The Oklahoma Supreme Court has handed insurers and their retained experts a significant victory in Community Resourcing Incorporated d/b/a Our Daily Bread Food and Resource Center v. Berkshire Hathaway Specialty Insurance. 1 The court held that the policyholder could not sue Haag Engineering and Chris Hickman for tortious interference with contract or civil conspiracy because Haag was acting as Berkshire Hathaway Specialty Insurance’s representative when inspecting the property and reporting its findings to the insurer.
The new practical rule of law in Oklahoma is that an insurer-retained engineering company, adjuster, consultant, or similar claim vendor hired to inspect, evaluate, and report to the insurance company is treated as the insurer’s representative for that work. Because of that representative capacity, the vendor is privileged from a policyholder’s tortious interference claim based on the claim-evaluation work. If that claim fails, a civil conspiracy claim based on the same conduct fails as well because Oklahoma law does not treat civil conspiracy as an independent tort.
Community did not merely allege that Haag was wrong. Community alleged that Haag and Hickman produced findings supporting Berkshire rather than conducting a truthful and fair inspection, and did so with a financial incentive to earn more insurer business and preserve the relationship. Those allegations were not proven because the case had not proceeded that far. There had been no discovery into Haag’s financial incentives, communications with Berkshire, drafts, methodology, retention history, edits, claim-handling instructions, or whether the report was genuinely independent.
In my opinion, this is why Justice Gurich’s dissent, joined by Justice Combs, is more persuasive on the procedural posture. The dissent correctly reframed the issue. The question was not whether an ordinary insurer-retained consultant is immune from negligence or bad faith claims. The question was whether Oklahoma law permits intentional tort claims against a third-party engineering firm alleged to have submitted a report to defeat an insured’s claim. That framing better fits the allegations. It does not assume Haag did anything wrong. It simply says those allegations should not be erased before discovery.
The majority relied heavily on Trinity Baptist Church v. Brotherhood Mut. Ins. Services, 341 P.3d 75 (OK 2014), holding that an independent adjuster does not owe a separate legal duty to the insured to conduct a fair and reasonable investigation because the insurer’s claim duties are nondelegable. The insurer owes the duty. The insurer cannot delegate that duty away. The insurer remains responsible for an unreasonable investigation.
But Community was not suing Haag for bad faith or ordinary negligence. It sued for intentional torts. Trinity Baptist should not become a magic cloak thrown over every insurer-retained vendor who allegedly creates a claim-defeating report for economic gain. The dissent recognized that Trinity Baptist was designed to prevent duplicative negligence and bad faith claims, not to provide sweeping immunity for intentional misconduct by claim-side professionals.
The majority of the court reasoned that Haag was hired to inspect and report, that Haag reported to Berkshire, and that Berkshire made the final coverage decision. If the alleged misconduct is contained in the inspection and report itself, the majority’s rule makes it very difficult to hold the vendor directly accountable to the policyholder. The majority’s rule creates a channeling effect that all roads lead back to the insurer.
The danger is an outsourced denial architecture. The insurer does not need to say, “Deny this claim.” It can hire vendors who understand the desired claim philosophy, apply restrictive definitions of damage, frame causation narrowly, omit unfavorable observations, and produce a report that gives the insurer a paper shield. The insurer then says it relied on an expert. The expert says it merely reported to the insurer. The policyholder is left fighting the shadow and not the hand that cast it. I discussed these issues in depth in Want to Win a Hailstorm Damage Lawsuit? Hire The Right Experts and Establish a Theory of Loss Before Filing a Lawsuit.
I further wrote about this specific concern years ago in the context of hail claims, Haag, and insurance company claim practices in Hail, HAAG, and Travelers Insurance Claims. Many insurers developed operational responses to control hail claim severity. Preferred engineering vendors became part of that system. I have also written about insurer-dependent experts who frame opinions in ways that neatly dovetail with policy exclusions and claim-payment reduction strategies as addressed in The Plague of Wrong and Insurer Worded Engineering Reports by Insurance Company Retained Engineers. This Oklahoma decision makes those concerns more important, not less.
