gaye LOVEN, Plaintiff/Appellant, v. CHURCH MUTUAL INSURANCE COMPANY and Jeffrey F. Hanes, Defendants/Appellees.
• Court: Oklahoma Supreme Court

452 P.3d 418

Lisa Gaye LOVEN, Plaintiff/Appellant,
v.
CHURCH MUTUAL INSURANCE COMPANY and Jeffrey F. Hanes, Defendants/Appellees.

No. 116,808 (comp w/ 116,954)

Supreme Court of Oklahoma.

FILED OCTOBER 22, 2019

Stanley M. Ward, Barrett T. Bowers, Norman, Oklahoma, For Plaintiff/Appellant.

Kenyatta R. Bethea, Oklahoma City, Oklahoma, For Defendants/Appellees.

KAUGER, J.:

¶1 We granted certiorari to address the first impression question of whether a claim of the tort of intentional interference with a prospective economic business advantage requires a showing of bad faith, and whether the immunity protections provided by 36 O.S. Supp. 2012 § 363 were forfeited under the alleged facts.¹ We hold that: 1)

452 P.3d 420

36 O.S. Supp. 2012 § 363 provides immunity for those who report or provide information regarding suspected insurance fraud as long as they, themselves, do not act fraudulently, in bad faith, in reckless disregard for the truth, or with actual malice in providing the information; and 2) the alleged tort of intentional interference with a prospective economic business advantage requires a showing of bad faith.² However, because no proffered evidence in this cause tends to show bad faith, the immunity provisions of 36 O.S. Supp. 2012 § 363 apply, and summary judgment was proper.

FACTS AND PROCEDURAL HISTORY

¶2 The plaintiff/appellant, Lisa Gaye Loven (Loven) worked as a general contractor in the construction business. In May of 2012, the Edmond Christian Church (ECC) contacted Loven to repair damage to several church buildings caused by storms. According to Loven, after she contracted with the ECC to make the repairs, she contacted their insurer, the defendant/appellee, Church Mutual Insurance (insurer/Church Mutual) to discuss the differences in her estimated repair costs and Church Mutual's estimated costs. Ultimately as a result of Loven's intervention, Church Mutual paid ECC over $221,000.00 more than the insurer's initial estimate of loss. Loven then performed the repairs, and ECC paid her for her work.

¶3 Also in May of 2012, Loven submitted estimates to Chisolm Creek Baptist Church (CCBC) for property damage to its buildings as well. CCBC also used Church Mutual, whose adjuster Jeff Hanes valued the damage to CCBC's buildings at $4,000.00. Again, Loven intervened on behalf of her client. Through discussions back and forth, engineer inspections, delays in payment, etc, Church Mutual again ended up paying $221,000.00 more on the claim than they initially offered.

¶4 On July 21, 2015, Loven submitted an online application with the Oklahoma Insurance Department (the Department) to become a licensed resident public adjuster. She disclosed, as required by her application, that she was currently being sued by a former client, Loc Nguyen,³ who alleged that Loven acted as a public adjuster without a license which is prohibited by the Oklahoma Insurance Adjusters Licensing Act, 36 O.S. 2011 §§ 6201 et seq.⁴ Due to this disclosure, the Anti-Fraud Unit of the Department opened an investigation. As part of the investigation, the Anti-Fraud Unit interviewed Church Mutual employees regarding their dealings with Loven during 2012.

¶5 The Department denied Loven's application on October 30, 2015. An administrative appeal hearing was held on January 20, 2016, and continued on February 4, 2016. Church Mutual employees and Hanes testified at the administrative appeal hearing. The hearing examiner denied the application on the grounds that Loven negotiated client's claim settlements and acted as an unlicensed adjuster and that she received inflated compensation through ownership of a construction

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business due to the claims she negotiated. The hearing examiner also determined that Loven had submitted a bogus invoice in the amount of $14,923.00 and added $2,984.59 for her overhead and profit on the bogus charge. The bogus charges related to the use of a crane when "lifts" were actually used instead of a crane on the CCBC repairs.

¶6 On March 30, 2016, the State of Oklahoma charged Loven and her subcontractor with felonies of filing a false claim for insurance⁵ and conspiracy to commit a felony,⁶ stemming from the crane invoice submitted to CCBC. The charges were eventually dismissed on June 9, 2016. On October 13, 2016, Loven filed a lawsuit against Church Mutual and its adjuster Hanes in the District Court of Oklahoma County. She alleged that Church Mutual and Hanes intentionally interfered with her prospective business opportunity/economic advantage. She specifically asserted that they intentionally interfered with her attempts to get licensed as a public adjuster in retaliation for her actions which caused them to pay more in hail damage roof claims than they had offered to pay to ECC and CCBC.

