I posted one a few months ago. Once I find it, I’ll give the cite.
Hame v Lawson, 2010 NY Slip Op 00811 (App. Div., 2nd, 2010)
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). [*2]
The plaintiff’s remaining contention that the motion should have been denied as premature is without merit (see CPLR 3211[d]; Gabrielli Truck Sales v Reali, 258 AD2d 437).
Note the reference to 3211(d), which is the equivalent of 3212(f).
David this is great. It is easy to plead malice in these cases by just pleading the truth. They came up with a false justification for not paying. I am going to find some plaintiffs and sue the hell out of you know who.
What a great idea.
The case you may be thinking of, Dave, is Hobul v. Mercury Ins. Group, 64 AD3d 682 (2d Dept 2009) http://www.nycourts.gov/reporter/3dseries/2009/2009_05947.htm. That case involved a slightly different issue — failure to allege the allegedly defamatory words as required by CPLR 3016.
In the seminal Liberman v. Gelstein case(http://scholar.google.com/scholar_case?case=18185168944665484944&q=%2280+N.Y.2d+429+%22&hl=en&as_sdt=20000000002), the Court of Appeals noted:
Under the Times malice standard, the plaintiff must demonstrate that the “statements [were] made with [a] high degree of awareness of their probable falsity” (Garrison v Louisiana, 379 US 64, 74). In other words, there “must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of [the] publication” (St. Amant v Thompson, 390 US 727, 731; see also, Restatement § 600, comment b).
* * * [T]here is a critical difference between not knowing whether something is true and being highly aware that it is probably false. Only the latter establishes reckless disregard in a defamation action.
Pleading is one thing. Proving is another.
“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””
Can anyone post the allegations of malice set forth in the complaint? Specifically, I want to know whether the complaint alleged that the malice simply arose from the carrier wanting to not pay the claim under a false pretext, as part of a broader stategy. If that’s not malice for this court, this court would be wrong.
Oh God you prove these things through the presentation of evidence to a jury. If you are just looking for a justification to deny a payment — well that is some strong evidence that you knew your staged accident defense was false. And with the right carrier you can prove a whole scheme designed to deny claims with false justifications. That’s evidence; —
Plead it with detail and the discovery would kill them. You should read State Farm’s Hood saying that she didn’t care that Kenneth Lay once ran McKinsey & Co and that McKinsey designed Enron’s business plan.
What does McKinsey do? Reduce indemnity.
Recklessness — hell you could prove intention. You can do it through circumstantial evidence. You don’t need an admission: “I intentionally lied when I said that this was a staged accident.” Don’t need it.
This is defamation per se so you don’t have to prove damages. You look at the jury and say “use your life experience … how does it feel to be called a criminal by the insurnance company you pay money to. What does it do to you … what do people think of you.”
You just need the right case. The 1 year statute is a big problem.