So, what prevents outcome-oriented vendor opinions after this ruling? “Not enough.” That is the honest answer.
The court majority’s answer is that the insurer remains liable. If Haag or another vendor performs a biased investigation, the insurer can still be liable for breach of contract and bad faith because the insurer’s claim duties are nondelegable. That is true, but incomplete. The insurer owns the claim decision. The insurer cannot outsource honesty. If the investigation is slanted, inadequate, or outcome-driven, the insurer should pay the price in a bad faith case.
But insurer liability does not always deter the vendor. A vendor may view insurer loyalty as profitable, while the insurer treats occasional bad-faith exposure as a cost of doing business. When repeat business drives the economics, the market can reward the expert who helps reduce severity, not the expert who gives the fairest answer.
Courts worry about double recovery. I understand that. Nobody should recover the same damages twice. But courts handle overlapping damages every day through verdict forms, offsets, jury instructions, and post-trial rulings. The fear of double recovery should not become discovery-free immunity.
The better rule would protect honest experts from routine negligence suits while preserving accountability for intentional misconduct. An insurer-retained engineer should not be sued merely because the policyholder disagrees with the conclusion. Experts are allowed to be wrong. They are allowed to disagree. But they should not knowingly shade, fabricate, omit, or manipulate facts to produce a financially useful claim outcome and then hide behind “representative capacity.”
In future Oklahoma cases, direct claims against insurer-retained vendors for tortious interference and conspiracy will face a steep uphill fight. The better litigation path will often be to keep the focus on the insurer. The vendor’s conduct should be pleaded and proven as part of the insurer’s unreasonable investigation, claim delay, underpayment, and bad faith. The vendor may be dismissed from the caption, but it should not disappear from the case.
Policyholder lawyers should seek every communication between the insurer and vendor. They should seek drafts, metadata, photographs, measurements, roof diagrams, weather data, claim notes, instructions, revisions, and all communications about the assignment. They should examine everything in the history of business development relationship between the insurer and vendor, how often the insurer hires that vendor, how much money changes hands, whether the vendor’s conclusions favor insurers with unusual consistency, and whether the vendor used a methodology it would apply if the policyholder had hired it.
Public adjusters and policyholders should also learn from this ruling. Documentation matters more than ever. Photographs, videos, measurements, contemporaneous observations, samples, repair invoices, maintenance records, and independent expert reports may become the only meaningful counterweight to an insurer-retained report. A policyholder cannot wait for the insurer’s expert report, which may already have shaped the claim narrative.
The ruling also has implications for insurance regulators and legislators. If courts are going to channel liability back to insurers, regulators must examine whether insurers are using vendor programs to manufacture claim outcomes. Legislatures should consider narrow statutes preserving protection for ordinary professional mistakes while allowing claims for knowingly false reports, fabricated observations, concealed conflicts, intentional misrepresentations, or conduct primarily serving the vendor’s own financial interests rather than legitimate claim evaluation. While internal ethical compliance audits by insurers should be concerned about these same issues, the profit goals of insurers certainly do not incentivize deep research into this ethical issue.
Honest engineers should welcome that rule. Honest experts do not need immunity for fraud. They need protection from frivolous lawsuits. There is a world of difference.
The majority decision is a win for wrongful-acting insurers and their outcome-oriented vendors. In Oklahoma, insurer-retained claim experts are now largely treated as extensions of the insurer when they inspect and report on a claim. They are not directly accountable for intentional wrongful acts causing underpayment and denial of policyholder claims.
Thought For The Day
“The risk reasonably to be perceived defines the duty to be obeyed.”
— Benjamin N. Cardozo, Palsgraf v. Long Island Railroad Co.
1 Community Resourcing v. Berkshire Hathaway Specialty Ins., 2026 OK 53, — P.3d —, 2026 WL 1875589 (Okla. June 30, 2026). See Haag Engineering Initial Brief, Policyholder Answer Brief, and Haag Reply Brief.