¶7 On November 7 and November 10, 2016, Hanes and Church Mutual filed motions to dismiss, arguing that: they were obligated to follow the Oklahoma Insurance Code; they were subpoenaed by the Oklahoma Insurance Department as part of Loven's investigation; and any information they gave was protected by immunity from Loven's lawsuit pursuant to 36 O.S. Supp. 2012 § 363.⁷

¶8 Loven objected to the motions to dismiss, arguing that immunity was inapplicable to this cause because the alleged intentional interference occurred regarding her application to be a public adjuster, and not as a result of a "report" by Church Mutual or Hanes. On January 9, 2017, the trial court granted the motions to dismiss, but allowed Loven thirty days to amend her petition to try and plead her way around the immunity provisions of the statute. She filed an amended petition on January 17, 2017, making essentially the same allegations. Church Mutual and Hanes filed motions to dismiss the amended petition, but the trial court denied the motions on May 12, 2017.

¶9 On August 18, 2017, Church Mutual and Hanes filed motions for summary judgment, again arguing that they were immune from liability. On January 31, 2018, the trial court entered an order granting the defendants' motion for summary judgment. It determined that the uncontroverted facts show that the Oklahoma Insurance Code, 36 O.S. Supp. 2012 § 363 provided the defendants immunity from tort liability. On March 2, 2018, the plaintiff appealed, and on April 27, 2018, the Court made this cause a companion

452 P.3d 422

case to Case No. 116,954, involving the same parties, so that both cases would be assigned to the same Court of Civil Appeals division for disposition.

¶10 Case No. 116,954 remains pending in the Court of Civil Appeals, but on October 29, 2018, the Court of Civil Appeals, in this cause, No. 116,808, affirmed the trial court. On November 16, 2018, Loven filed a Petition for Writ of Certiorari in this Court, arguing that Church Mutual and Hanes were not entitled to the immunity protections provided by 36 O.S. Supp. 2012 § 363. We granted certiorari on April 22, 2019, to address the statutory immunity provisions, whether the tort of intentional interference with a prospective economic business advantage requires a showing of bad faith, and whether summary judgment was proper.

I.

TITLE 36 O.S. 2012 § 363 PROVIDES IMMUNITY FOR THOSE WHO REPORT OR FURNISH INFORMATION CONCERNING FRAUDULENT ACTS AS LONG AS THEY, THEMSELVES, DO NOT ACT FRAUDULENTLY, IN BAD FAITH, IN RECKLESS DISREGARD FOR THE TRUTH OR WITH ACTUAL MALICE IN PROVIDING THE INFORMATION.

¶11 Loven argues that the statutory immunity provided by 36 O.S. 2012 § 363⁸ only applies when an insurer reports suspected fraudulent activity and because Church Mutual or Hanes did not initiate a suspected fraud report against her with the Department, the statutory immunity is inapplicable to them. Church Mutual and Hanes counter that Loven's argument is contrary to the plain language of the statute. We agree.

¶12 The statute is plain and unambiguous. When a statute is plain and unambiguous, there is no need to resort to statutory construction⁹ nor does any justification exist for the use of interpretive devices to fabricate a different meaning.¹⁰ Title 36 O.S. Supp. 2012 subsection A of § 363 requires insurers such as Church Mutual to report suspected fraud. It provides:

A. Any insurer, employee or agent of any insurer who has reason to believe that a person or entity has engaged in or is engaging in an act or practice that violates any statute or administrative rule of this state related to insurance fraud shall immediately notify the Anti-Fraud Unit of the Insurance Department and, in the case of an allegation of claimant fraud, the Workers' Compensation and Insurance Fraud Unit of the Office of the Attorney General.

¶13 Subsection B precludes civil or criminal liability against an insurer, in absence of fraud, bad faith, or reckless disregard for the truth, for providing such information. It provides:

B. No insurer, employee or agent of an insurer, or any other person acting in the absence of fraud, bad faith, reckless disregard for the truth, or actual malice shall be subject to civil liability for libel, slander or any other relevant tort or subject to criminal prosecution by virtue of filing of reports or furnishing other information either orally or

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