Insurer-Retained Investigators Act in a Representative Capacity and Cannot Be Liable for Tortious Interference or Civil Conspiracy Targeting the Insurance Contract

Introduction

In COMMUNITY RESOURCING, INC. v. BERKSHIRE HATHAWAY SPECIALTY INSURANCE, 2026 OK 53, the Oklahoma Supreme Court reviewed a certified interlocutory order denying a motion to dismiss filed by an engineering firm and its employee (collectively, “Haag”). The dispute arose from a property-loss claim after a May 2022 hailstorm. The insurer, Berkshire Hathaway Specialty Insurance (“Insurer”), retained Haag to conduct additional inspections in 2024 and report findings to assist the Insurer’s coverage evaluation. The insured, Community Resourcing Incorporated d/b/a Our Daily Bread Food and Resource Center (“Community”), later sued the Insurer for breach of contract and bad faith, sued its agent for misrepresentation, and added claims against Haag for tortious interference with the insurance contract and civil conspiracy.

The central legal question was purely legal and dispositive as to Haag: whether an insurer-retained engineer/investigator may be sued by the insured for tortious interference with the policy and for civil conspiracy based on the investigator’s claim-evaluation work performed for the insurer.

Summary of the Opinion

The Court reversed the district court and held that Community’s claims against Haag fail as a matter of law. Because Haag was hired by and acted strictly as a representative for the Insurer in inspecting the loss and reporting findings, Haag could not be liable for tortious interference with the insurance contract. For the same reason, the civil conspiracy claim also failed: Oklahoma recognizes civil conspiracy only as a derivative theory requiring an underlying unlawful act or unlawful means, and the asserted underlying tort (interference) was legally unavailable.

Analysis

Precedents Cited

  • Roach v. Jimmy D. Enters., Ltd., 1996 OK 26, and Pierson v. Canupp, 1988 OK 47: Cited to explain the interlocutory-review framework and the meaning of “merits of the controversy” for certified interlocutory orders under Rule 1.50. These cases supported the Court’s willingness to decide the viability of the claims against Haag at the pleading stage because the question was purely legal and would terminate the claims against that defendant.
  • Mac Adjustment, Inc. v. Prop. Loss Rsch. Bureau, 1979 OK 41: Provided the elements of tortious interference with contract, including the requirement that interference be “neither justified, privileged, nor excusable.” The Court used this element to hold that Haag’s insurer-retained inspection work was privileged/justified as a matter of law given Haag’s contractual engagement to perform that work.
  • Voiles v. Santa Fe Mins., Inc., 1996 OK 13, and Ray v. American National Bank & Trust Co., 1994 OK 100: These were the doctrinal centerpieces for the “representative capacity” rule. In Ray, the Court held that an entity acting on behalf of a contracting party cannot wrongfully interfere with that contract; in Voiles, the Court reiterated that if the alleged interferer acted as an agent/representative of a contracting party, the interference claim is “without foundation” as a matter of law. The Court extended this reasoning to insurer-retained claim investigators: when the investigator is engaged to perform a function integral to the insurer’s contractual performance (investigating and reporting), the investigator is not a true “outsider” capable of actionable interference.
  • Council Tower Ass'n v, Axis Specialty Ins. Co., 630 F.3d 725 (8th Cir. 2011): Used as persuasive authority to reinforce the “justification” analysis—an adjuster/investigator tasked to investigate and report cannot easily be said to act without justification merely because the insured disputes the content of the report.
  • Trinity Baptist Church v. Brotherhood Mut. Ins. Servs., 2014 OK 106; Timmons v. Royal Globe Ins. Co., 1982 OK 97; and Wathor v. Mut. Assurance Adm’rs, Inc., 2004 OK 2: These cases establish that an insurer’s core duties in handling claims are non-delegable, and that third-party adjusters/investigators generally do not owe the insured an independent tort duty to conduct a fair and reasonable investigation. The Court invoked Trinity’s policy rationale—avoiding “double recovery” and preserving the insurer’s ultimate responsibility—to support barring Community’s attempt to repackage claim-handling grievances into tort claims against a retained professional.
  • Faith Temple, Inc. v. Church Mut. Ins. Co., 2020 WL 4274582 (W.D. Okla. July 24, 2020), and Jonnada v. Liberty Ins. Corp., 2019 WL 6119233 (W.D. Okla. Nov. 18, 2019): Cited to show that courts applying Oklahoma law have extended Trinity beyond the job title “adjuster,” treating various contract-retained investigators (including engineers) as within Trinity’s logic when their conduct is part of claim evaluation and reporting to the insurer.
  • Dear v. Scottsdale Ins. Co., 947 S.W.2d 915 (Tex. App. 1997), overruled on other grounds, Apex Towing Co. v. Tolin, 41 S.W.3d 118 (Tex. 2001): Used to illustrate a broader, cross-jurisdictional principle: plaintiffs cannot impose personal tort liability on an adjuster/investigator for claim-handling advice by relabeling the theory (negligence, bad faith, interference, etc.).
  • Henderson v. Day Eng’g Consultants, 2024 OK CIV APP 25: Cited for an important limitation: Trinity does not confer “blanket immunity” for all conduct; it shields retained professionals from tort liability for actions performed as part of claim evaluation (implying that truly independent tortious conduct outside that role may still be actionable).
  • Brock v. Thompson, 1997 OK 127: Supplied the governing standard for civil conspiracy in Oklahoma: it is not an independent tort; liability depends on an underlying unlawful act or unlawful means. With no viable underlying tort against Haag, the conspiracy claim necessarily failed.

Legal Reasoning

  1. Certified interlocutory posture was appropriate for a purely legal, case-narrowing question. Applying Rule 1.50 and the guidance of Roach v. Jimmy D. Enters., Ltd. and Pierson v. Canupp, the Court treated the motion to dismiss as presenting a legal issue that affected a substantial portion of the merits because it would dispose of all claims against Haag.
  2. Tortious interference failed because Haag was not a legally cognizable “interferer.” The Court began with Mac Adjustment, Inc. v. Prop. Loss Rsch. Bureau (elements of interference) and then applied the “representative capacity” rule from Voiles v. Santa Fe Mins., Inc. and Ray v. American National Bank & Trust Co.: an entity acting on behalf of a contracting party cannot wrongfully interfere with that party’s contract. Here, by Community’s own pleading, Haag was retained “pursuant to the Policy” to inspect and opine about cause and scope of damage—work integral to the Insurer’s claim evaluation—and reported to the Insurer, which made the ultimate coverage decision. That role placed Haag within the Insurer’s representational sphere for purposes of interference analysis.
  3. Tortious interference also failed because Haag’s conduct was privileged/justified as a matter of law. Oklahoma requires the interference to be “neither justified, privileged nor excusable” (Mac Adjustment). The Court reasoned that because Haag was contractually obligated to inspect and report for the Insurer, its conduct in performing that contracted function was inherently justified/privileged; mere disagreement with its substantive findings does not negate justification. The Court’s citation to Council Tower Ass'n v, Axis Specialty Ins. Co. underscores the principle that claim-investigation statements made within the scope of the investigative assignment are ordinarily justified in this context.
  4. Trinity’s non-delegable-duty framework and anti–double-recovery policy extends to interference-style theories. Although Trinity Baptist Church v. Brotherhood Mut. Ins. Servs. addressed negligence/duty questions involving independent adjusters, this opinion treated Trinity as establishing a broader allocation-of-responsibility principle: the insurer remains responsible for claim handling because its obligations are non-delegable (Timmons v. Royal Globe Ins. Co.; Wathor v. Mut. Assurance Adm’rs, Inc.), and allowing parallel tort liability against the investigator risks duplicative recovery for the same claim-handling injury. The Court expressly applied that policy logic to tortious interference claims, emphasizing that the insured retains its contractual and bad-faith remedies against the insurer.
  5. Civil conspiracy failed because it was purely derivative and lacked an underlying unlawful act. Under Brock v. Thompson, conspiracy requires an underlying unlawful act or unlawful means. Community’s conspiracy theory hinged on the alleged tortious interference (and, in substance, an alleged scheme to minimize the claim). Once interference failed as a matter of law, the conspiracy claim had nothing unlawful to attach to. The Court also relied on Trinity’s rejection of similar “collusion” framing as essentially a restatement of bad faith allegations against the insurer rather than an independent basis of liability against the investigator.

