I. BACKGROUND

¶1 In February 2013, Petitioner, Sue Chimento, began working for Respondent Scott McCoy at his insurance agency, Scott McCoy Insurance Agency ("SMIA"). One of Chimento's primary responsibilities at SMIA was administration of its Tribal Sponsorship Program, through which SMIA assisted Native American Tribes in procuring health insurance for their employees. Specifically, Chimento would receive premium invoices for their tribal clients from the insurance companies and forward those bills to the Tribes. The Tribes would then pay a lump sum to SMIA to cover the premiums. SMIA established a bank account at Midfirst Bank dedicated to receiving these payments (the "Tribal Account"). Chimento would pay individual premiums on behalf of the Tribes' employees out of the Tribal Account. Given how the Tribal Account was utilized, it was typical for the Tribal Account to have a zero balance.

¶2 In early September 2016, SMIA was acquired by Arthur J. Gallagher & Co. ("AJG"). Chimento was kept as an employee after the acquisition to perform insurance-related services for AJG's wholly-owned subsidiary, Gallagher Benefit Services, Inc. ("GBS"). Scott McCoy was kept as well and continued to serve as Chimento's supervisor. In her role with AJG/GBS, Chimento continued administering the Tribal Sponsorship Program and utilizing the Tribal Account.

¶3 In March 2017, Midfirst Bank contacted Scott McCoy and informed him that the Tribal Account was overdrafted. Shortly after McCoy inquired of Chimento as to why the account was overdrafted, Chimento resigned her employment with AJG. On November 16, 2017, McCoy filed a report with the Tulsa Police Department ("TPD") alleging that Chimento embezzled approximately fifty-one thousand dollars ($51,000.00) from SMIA and AJG/GBS. After filing the police report, McCoy followed up several times with TPD and the Tulsa County District Attorney's Office regarding the status of their investigation and whether any criminal charges had been filed against Chimento.

¶4 On April 5, 2018, the Tulsa County District Attorney filed a criminal information charging Chimento with one count of felony embezzlement. Chimento was arrested the following day. On June 19, 2018, the District Attorney dismissed the charges against Chimento for insufficient evidence.

¶5 On or about July 9, 2019, Chimento submitted an application with the Oklahoma Insurance Department ("OID") to renew her resident insurance producer license. On October 1, 2019, the OID denied Chimento's renewal application, citing suspected violations of the Oklahoma Producer Licensing Act in 36 O.S.2011 § 1435.13

II. PROCEDURAL HISTORY

¶6 On September 21, 2018, Chimento filed suit against AJG/GBS and McCoy (collectively "Defendants") alleging defamation, negligence, intentional interference with business relations, false representation, constructive fraud, and conspiracy. Chimento would later dismiss her defamation claims. Each of Chimento's remaining claims adhere to a general thesis, that Defendants made false allegations to the Tulsa County District Attorney's Office, TPD, and other third parties with the intent of harming her reputation and business. Defendants filed counterclaims against Chimento alleging breach of her employment agreement, breach of fiduciary duty, fraud, unjust enrichment, tortious interference with contract, misappropriation of trade secrets, misappropriation of confidential business information, and civil conspiracy.

¶7 Between February 21 and February 24, 2020, the parties filed cross motions for summary judgment on their own and each other's claims and counterclaims. In Defendants' motion for summary judgment on Chimento's remaining claims, Defendants asserted that any of their statements to TPD, the District Attorney's Office, and the OID were subject to an absolute privilege, and thus, to the extent any of Chimento's claims were based on these statements, the claims must fail. On October 27, 2020, the trial court granted summary judgment to AJG/GBS on all of Chimento's remaining claims. The trial court granted summary judgment to Scott McCoy on all of Chimento's remaining claims, except those for false representation and constructive fraud. In granting summary judgment to Defendants, the trial court found that Defendants' statements to TPD and to the District Attorney's office were subject to an absolute privilege under 12 O.S. § 1443.136 O.S. § 363

¶8 On November 1, 2021, the parties appeared in court to commence with the trial. Prior to the proceedings, the parties conducted an in camera conference with the court to discuss a number of motions in limine. During that conference, the trial court realized that a number of evidentiary problems had been created by its finding that Defendants' statements to TPD, the District Attorney's Office, and the OID were privileged. Essentially, the parties would have been hard-pressed to litigate the remaining claims without referencing the investigations by TPD, the District Attorney's Office, and the OID, which would inevitably involve reference to the allegedly privileged statements.

