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May 28, 2024
Indictment Establishes Probable Cause

Suit for Malicious Prosecution Requires Favorable Termination of Prosecution

Read the full article at https://lnkd.in/gwTdX8fb, see the full video at https://lnkd.in/gY2WwUBF and at https://lnkd.in/gGrP7hU5 and at https://zalma.com/blog plus more than 4800 posts.

Post 4809

Mrs. Marty Spann alleged that Defendants Asurion Insurance Services, Inc. (“Asurion”); former District Attorney General Bruce Griffey; and Tennessee Wildlife Resource Agency (“TWRA”) employees Ed Carter, Mitchell Bailey, Dale Grandstaff, Brad Jackson, and Shawn Karns (collectively with Griffey, the “State Defendants”) maliciously prosecuted her for evidence tampering and insurance fraud. The court was faced with two Motions to Dismiss filed by the State Defendants and Asurion.

In Marty Spann v. Ed Carter, et al., No. 3:23-cv-01028, United States District Court, M.D. Tennessee, Nashville Division (May 17, 2024) the USDC resolved the issue of malicious prosecution against an insurer and the state.

FACTUAL ALLEGATIONS

Although the operative Amended Complaint reads like a potential blockbuster movie the Court only needed to recite a few allegations to resolve the pending motions. That is, on February 21, 2014, Mrs. Spann was arrested and charged with tampering with her husband’s cellphone-which she allegedly knew was potential evidence in a TWRA investigation-and filing a false insurance claim with Asurion reporting that the cellphone was missing. On September 13, 2022, more than eight years after the arrest, the State of Tennessee dismissed the charges against Mrs. Spann under Tennessee Rule of Criminal Procedure 48(a).

Mrs. Spann then brought this lawsuit against the State Defendants and Asurion for malicious prosecution, alleging that each Defendant played a role in “bringing the baseless action [against her] to begin with” and “continuing to prosecute the action without probable cause.” Asurion and the State Defendants moved to dismiss the Amended Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

ANALYSIS

Malicious Prosecution Under Tennessee Law

To establish a malicious prosecution claim under Tennessee law, a plaintiff must show that:

1. A prior suit or judicial proceeding was instituted without probable cause,
2. Defendant brought such prior action with malice, and
3. The prior action was finally terminated in plaintiff’s favor.

The State Defendants and Asurion argued that Mrs. Spann’s state malicious prosecution claim failed under the third element because the criminal proceeding at issue did not terminate in her favor. They based the argument on the fact that the Tennessee Supreme Court recently clarified that, for purposes of malicious prosecution, an action is terminated in a plaintiff’s favor only if the termination of the underlying criminal proceeding reflects on the merits of the case and was due to the innocence of the accused. There is no language in the Order or Rule 48(a) that reflects on the merits of the case or indicates that the case was terminated due to Mrs. Spann’s innocence.

Accordingly, the Court dismissed Mrs. Spann’s state malicious prosecution claim because she did not allege facts sufficient to show that the dismissal of her criminal charges constituted a favorable termination.

Malicious Prosecution Under Federal Law

The federal claim, 42 U.S.C. § 1983, provides that an individual may bring a private cause of action against anyone who, acting under color of state law, deprives a person of rights, privileges, or immunities secured by the Constitution or conferred by federal statute. To successfully bring a § 1983 malicious prosecution claim under the Fourth Amendment, a plaintiff must plausibly allege four elements:

1. the defendant made, influenced, or participated in the decision to prosecute the plaintiff;
2. there was no probable cause for the prosecution;
3. as a consequence of the legal proceedings, the plaintiff suffered a deprivation of liberty apart from the initial arrest; and
3. the criminal proceeding was resolved in the plaintiff’s favor.

Because the September 13, 2022 Order of Dismissal establishes that Mrs. Spann’s criminal prosecution ended without a conviction, she has plausibly alleged that the criminal proceeding was resolved in her favor.

Although the Complaint does not specify or indicate how Asurion, a private insurance company, acted with state-given authority. Conclusory allegations are insufficient to show that Asurion is a state actor. Accordingly, the Court dismissed Mrs. Spann’s federal malicious prosecution claim against Asurion because the Complaint failed to allege Asurion acted under color of state law.

The grand jury indictment provides a presumption of probable cause for Mrs. Spann’s prosecution and defeats the claim of malicious prosecution.

Mrs. Spann has not come close to rebutting the probable cause presumption because she has not alleged that any State Defendant provided false testimony to the grand jury to secure an indictment. Accordingly, the Court dismissed Mrs. Spann’s remaining federal malicious prosecution claims for failing to rebut the probable cause presumption created by the February 20, 2014 grand jury indictment.

