Malicious Prosecution in Massachusetts

When I first saw this headline - “Doctor can sue insurance company for malicious prosecution” - in the local legal newspaper, my first thought was they are running a dog bites man story to open the new year. Why, after all, would an insurance company be immune from being sued for malicious prosecution? But when you delve a little deeper, you find the story, and the case it discusses, are much more meaningful than the headline suggests. In the case, Chervin v. The Travelers Insurance Company, the issue really wasn’t whether an insurance company could be sued for malicious prosecution, but instead what must be proven to sustain such a claim, whether against an insurance company or anybody else. The Supreme Judicial Court took the opportunity presented by the case to bring the law on this cause of action into the modern era, and to determine what the elements of that claim should be today.

For insurance companies, it’s a particularly useful case in that it really presents the parameters that cabin an insurance company’s decision to file a subrogation or other action against a third party as a result of a loss covered by the insurer. For that reason alone, it is worth a read. The case, ably briefed for the insurer by loyal blog reader and stellar local youth soccer coach Scott McConchie, can be found here.  Unfortunately, however, the Lawyers Weekly article with the questionable headline quoted above, has vanished from the internet in the twelve hours since I came across it.