¶9 Following these discussions, the parties submitted a Joint Motion to Certify Questions of Law for Immediate Interlocutory Review. On November 24, 2021, the trial court issued an order granting partial summary judgment and certifying the following questions of law for immediate interlocutory appeal:

1. Are communications made to a police officer regarding the allegation that another has committed a crime entitled to an absolute privilege under the doctrine set forth in Kirschstein v. Haynes, 1990 OK 8788 P.2d 941Johnson v. Inglis, 1942 OK 80123 P.2d 272

2. Are communications made to a District Attorney's office regarding the allegation that another has committed a crime entitled to an absolute privilege under the doctrine set forth in Kirschstein v. Haynes, 1990 OK 8Johnson v. Inglis, 1942 OK 80123 P.2d 272

3. Are communications by an insurer, employee, or agent of an insurer made to the Insurance Department that another insurance agent has engaged in or is engaging in an act or practice that violates any statute or administrative rule of this state related to insurance fraud entitled to an absolute privilege under the doctrine set forth in Kirschstein v. Haynes, 1990 OK 8Presson v. Bill Beckman Co., 1995 OK CIV APP 44898 P.2d 179Johnson v. Inglis, 1942 OK 80123 P.2d 272

Both Chimento and Defendants filed petitions for certiorari on the certified interlocutory order, which we granted and consolidated.

III. STANDARD OF REVIEW

¶10 We review a trial court's order granting summary judgment de novo. Tiger v. Verdigris Valley Elec. Coop., 2016 OK 74410 P.3d 1007de novo review. Lincoln Farm, L.L.C. v. Oppliger, 2013 OK 85315 P.3d 971De novo review involves a plenary, independent, and non-deferential examination of the issues presented. Benedetti v. Cimarex Energy Co., 2018 OK 21415 P.3d 43

IV. DISCUSSION

A. Defendants' statements to law enforcement are entitled to a qualified privilege.

¶11 The parties are in agreement that both TPD and the District Attorney's Office constitute law enforcement entities, and thus, the first two questions certified for review by the trial court can be addressed simultaneously. We have previously held that statements to law enforcement are entitled to a qualified privilege.

¶12 In Beshiers v. Allen, 1915 OK 182148 P. 141Id. at 142. Following a jury trial, the defendant appealed the trial court's refusal to give several jury instructions related to damages. Id. at 143. In addressing those issues, we stated:

The communication made to the sheriff under the facts of this case is a qualified privilege, that is, it is a privilege which exists only if the defendant made it in good faith, with an honest belief that it was true, and with the sole intent to aid justice, and with no malice toward the plaintiff, or intent to injure him ....

Id. ¶ 2, 148 P. 141

¶13 Similarly, in Johnson v. Inglis, 1942 OK 80123 P.2d 272Id. ¶ 3, 123 P.2d at 273. Thereafter, the defendant filed a motion to vacate the judgment claiming the statements made to the police officers were subject to an absolute privilege, which the trial court granted. Id. ¶ 4, 123 P.2d at 273-74. We found that the trial court erred in vacating the judgment because "[t]he communication made by the defendant to the police officers does not come within the rule of absolute privilege but if privileged was qualifiedly so." Id. ¶ 5, 123 P.2d at 274.

¶14 In Magness v. Pledger, 1959 OK 1334 P.2d 79212 O.S.1951 § 1443Id. ¶ 1, 334 P.2d at 793. On appeal, we reversed the trial court's judgment, finding that the defamatory statements in the petition were not covered by § 1443 because they were not made in the course of a legislative, judicial, or other lawfully authorized proceeding. Id. ¶ 8, 334 P.2d at 794-95. We also noted that the outcome was consistent with our holdings in Beshiers and Inglis. Id. ¶ 11, 334 P.2d at 795.