ZALMA OPINION

Mrs. Spann was arrested, based on probable cause, on two crimes including the crime of insurance fraud. The basis of the claim was the dismissal of the prosecution without a finding of fact, a trial or an acquittal. The state just decided they did not want to try Mrs. Spann for the crime. Proving that no good deed goes unpunished Mrs. Spann took the dismissal and decided to try to profit from the good deed of dismissing her criminal prosecution. Her attempt failed because there was no evidence of malicious prosecution.

(c) 2024 Barry Zalma & ClaimSchool, Inc.

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00:08:45
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Post 4846

Posted on September 17, 2026 by Barry Zalma

See the full video at https://lnkd.in/g8rh3JBX and https://lnkd.in/gmkdy-9C, In United States Of America v. Thomas Addaquay, Nos. 25-10609, 25-10611, United States Court of Appeals, Eleventh Circuit (September 9, 2026) the Eleventh Circuit affirmed all challenged convictions, the 150-month aggregate sentence, and the challenged $4,123,474.55 restitution award.

FACTS

In United States Of America v. Thomas Addaquay, United States Of America v. Thomas Addaquay, Nos. 25-10609, 25-10611, United States Court of Appeals, Eleventh Circuit (September 9, 2026) the Eleventh Circuit affirmed all challenged convictions, the 150-month aggregate sentence, and the challenged $4,123,474.55 restitution award.
FACTS

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Post 5489

Posted on September 14, 2026 by Barry Zalma

Fraudster Refuses to Answer Questions About His Alleged Fraud

See the full video at https://lnkd.in/gvicAMDr and at https://lnkd.in/gvicAMDr

In Great American Insurance Co. v. Gemstone Property Management, LLC, et al., No. 23-cv-9100 (LJL), United States District Court, S.D. New York (September 8, 2026) Great American Insurance Company alleged that it was defrauded through a scheme in which Subin Associates, LLP recruited individuals to stage construction-site injuries, arranged unnecessary medical treatment and litigation funding, and pursued fraudulent personal-injury claims.

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1 hour ago
Plaintiff’s Reading of the Policy is Plaintiff’s Reasonable Allegations Posted on October 19, 2026 by Barry Zalma CLASS ACTION THAT STATES A SIMPLE CLEAR AND PLAUSIBLE CAUSE OF ACTION SURVIVES Post 4868 In Sheila Marino v. Farmers New World Life Insura

Plaintiff’s Reading of the Policy is Plaintiff’s Reasonable Allegations

Posted on October 19, 2026 by Barry Zalma

Post 4868

CLASS ACTION THAT STATES A SIMPLE CLEAR AND PLAUSIBLE CAUSE OF ACTION SURVIVES

In Sheila Marino v. Farmers New World Life Insurance Company, No. 2:25-cv-02200-JNW, United States District Court, W.D. Washington, Seattle (October 13, 2026) defendant Farmers New World Life Insurance Company’s (“FNWL”) moved to dismiss Plaintiff Sheila Marino’s putative class action involving flexible universal life insurance.

Marino filed a putative class action in King County Superior Court alleging: (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, and (3) violation of the Washington Consumer Protection Act (CPA).

She pleaded two theories: an “overcharge” theory and an “underpayment of interest” theory asked the Court to take judicial notice of historical Federal Funds Effective Rates.

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Alleged Defamatory Statements Must be Of and Concerning Plaintiffs

Posted on October 16, 2026 by Barry Zalma

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Post 4867

In Michael Moloney and Sergio Cantu v. United Services Automobile Association, No. 04-25-00519-CV, Court of Appeals of Texas, Fourth District, San Antonio (October 14, 2026) Michael Moloney and Sergio Cantu appealed from the trial court’s granting of a traditional motion for summary judgment in favor of United Services Automobile Association (“USAA”) on their defamation claim.
BACKGROUND

Moloney and Cantu sued USAA for defamation, alleging that they are the principals of Informed Roofing & Restoration, LLC (“Informed Roofing”), which is primarily engaged in the residential roofing repair and replacement business, and that an employee or agent of USAA had made false and defamatory statements to the San Antonio Police Department (“SAPD”) concerning them.

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Zalma’s Insurance Fraud Letter – October 15, 2026

ZIFL – Volume 30, Issue 20 Subscribe to ZIFL here https://lnkd.in/gfpn78FM

Posted on October 15, 2026 by Barry Zalma

THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL

Zalma’s Insurance Fraud Letter (ZIFL) continues its 30th year of publication dedicated to those involved in reducing the effect of insurance fraud.

ZIFL is published 24 times a year is written by Barry Zalma.

It is provided FREE to anyone who visits the site at https://lnkd.in/gVT5G9s

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