In 2008, the Arizona Court of Appeals reversed a trial court's order which granted a lawyer-defendant's motion for summary judgment on a malicious prosecution claim. The Court of Appeals ruled that there was a genuine issue of material fact on whether probable cause existed to file the lawsuit which gave rise to the later malicious prosecution claim. Chalpin v. Snyder, 220 Ariz. 413, 423, 207 P.3d 666, 676 (Ariz. Ct. App. 2008), review denied (unreported), (Ariz. April 20, 2009). Moreover, since Arizona recognizes "aiding and abetting a tort" as an independent claim, the lawyer in that case would be subject to an "aiding and abetting" claim as well as a malicious prosecution claim. Chalpin v. Snyder, 220 Ariz. 413, 424, 207 P.3d 666, 677 (Ariz. Ct. App. 2008), review denied (unreported), (Ariz. April 20, 2009).
While the Arizona decision is not unusual in terms of malicious prosecution claims, it seems that it is now also being cited for something completely far afield, namely, as authority for suing coverage counsel as "aiding and abetting a tort" of so-called insurance bad faith. See Denise Johnson, "Bad Faith Suits Begin Targeting Coverage Counsel" posted on Claims Journal online on March 11, 2016. It is difficult to see why the same behavior of "aiding and abetting" an insurance company to act in bad faith is actionable depending on whether the given jurisdiction recognizes insurance bad faith as a "tort" or as something else such as a breach of contract.
Please Read The Disclaimer. ©2016 by Dennis J. Wall, author of Litigation and Prevention of Insurer Bad Faith (3d ed. Thomson Reuters West in 2 Volumes, with Supplements). All rights reserved.