¶15 In the trilogy of cases, Magness, Inglis, and Beshiers, we applied a qualified privilege to statements made to law enforcement. Following this trilogy of cases, we applied an absolute privilege from the Restatement (Second) of Torts in Kirschstein v. Haynes, 1990 OK 8788 P.2d 941Kirschstein, one of the defendants, who had been raised exclusively by her father, was attempting to obtain a delayed birth certificate through the Oklahoma Department of Health, after discovering that there was no record of her birth on file with state authorities. Id. ¶¶ 3-4, 788 P.2d at 945. The statute for obtaining a delayed birth certificate, 69 O.S.1981 § 1-313, had evidentiary requirements regarding the facts of birth, including the date of birth, place of birth, and parentage. Id. ¶ 3, 788 P.2d at 945. The defendant hired an attorney to assist her in procuring the birth certificate. Id. As part of that effort, the attorney procured an affidavit from an elderly physician in the town where the defendant was allegedly born, stating that the plaintiff had given birth to the defendant. Id. ¶ 5, 788 P.2d at 946. The defendant disclosed the contents of the affidavit to several relatives but never used it to obtain her delayed birth certificate. Id. ¶ 6, 788 P.2d at 946-47.

¶16 When the plaintiff learned of the disclosure, she brought suit against the defendant, the attorney, and the physician for defamation, intentional infliction of emotional distress, and determination of heirs. Id. ¶ 7, 788 P.2d at 947. The trial court granted summary judgment in favor of the defendants finding the affidavit and its publication were privileged. Id. The Court of Civil Appeals affirmed the trial court's ruling. Id. ¶ 9, 788 P.2d at 947. Although we found that the affidavit and its publication were not covered by the statutory privilege afforded under § 1443.1, we applied "the standards set forth at Restatement (Second) of Torts §§ 586, 587, 588," recognizing an absolute privilege under the common law for communications made preliminary to proposed judicial or quasi-judicial proceedings in favor of attorneys, parties and witnesses. Id. ¶¶ 2, 13, 788 P.2d at 945-48.

¶17 Pursuant to these Restatement provisions, statements made to law enforcement would be subject to an absolute privilege,Magness, Inglis, and Beshiers. In Kirschstein, we did not address this potential conflict, nor did we explicitly overrule Magness, Inglis, and Beshiers.

¶18 Defendants claim that although Kirschstein dealt with a different class of statements, it implicitly overruled Magness, Inglis, and Beshiers by adopting the absolute privileges described in §§ 586-588 of the Second Restatement. Chimento claims that Kirschstein does not apply in this instance and that the qualified privilege described in Magness, Inglis, and Beshiers should apply instead. The parties' respective positions pose two basic questions: (1) whether Kirschstein applies to statements made to law enforcement, and (2) whether Kirschstein implicitly overruled our prior precedents that afford only a conditional privilege to statements made to law enforcement. We answer both questions in the negative.

¶19 Defendants claim that Kirschstein applies to statements made to law enforcement. In particular, Defendants point out that in Kirschstein we "favorably cited" to a Court of Civil Appeals ("COCA") opinion, White v. Basnett, 1985 OK CIV APP 10700 P.2d 66612 O.S. § 1443.1

¶20 Initially, we note that White is distinguishable from the present matter in that it involved a complaint lodged against a law enforcement officer, whereas here the allegation of wrongdoing was lodged against a private citizen. Additionally, the reference to White comes in a footnote to the following paragraph:

This Court has applied an absolute privilege to communications made during various proceedings [including White]. In said cases we construed the predecessor statute to 12 O.S.1981, § 1443.1

Kirschstein, 1990 OK 8Kirschstein did not believe that White was instructive on the question it was considering because the statements at issue in Kirschstein were made prior to a proposed proceeding.

¶21 Aside from the reference to White, there is no indication in Kirschstein that the Court contemplated its pronouncements extending beyond the circumstances unique to that case. Based on the foregoing, we find that Kirschstein does not apply to statements made to law enforcement.

¶22 Additionally, Kirschstein did not implicitly overrule Magness, Inglis, and Beshiers. Defendants note that this Court has previously recognized the doctrine of overruling by implication. See Sovereign Camp, Woodmen of the World v. Smith, 1936 OK 19856 P.2d 408Alexander v. Samuels, 1936 OK 26058 P.2d 878Sovereign Camp and Alexander, however, the prior decisions which were deemed overruled by implication were contrary to recent decisions of the United States Supreme Court and, thus no longer valid regardless.Magness, Inglis, and Beshiers are not in conflict with any decisions of the United States Supreme Court.

¶23 Defendants also claim that a series of opinions by COCA utilizing the rule announced in Kirschstein demonstrate that it is now controlling on the question before us. See, e.g., Presson v. Bill Beckman Co., Inc., 1995 OK CIV APP 44898 P.2d 179Arulkumar v. Arulkumar, 2022 OK 90521 P.3d 131Foshee v. Foshee, 2010 OK 85247 P.3d 1162Kirschstein to statements made to law enforcement, we decline to do the same. To the extent any COCA opinions conflict with our holding in this matter, they are hereby overruled.

¶24 Based on the foregoing, we find that statements made to law enforcement enjoy a qualified--and not absolute--privilege. Thus, any statements Defendants made to TPD and the District Attorney's Office only enjoy a qualified privilege.

B. Defendants' statements to the Oklahoma Insurance Department are entitled to a qualified privilege.

¶25 The remaining question certified for interlocutory review asks whether Defendants' statements to the Oklahoma Insurance Department are absolutely privileged pursuant to Kirschstein or only qualifiedly privileged pursuant to 36 O.S.supp.2012 § 363

¶26 We recently interpreted and applied this statute in Loven v. Church Mutual Ins. Co., 2019 OK 68452 P.3d 418Loven, the plaintiff, a general contractor, applied with the OID to become licensed resident public adjuster. As part of her application, the plaintiff disclosed that she was being sued by a former client, who alleged that she had illegally acted as unlicensed public adjuster. Id. ¶ 4, 452 P.3d at 420. Due to her disclosure, the OID's Anti-Fraud Unit initiated an investigation of the plaintiff. Id. In the course of its investigation, the Anti-Fraud Unit contacted the defendants, Church Mutual Insurance Company and one of its adjusters, with whom the plaintiff had negotiated several clients' claim settlements. Id. Due in part to these allegations, the OID denied the plaintiff's application. Id. ¶ 5, 452 P.3d at 420. The State of Oklahoma also filed two felony criminal charges against the plaintiff and her subcontractor for filing a false claim of insurance and conspiracy to commit a felony, but the charges were eventually dismissed. Id. ¶ 6, 452 P.3d at 421.

¶27 The plaintiff subsequently brought suit alleging intentional interference with her prospective business opportunity. Id. Specifically, the plaintiff alleged the defendants gave harmful information to the OID to retaliate against her for negotiating higher claim settlements for her clients than the defendants initially offered to pay. Id. The trial court granted summary judgment in favor of the defendants, finding that the defendants were entitled to statutory immunity under § 363(B). Id. ¶ 9, 452 P.3d at 421. We affirmed the trial court finding that the statutory immunity applied:

The immunity provisions of §363 expressly apply to either reports made under subsection A, or when an insurer furnishes information, either orally or in writing for an investigation or prosecution of suspected insurance fraud. The terms of the statute, insofar as to when immunity applies, are clear and unambiguous. If Church Mutual, or any other insurer, furnished information for an investigation or prosecution, as they did in this cause, they are protected from civil action for libel, slander or any other relevant tort or any criminal action.

The only exception for such immunity is if the insurer provides such information fraudulently, in bad faith, in reckless disregard for the truth, or with actual malice.

Id. ¶¶ 15-16, 452 P.3d at 423 (internal citations omitted).

