CHRISTOPHER DOWNEY & another vs. CHUTEHALL CONSTRUCTION CO., LTD.; THE FOLLETT COMPANY, INC., third-party defendant.
No. 13-P-819
86 Mass. App. Ct. 660 (2014)
November 13, 2014
Suffolk. September 15, 2014. - November 13, 2014. Present: BERRY, KAFKER, & CARHART, JJ.
Libel and Slander. Consumer Protection Act, Unfair or deceptive act. Privileged Communication. Evidence, Opinion, Privileged communication. Practice, Civil, Summary judgment, Entry of judgment.
In the circumstances of a third-party complaint in a civil action, the judge properly granted summary judgment in favor of the defendant on a claim of defamation arising from a statement in the defendant‘s report about a roof that the plaintiff had installed, where, although the unqualified factual assertion that the defendant made in the report was not an unambiguous statement of opinion appropriate for summary judgment, the defendant enjoyed a conditional privilege in making the statement (in that the defendant and the recipient of the statement, a homeowner who hired the defendant to inspect the roof, had a common interest in ascertaining the cause of a leak in the roof and the statement was reasonably calculated to further or protect that interest) and nothing in the record suggested that the defendant had forfeited that privilege through recklessness [662-669]; further, the judge properly granted summary judgment in favor of the defendant on a claim of a violation of
In a civil action, the judge properly directed entry of a final judgment on a third-party complaint after granting summary judgment in favor of the third-party defendant, where there was no just reason to delay entry of judgment, given that the third-party claims were independent of the claims in the original complaint. [669]
CIVIL ACTION commenced in the Superior Court Department on July 2, 2010.
A motion for partial summary judgment was heard by Judith Fabricant, J., and entry of final and separate judgment was ordered by her.
John D. Fitzpatrick for Chutehall Construction Co., Ltd.
Mairead Downey.1
KAFKER, J. Homeowners Christopher and Mairead Downey (the Downeys) hired a contractor, The Follett Company, Inc. (Follett), to investigate the cause of their leaky roof. Follett reported that the roof had been installed a number of years earlier over fiberboard roof insulation that was soaking wet, thereby causing the later leakage. The Downeys then sued the installer of the roof, Chutehall Construction Co., Ltd. (Chutehall), for substandard workmanship, and Chutehall brought third-party defamation and
On appeal, Chutehall argues that the judge erred in deciding as a matter of law (1) that Follett‘s report about the roof constituted a statement of opinion not fact, (2) that Follett was not negligent in making the statement, and (3) that the statement was protected by a conditional privilege. Chutehall also argues that the judge erred in allowing the motion for entry of separate and final judgment. We conclude that the statement by Follett was protected by a conditional privilege that was not abused and, therefore, summary judgment was properly allowed on the defamation claim. As the c. 93A claim depends on the merits of the defamation claim, summary judgment was properly allowed on this claim as well. There was no error in the entry of judgment pursuant to
1. Background. In 2005, the Downeys entered a contract with Chutehall pursuant to which Chutehall installed a new rubber roof system on the Downeys’ townhouse in the Beacon Hill section of Boston. In 2009, another contractor, hired by the Downeys to install a rooftop heating, ventilation, and air conditioning (HVAC) unit for their home, cut a hole in the roof and discovered that the underlying roof system was wet. At the contractor‘s suggestion, the Downeys engaged Follett and J.M. Lydon Corp. (Lydon), both roofing contractors, to inspect the roof. In addition, the Downeys hired Gregory R. Doelp, a structural engineer, to evaluate the roof and any proposals submitted by Follett and Lydon. After Follett, Lydon, and Doelp performed
In 2010, the Downeys filed a complaint in Superior Court against Chutehall to recover damages to their townhouse allegedly caused by substandard roofing work performed by Chutehall in 2005. In response to the Downeys’ lawsuit, Chutehall asserted third-party claims against Follett for defamation and violation of
2. Discussion. The defendant must prevail on its motion for summary judgment “if [it] demonstrates, by reference to material described in Mass. R. Civ. P. 56 (c), unmet by countervailing materials, that the [plaintiff] has no reasonable expectation of proving an essential element of [its] case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). “A complete failure of proof concerning an essential element of the [plaintiff‘s] case renders all other facts immaterial.” Id. at 711. We view the evidence
a. Chutehall‘s defamation claim. In order for Chutehall to recover on its defamation claim, it must establish that (1) Follett published a defamatory statement of and concerning Chutehall; (2) the statement was a false statement of fact (as opposed to opinion); (3) Follett was at fault for making the statement and any privilege that may have attached to the statement was abused; and (4) Chutehall suffered damages as a result, or the statement was of the type that is actionable without proof of economic loss. See Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 858-859 (1975); Phelan v. May Dept. Stores Co., 443 Mass. 52, 55-56 (2004); Restatement (Second) of Torts §§ 558, 599, 600 (1977).
