Downey v. Chutehall Construction Co.
86 Mass. App. Ct. 660
Mass. App. Ct.2014Background
- Downeys hired Follett to evaluate the roof leak and cause of damage to their Beacon Hill townhouse.
- Follett’s Roof Observations report concluded the roof was installed over fiberboard insulation that was soaking wet and recommended full removal.
- Chutehall, the roof installer, faced suit for substandard workmanship; Follett was sued by Chutehall for defamation and G. L. c. 93A claims.
- Superior Court granted Follett summary judgment on defamation and c. 93A, and entered final judgment under Rule 54(b).
- Chutehall appeals contesting whether Follett’s statement was fact or opinion, whether Follett was negligent, whether a conditional privilege applied, and the 54(b) judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Defamation: whether Follett’s statement was fact or opinion. | Chutehall argues the statement is an unambiguous factual assertion. | Follett contends the statement was a professional opinion within privilege. | Statement could be read as fact; however, privilege governs and dispatches liability. |
| Whether Follett acted with fault undermining privilege. | Chutehall claims recklessness or fault defeated privilege. | Follett argues there was no recklessness; privilege should apply. | No genuine issue of recklessness; privilege not abused. |
| Whether Follett’s statement was protected by a conditional privilege. | Chutehall asserts privilege did not apply to a defamatory claim. | Follett’s statements were within a common business interest to evaluate roof leakage. | Statement protected by conditional privilege; no abuse established. |
| Whether the 54(b) judgment directing finality was proper. | Chutehall sought to vacate or reconsider the final judgment. | 54(b) permissible where multiple claims exist and delay is unwarranted. | No just reason for delay; entry of final judgment proper. |
Key Cases Cited
- King v. Globe Newspaper Co., 400 Mass. 705 (Mass. 1987) (distinguishing fact from opinion when defamation is at issue)
- Bratt v. International Bus. Machs. Corp., 392 Mass. 508 (Mass. 1984) (recklessness required to defeat conditional privilege)
- HipSaver, Inc. v. Kiel, 464 Mass. 517 (Mass. 2013) (reckless disregard standard for privilege; what defendant believed true matters)
- Foley v. Polaroid Corp., 400 Mass. 82 (Mass. 1987) (test for negligence and proof of fault in defamation context)