Mosby v. Liberty Mutual Ins.

Filed 3/30/06 Mosby v. Liberty Mutual Ins. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Clay M. Smith, Judge. Reversed.

Stolpman, Krissman, Elber & Silver, Thomas G. Stolpman and Denis Elber for Plaintiff and Appellant.

Peterson & Bradford, Susan T. Olson and Lisa Kralik Hansen for Defendant and Respondent.

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Freddie Curtis Mosby, Jr., a former employee of Best Buy Company, sued Liberty Mutual Insurance Company, Best Buy's workers' compensation insurer, for malicious prosecution when an insurance fraud case against him was dismissed by the District Attorney's office. The insurance fraud case was based on the evidence Liberty Mutual provided to the District Attorney's office in support of its claim that Mosby had

exaggerated an on-the-job injury. (An air conditioning unit fell on him while he was operating a fork lift.) Mosby's complaint was initially dismissed on demurrer based on the theory that Mosby's exclusive remedies were in workers' compensation. This court, however, reversed the dismissal, holding that Liberty Mutual had stepped out of its shoes as a workers' compensation insurer, and in any event the applicable statute, section 1877.5 of the Insurance Code, expressly contemplates no civil immunity for malicious reporting of workers' compensation fraud. (See Mosby v. Liberty Mutual Insurance Company (2003) 110 Cal.App.4th 995.)

On remand, Liberty Mutual tried and succeeded again to dismiss the case, this time on the theory that Mosby's malicious prosecution action was a â€