i. Distinction between opinion and fact. To determine whether the statement in question is defamatory, the court must decide whether it is an assertion of fact or opinion. The distinction is often subtle and difficult, particularly at the summary judgment stage. King v. Globe Newspaper Co., 400 Mass. 705, 709 (1987), cert. denied, 485 U.S. 940 and 485 U.S. 962 (1988), quoting from Janklow v. Newsweek, Inc., 788 F.2d 1300, 1302 (8th Cir. 1986) (“It is hard to draw a bright line between ‘fact’ and ‘opinion‘“). The determination is considered a question of law only when it is unambiguous. See ibid. See also Driscoll v. Board of Trustees of Milton Academy, 70 Mass. App. Ct. 285, 296 (2007); Gray v. St. Martin‘s Press, Inc., 221 F.3d 243, 248 (1st Cir. 2000), cert. denied, 531 U.S. 1075 (2001). In contrast, “the determination whether a statement is a factual assertion or a statement of pure opinion is a question of fact if the statement reasonably can be understood both ways.” King v. Globe Newspaper Co., supra. See Aldoupolis v. Globe Newspaper Co., 398 Mass. 731, 733-734 (1986). Therefore, in a defamation action, “the defendant is entitled to summary judgment if the challenged statement cannot reasonably be construed as a statement of fact.” King v. Globe Newspaper Co., supra. “However, if a statement is susceptible of being read by a reasonable person as either a factual statement or an opinion, it is for the jury to determine.” Aldoupolis v. Globe Newspaper Co., supra.
In determining whether an assertion is a statement of fact or opinion, “the test to be applied ... requires that the court examine the statement in its totality in the context in which it was uttered
We do not consider this assertion an unambiguous statement of opinion appropriate for summary judgment. The defamatory statement on its face appears directly and definitively factual:3 “This roof was installed over a EPDM roof system that had fiberboard roof insulation that was soaking wet.” Importantly, in contrast to statements of opinion, statements that present or imply the existence of facts that can be proven true or false are actionable. See Levinsky‘s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 127 (1st Cir. 1997), citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19 (1990); Gray v. St. Martin‘s Press, Inc., 221 F.3d at 248, also citing Milkovich, supra at 18-20. Here, Follett stated that the Downeys’ roof had been installed over wet insulation. This appears to be an assertion of fact that, at least in theory, could be verified as either true or false.4
Nevertheless, as the motion judge pointed out, the installation of the roof was done four years earlier when Follett was not present, and thus the motion judge concluded that the statement “can reasonably be understood only as an expression of Follett‘s professional judgment, based on its observations at the time it examined the roof.” The published statement is not, however, in any way introduced as an expression of opinion. See, e.g., Information Control Corp. v. Genesis One Computer Corp., 611 F.2d at 784 (statement “cautiously prefaced as representing ‘the opinion of ... management’ “). Nor is the statement expressly qualified or limited as being based on the results of particular observations. See Restatement (Second) of Torts § 566 comment
In sum, although it is a close question, we conclude that the unqualified factual assertion here, which might have been proven true or false, could reasonably be construed as a defamatory statement of fact. Summary judgment should not have been granted on the ground that it was an unambiguous opinion. We therefore turn to the questions of fault and privilege.
ii. Demonstration of fault. Private persons or entities may recover on defamation claims on proof that the defendant was negligent in publishing defamatory statements, which reasonably could be interpreted to refer to the plaintiff, assuming proof of all other elements of a claim for defamation has been provided. See Stone v. Essex County Newspapers, Inc., 367 Mass. at 858; New England Tractor-Trailer Training of Conn., Inc. v. Globe Newspaper Co., 395 Mass. 471, 477 (1985). If, however, a conditional privilege applies to the communication, negligence is not enough, as at least recklessness is required. See Bratt v. International Bus. Machs. Corp., 392 Mass. 508, 514 (1984). We turn to the privilege issue next, as we consider it dispositive in the instant case.
iii. Conditional privilege. “The burden is on the defendant[ ] to prove, when the issue is properly raised, the existence of a privilege to publish a defamatory communication.” Jones v. Taibbi, 400 Mass. 786, 802 (1987). Where, as here, a defendant in a defamation action establishes the existence of a privilege, the burden rests upon the plaintiff to raise a trial-worthy issue of an abuse of that privilege. See Judd v. McCormack, 27 Mass. App. Ct. 167, 173 (1989); Dragonas v. School Comm. of Melrose, 64 Mass. App. Ct. at 438. In this case, this would require Chutehall to have introduced sufficient evidence to establish that Follett published the statements recklessly. Based on our review of the
Under Massachusetts law, a publication will be deemed conditionally privileged if the publisher of the statement and the recipient have a common interest in the subject and the statement is “reasonably calculated to further or protect that interest.” Sheehan v. Tobin, 326 Mass. 185, 190-191 (1950) (citation omitted). See Humphrey v. National Semiconductor Corp., 18 Mass. App. Ct. 132, 133 (1984) (privilege applies to employee of one company making disparaging comments about performance of employee of another company with which first has business relationship); Flotech, Inc. v. E.I. Du Pont de Nemours & Co., 814 F.2d 775, 778 (1st Cir. 1987) (privilege applies to company‘s statement that it views its own product as ineffective for particular purpose even if statement implies ineffectiveness of third party‘s product); Restatement (Second) of Torts § 596. The courts have consistently recognized the common interest privilege within the business context. See Bratt v. International Bus. Machs. Corp., 392 Mass. at 512-513 (“Massachusetts courts have recognized that a person may possess a conditional privilege to publish defamatory material if the publication is reasonably necessary to the protection or furtherance of a legitimate business interest“); Humphrey v. National Semiconductor Corp., supra at 133-134.
