Friday, August 21, 2009

Indiana CoA Issues Defamation Ruling Today

The case of Dugan v Mittal Steel and Jay Komorowski was heard in the Lake Superior Court V by the Honorable William E. