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Submission of Insurance Claims Not Always Protected Prelitigation Conduct Under First Amendment

By December 14, 2012October 25th, 2018Insurance Blog, Margaret Miglietta
Margaret Miglietta

Margaret R. Miglietta

In a new published opinion, the California Court of Appeal, Second Appellate District, upheld a trial court’s finding that submission of insurance claims may not constitute protected prelitigation conduct under the anti-SLAPP law.

In People ex rel. Fire Insurance Exchange v. Anapol, attorney Neil Anapol represented insureds who submitted claims arising from Southern California wildfires. Anapol filed bad faith actions against Farmers alleging wrongful claims handling. Farmers subsequently uncovered what appeared to be massive insurance fraud involving false or inflated claims for smoke and ash damage. Farmers then filed a whistleblower lawsuit against Anapol and other attorneys.

In response, Anapol filed an anti-SLAPP motion, arguing that his pursuit of insurance claims constituted prelitigation conduct protected by the First Amendment. The trial court denied the motion, relying upon the holding of People ex rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc. (2000) 86 Cal.App.4th 280, 285, which held that the submission of insurance claims did not constitute protected conduct under the anti-SLAPP law. Anapol appealed.

The appellate court found that submitting an insurance claim in the usual course of business does not in of itself constitute prelitigation conduct. While the court agreed that the submission of insurance claims was a necessary prerequisite to litigation, the court noted submission of claims also was a prerequisite to obtaining performance under an insurance policy. Because the attorney failed to show that the claims he submitted were in anticipation of litigation and contemplated in good faith, the appellate court affirmed the trial court’s denial of the anti-SLAPP motion.