Despite Chutehall‘s assertions to the contrary, Follett‘s statement involved a common business interest between Follett and the Downeys, i.e., the evaluation of the likely source of the roof‘s leak so that repairs could be made. Follett‘s statement furthered this common business interest as it affected the Downeys’ decision on how they should proceed in addressing the roof‘s leakage. Additionally, the statement was made in Follett‘s professional capacity and only after the Downeys specifically requested Follett to explain the source of the leak. The exchange between Follett and the Downeys is assuredly of the type contemplated by the privilege, and to claim otherwise would rob the privilege of its intended purpose.
This conclusion is supported by case law from other jurisdictions as well. As seen in Briggs v. Newton, 984 P.2d 1113, 1121 (Alaska 1999), the common business interest privilege was applied to a statement made by a contractor to his client regarding
Moreover, nothing in the record suggests that this conditional privilege was forfeited by Follett. Massachusetts case law maintains that a publisher may abuse, and lose, a conditional privilege in a number of ways, including if the plaintiff offers proof that the defendant (1) acted out of malice, (2) knew the information was false, (3) had no reason to believe the information to be true, (4) acted in reckless disregard of the truth or the defendant‘s rights, or (5) published the information unnecessarily, unreasonably, or excessively. See Bratt v. International Bus. Machs. Corp., 392 Mass. at 513-515; Dragonas v. School Comm. of Melrose, 64 Mass. App. Ct. at 438-439. As underscored by the Supreme Judicial Court, “whatever the manner of abuse, recklessness, at least, should be required” to overcome the privilege. Bratt v. International Bus. Machs. Corp., supra at 515. See Dexter‘s Hearthside Restaurant, Inc. v. Whitehall Co., 24 Mass. App. Ct. 217, 223 (1987) (“Recklessness is the minimum level of misconduct“). Negligence is not enough to cause the loss of the privilege.
Recklessness is a difficult standard to meet. “[R]eckless conduct is not measured by whether a reasonably prudent man would have published or would have investigated before publishing.” HipSaver, Inc. v. Kiel, 464 Mass. 517, 530 (2013), quoting from St. Amant v. Thompson, 390 U.S. 727, 731 (1968). Rather, the defendant‘s conduct is measured by what the defendant had reason to believe. See Foley v. Polaroid Corp., 400 Mass. 82, 95-96 (1987). “There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” HipSaver, Inc. v. Kiel, supra. Cf. Garrison v. Louisiana, 379 U.S. 64, 74 (1964) (equating “reckless disregard” with “high degree of awareness of ... probable falsity“).
Follett‘s deposition, through its designee, Donald Follett, demonstrates that he undertook an investigation before proffering the
Similarly, the facts led Lydon, the other roofing contractor that examined the Downeys’ roof, to conclude, “This roof would be adequate if it was not installed over a wet roof.” Doelp, the engineer hired by the Downeys to evaluate the roof and the repair proposals made by Follett and Lydon, testified that Follett‘s conclusion was plausible, and that Donald Follett, a roofer, would be in a “better position than I would be to make that judgment.”
Doelp did, however, acknowledge some uncertainty. Based on his own investigation, Doelp testified that he could not be sure Chutehall‘s 2005 work on the Downeys’ roof was the source of the leakage problems, as he had also identified other potential sources of the wetness of the insulation and leakage. He noted, for example, that there were potential leak problems around the head house, chimney, and metal parapet. He further stated that the water “could have been there when they put the roof over. [But] [i]t could have happened later.” He did not know. He speculated that he “could figure that out, but ... was never asked to do that.”
The record here does not support a finding of recklessness. The facts at Follett‘s disposal provided solid reasons to believe the statement it made to the Downeys. Donald Follett testified that he was firmly convinced by his investigation. Although there is a question whether Follett should have done more to investigate the source of the leak, and that leads to some uncertainty about the correctness of its conclusions, in the absence of any evidence that Follett “entertained serious doubts as to the truth of [the] publication,” HipSaver, Inc. v. Kiel, 464 Mass. at 530, Chutehall has failed to demonstrate a genuine issue of material fact regarding recklessness. The judge did not err in allowing Follett‘s motion
b. The G. L. c. 93A claim. As conceded by Chutehall, its
c. Final and separate judgment. Under
3. Conclusion. For the reasons discussed above, the judge did not err in allowing Follett‘s motion for summary judgment on Chutehall‘s defamation and c. 93A claims or in entering a separate and final judgment as to those claims.
Judgment affirmed.