¶28 Defendants claim that the absolute privilege adopted in Kirschstein should apply instead of the qualified immunity outlined in § 363 and applied in Loven. Specifically, Defendants argue that their statements to OID constitute "communications made preliminary to proposed [...] quasi-judicial proceedings" and thus fall within Kirschstein's absolute privilege. See Kirschstein, 1990 OK 8Kirschstein, the statements which prompted litigation were made to members of the defendant's family, rather than to an administrative agency like OID. Additionally, Kirschstein did not involve an applicable statute, like § 363, establishing qualified immunity for statements made to the relevant administrative agency, nor were we bound in that case by a prior decision from the Court applying the statute in similar circumstances, like Loven.

¶29 Defendants argue Loven is distinguishable from this case because Loven did not address Kirschstein in reaching its holding. The Court in Loven did not address Kirschstein as the facts of those cases reveal that they are obviously distinguishable. Defendants also claim that Loven is distinguishable from this case because it only applies in situations where the defendant reports suspected fraud in the first instance, whereas Defendants here only responded to inquiries from the OID. This is a mischaracterization of Loven. In Loven, the defendant, Church Mutual Insurance Company, was also responding to an inquiry from the Anti-Fraud Unit of the OID when it made allegations that the plaintiff was operating as an unlicensed public adjuster.

¶30 With respect to § 363, Defendants claim that it does not abrogate the common law absolute privilege recognized in Kirschstein. Defendants cite to previous instances where statutes stood in conflict with common law rules, and we held that statutory enactments do not abrogate the common law absent a clear expression of legislative intent. See, e.g., Greenberg v. Wolfberg, 1994 OK 147890 P.2d 895Lee v. Bueno, 2016 OK 97381 P.3d 736

¶31 In the present matter, we find that the clear and unambiguous intent of § 363 is to provide qualified immunity from civil actions for individuals who furnish information to the OID regarding fraudulent insurance activity. Thus, to the extent that the common law absolute privilege recognized in Kirschstein conflicts with § 363 by affording Defendants a broader immunity than the statute provides, we find that § 363 controls.

¶32 Lastly, Defendants claim that failure by this Court to recognize an absolute privilege for their statements to OID would undermine the Legislature's policy of requiring confidentiality over OID investigations, as expressed in 36 O.S.supp.2016 § 361

Records, documents, reports and evidence obtained or created by the Anti-Fraud Unit as a result of an inquiry or investigation of any suspected insurance related crime shall be confidential and shall not be subject to the Oklahoma Open Records Act or to outside review or release by any individual.

In the trial court, the OID cited § 361(D) in an attempt to quash a series of subpoenas issued to one of its investigators. Defendants claim it would be unfair to subject them to potential liability for their statements to the OID, while the OID's use of these confidentiality provisions limits Defendants' ability to prove that the investigation was prompted by something other than their statements.

¶33 We disagree. As noted in the OID's Notice of Hearing to Chimento, its investigation was prompted by and relied upon the investigation of the Tulsa Police Department into allegations made by Defendants against Chimento. The allegations in the Notice of Hearing relate exclusively to Chimento's employment by the Defendants.

¶34 We find that Defendants' statements to the OID are subject to a qualified privilege under 36 O.S.Supp.2012 § 363

V. CONCLUSION

¶35 On review, we find that Defendants statements to TPD and the District Attorney's Office are entitled to a qualified privilege. Likewise, Defendants statements to the Oklahoma Insurance Department are entitled to a qualified privilege under 36 O.S.Supp.2012 § 363

CERTIORARI PREVIOUSLY GRANTED;
TRIAL COURT AFFIRMED IN PART, REVERSED IN PART;
REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

Rowe, V.C.J., Kauger, J. (by separate writing), Winchester, Edmondson, Gurich, Darby, and Kuehn, JJ., concur.

Combs, J., concurs in result.

Kane, C.J., not participating.

¶1 I joined Justice Doolin in his concurring in part/dissenting in part in Kirschstein v. Hayes, 1990 OK 8788 P.2d 941Kirschstein created confusion as to when and how it would apply to other causes.

¶2 Kirschstein did not involve a quasi-judicial proceeding and was, at least partially, wrongly decided. The majority holds that to "the extent any Court of Civil Appeals opinions conflict with this cause, they are overruled." I would not leave the opportunity for more confusion to arise. Rather, I would also overrule Kirschstein, leaving the question of whether it extends absolute privilege to any other cause unnecessary.