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Posts Tagged ‘invasion of privacy’

Insurer Side Beware: Litigation Privilege for Pre-Suit Communications Extends Only To The Party Contemplating Filing Of Litigation

Posted on: January 14th, 2019

By: Tim Kenna & Kristin Ingulsrud

Strawn v. Morris, Polich & Purdy—filed Jan. 4, 2019, Court of Appeal of California, First District, Division Two 2019 Cal.App. LEXIS 9*—makes explicit that the application of the litigation privilege to pre-suit claims communications where the policyholder disputes its contemplation of litigation only applies to policy side interests if the insurer is contemplating litigation in good faith.

The litigation privilege makes inadmissible any communication made in judicial or quasi-judicial proceedings. California Civil Code § 47(b)(2). This privilege extends to pre-litigation statements relating to litigation contemplated in good faith and under serious consideration. Action Apartment Assn., Inc v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251.

In Strawn, the insureds brought a cause of action for invasion of privacy against State Farm’s counsel based on the alleged wrongful transmittal of the insureds’ tax returns to State Farm in connection with a coverage investigation involving potential arson. The MPP argued that the transmittal was protected by the litigation privilege because it was in anticipation of the civil action the insureds “would surely and did in fact” file. The trial court agreed and sustained the demurrer based on the litigation privilege.

The California Court of Appeal reversed. In order for the insurer to apply the privilege to its own communications, the Court held, the insurer would need to establish that it was contemplating litigation in good faith when it received the tax returns.

There have been cases in which the courts have held that routine claims communications relate to the business of insurance and are not protected speech. See, e.g. People ex. Rel. Fire Insurance Exchange v. Anapol (2012) 211 Cal.App.4th 809. Other cases have attempted to discern whether the communications themselves establish a good faith consideration of litigation. Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903.  Strawn seems to go one step further in requiring the movant to establish that IT was contemplating the filing of litigation in good faith. Strawn appears to hold that at least in a case of disputed intent of the policyholder, the insurer side’s good faith subjective or objectively reasonable belief that the policyholder was contemplating litigation is irrelevant. Thus, where claimants’ counsel threatens suit, there was no protection to the insurer side no matter how unlikely settlement.

Strawn’s effects may be felt by litigants who attempt to utilize the litigation privilege in furtherance of dispositive pre-trial motions, including anti-SLAPP and motions for summary judgment.  First, Strawn emphasizes that good faith is a question of fact that must be determined before the litigation privilege can apply. Second, it severely limits the application of the litigation privilege in favor of any party who is responding to a perceived threat of litigation, even if that perceived threat is objectively reasonable.

If you have any questions or would like more information, please contact Tim Kenna at [email protected] or Kristin Ingulsrud at [email protected].

If You Don’t Have Anything Nice To Say….You Probably Shouldn’t Post It!

Posted on: August 22nd, 2018

By: Shaun DaughertySamantha Skolnick

Mothers all over the world have admonished their children: “if you don’t have anything nice to say, don’t say anything at all.”  It may lose something when translated into some obscure dialects, but the sentiment was still there.  Now that we live in the age of technology, it appears that the old saying could use a facelift.  “If you don’t have anything nice to say, you should not type it anywhere on the internet.”  That is especially true if you are criticizing doctors and hospitals.

A wave of litigation has been emerging involving doctors and hospitals, but in these instances, they are not the targets, they are the plaintiffs.  Doctors and hospitals are starting to sue their patients for negative reviews on social media. The most recent example earned itself an article in USA Today where retired Colonel David Antoon had to pay $100 to settle felony charges for emailing his surgeon articles that the doctor found threatening as well as posting a list on Yelp of the surgeries the urologist had scheduled for the same time as his own.  Antoon alleged that his surgery left him incontinent and impotent and he had tried to appeal to the court of public opinion.

In other news, a Cleveland physician sued a former patient for defamation after the negative internet reviews of her doctor reached the level of deliberately false and defamatory statements. The case may be headed to trial in August. Close by, a Michigan hospital sued three relatives for Facebook posts and picketing which amounted to defamation, tortious interference and invasion of privacy. The family claimed that the hospital had mistreated their deceased grandmother.

We live in a country that ensures freedom of speech, and that right is exercised more than ever with the advent of social media and an ever-growing audience of participants.  However, there can be consequences if the speech is inaccurate or defamatory in nature.  While some attorneys, like Steve Hyman, cite the law in stating that “[t]ruth is an absolute defense. If you do that and don’t make a broader conclusion that they’re running a scam factory then you can write a truthful review that ‘I had a bad time with this doctor.’”  Other commentators, like Evan Mascagni from the Public Participation Project, tout avoiding broad generalizations, “If you’re going to make a factual assertion, be able to back that up and prove that fact.” That is defense against defamation claims 101.

The world of non-confrontational criticism on social medial makes it easy and tempting to post an emotionally fueled rant.  But beware!  You want to avoid a situation like that of Michelle Levine who has spent nearly $20,000 defending herself against a suit filed by her Gynecologist over defamation, libel, and emotional distress. The 24-hour rule is still a viable alternative to hitting “send” or “post.”  Type it out, let it sit and ruminate for a bit, and then decided if you are going to post the negative comments for the world to see.  Some opinions are worth sharing, or you may decide…. don’t say anything at all.

If you have any questions or would like more information please contact Shaun Daugherty at [email protected] or Samantha Skolnick at [email protected].