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NEGLIGENT HIRING AND SUPERVISION AND PRIMA FACIE TORT CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED, NO ALLEGATION EMPLOYEES WERE ACTING OUTSIDE THE SCOPE OF EMPLOYMENT, NO ALLEGATION MALICE WAS DEFENDANT’S SOLE MOTIVATION (FOURTH DEPT).

The Fourth Department determined plaintiff’s negligent hiring and supervision and prima facie tort causes of action should have been dismissed. The lawsuit alleged defendant insurer failed to pay claims for medical care submitted by plaintiff:

“An employer may be liable for a claim of negligent hiring or supervision if an employee commits an independent act of negligence outside the scope of employment and the employer was aware of, or reasonably should have foreseen, the employee’s propensity to commit such an act” … . Here, plaintiff’s cause of action for negligent hiring, supervision or retention is based on the factual allegations that defendant’s employees denied or delayed the payment of claims to plaintiff and sent repetitive verification demands, and that defendant was aware of what its employees were doing and continued to employ them. Plaintiff, however, failed to allege that those acts were committed outside the scope of the employees’ employment. Plaintiff also failed to allege how the employees’ alleged acts of denying claims and sending verification demands constituted acts of negligence. …

“There can be no recovery [for prima facie tort] unless a disinterested malevolence’ to injure [the] plaintiff constitutes the sole motivation for defendant[‘s] otherwise lawful act” … . Here, plaintiff alleged that defendant acted in “bad faith” and intended harm by repeatedly sending plaintiff duplicitous requests for verification forms to be completed. Those conclusory statements in the amended complaint, however, fail to allege “a malicious [act] unmixed with any other and exclusively directed to [the] injury and damage of another” … . Furthermore, it is “[a] critical element of the cause of action . . . that plaintiff suffered specific and measurable loss” … , which “must be alleged with sufficient particularity to identify actual losses and be related causally to the alleged tortious acts” … , but the injuries alleged by plaintiff are “couched in broad and conclusory terms” … , and do not constitute “specific and measurable loss” stated with particularity … . Walden Bailey Chiropractic, P.C. v Geico Cas. Co., 2019 NY Slip Op 05267, Fourth Dept 6-28-19

 

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