Impact

  • Clarifies and strengthens a liability shield for insurer-retained professionals when acting within claim-evaluation functions. This decision squarely applies the representative-capacity bar (Voiles/Ray) to insurer-retained engineers performing inspections and reporting findings, not just to adjusters in name.
  • Restricts “end-run” pleading against third-party investigators. The Court signaled skepticism toward attempts to repackage claim-handling grievances as tortious interference or civil conspiracy claims against vendors, especially where the insurer remains the decision-maker.
  • Procedural significance: promotes early resolution of vendor-defendant claims. Because the question is legal and tied to the investigator’s role, defendants similarly situated to Haag may more often succeed on motions to dismiss (or other early dispositive motions), narrowing cases to the insurer and other proper defendants.
  • Important limitation preserved. By citing Henderson v. Day Eng’g Consultants, the Court emphasized this is not blanket immunity; liability may still exist for conduct outside claim-evaluation duties or for independently unlawful acts not derivative of the insurer’s claim-handling role.

Complex Concepts Simplified

  • “Tortious interference with contract”: A tort claim against a non-party who improperly causes a contracting party to breach or disrupt a contract. Oklahoma requires, among other things, that the interference be wrongful and not justified or privileged.
  • “Representative capacity”: Acting on behalf of a contracting party (like an agent, representative, or retained professional carrying out a core contractual function). Under Ray v. American National Bank & Trust Co. and Voiles v. Santa Fe Mins., Inc., someone acting in that capacity cannot be treated as an outside meddler who “interferes” with the party’s own contract.
  • “Justified” or “privileged” interference: Even if a contract is affected, the law will not impose interference liability where the conduct is legally permissible—such as performing duties under a valid contract to investigate and report claim facts for an insurer.
  • “Non-delegable duty” (insurance claim handling): The insurer cannot escape responsibility for claim-handling obligations by outsourcing tasks. Under Trinity Baptist Church v. Brotherhood Mut. Ins. Servs. and Timmons v. Royal Globe Ins. Co., the insurer remains the entity accountable to the insured for claim-handling failures.
  • Civil conspiracy (civil, not criminal): In Oklahoma, civil conspiracy is not a standalone tort. Under Brock v. Thompson, it requires an underlying unlawful act (or unlawful means). If the underlying tort fails, the conspiracy claim fails too.

Conclusion

2026 OK 53 crystallizes a practical rule for insurance litigation in Oklahoma: when an insurer retains a professional (including an engineer) to inspect, evaluate, and report on a claim, that professional acts in a representative capacity and is not a proper target for tortious interference or civil conspiracy claims premised on the insurer’s handling of its own policy. The Court anchored its holding in the representative-capacity doctrine of Voiles v. Santa Fe Mins., Inc. and Ray v. American National Bank & Trust Co., reinforced it through the justification element of Mac Adjustment, Inc. v. Prop. Loss Rsch. Bureau, and aligned it with the non-delegable-duty and anti–double-recovery policy articulated in Trinity Baptist Church v. Brotherhood Mut. Ins. Servs.. The result narrows claim-handling tort litigation to the insurer—while preserving the caveat that retained professionals are not immunized from liability for conduct that is independently unlawful or outside their claim-evaluation role.