Stoploss Specialists, LLC v. Vericlaim, Inc.
340 F. Supp. 3d 1334
N.D. Ga.2018Background
- StopLoss Specialists (owned by John Lewis) provided disaster mitigation services in Escambia County after April 2014 flooding; VeriClaim (insurer's adjuster) assigned adjuster Tom Rongstad to the loss.
- Rongstad attended daily 10:00 a.m. site meetings with StopLoss personnel and other project participants; tensions and accusatory remarks by Rongstad toward StopLoss were reported.
- On May 10, 2014 Rongstad inspected the Sheriff's Warehouse, observed workers pouring water and squeegeeing floors, and sent an email to eight project stakeholders stating, inter alia, “This appears to be Insurance Fraud.”
- Rongstad did not photograph the incident, did not question StopLoss workers on site, and delegated inquiry to MKA clerks; MKA personnel thought the activity could be legitimate sanitation/decontamination.
- Plaintiffs sued for defamation (among other claims). On cross-motions for summary judgment the court held the May 10 email, as a matter of law, was libel per se (it imputed a crime) and was published to third parties; remaining elements (privilege, fault, and damages/punitive relief) were left for trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the May 10 email is defamatory per se | Rongstad accused StopLoss of insurance fraud; that is a charge of a crime punishable by law | The phrasing "this appears to be" is opinion, not an actionable factual accusation | Court: Phrase reasonably reads as imputing the crime of insurance fraud; constitutes defamation per se as a matter of law |
| Whether the email was published to a third party | Email was sent to eight project stakeholders (MKA, county, insurer reps) | Asserted conditional privilege to communications among project team | Court: Publication element satisfied (email sent to third parties) |
| Whether the communication is conditionally privileged / whether privilege is defeated by malice | Rongstad acted with animus and possible motive (favored competitor); his conduct (no documentation, no questions) supports actual malice or reckless disregard | Rongstad acted in good faith to protect insurer’s interest; communication was limited to appropriate recipients | Court: Conditional privilege may apply, but Plaintiffs produced sufficient evidence raising a genuine fact issue of actual malice/recklessness for jury determination |
| Whether Rongstad was negligent in making the allegation | Plaintiffs: failing to photograph, investigate, or ask workers before accusing supports negligence | Defendants: Rongstad had experience and reasonable basis to suspect fraud; acted within job duties | Court: Genuine factual disputes exist about negligence; triable issue for jury |
Key Cases Cited
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) (opinion may imply provable false facts and be actionable)
- Anderson v. Liberty Lobby, 477 U.S. 242 (1986) (summary judgment standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment burdens)
- Cottrell v. Smith, 299 Ga. 517 (Ga. 2016) (distinguishing opinion from actionable defamatory statements)
- Hammer v. Slater, 20 F.3d 1137 (11th Cir. 1994) (conditional privilege and actual malice standard)
- Smith v. DiFrancesco, 341 Ga. App. 786 (Ga. Ct. App. 2017) (elements of defamation under Georgia law)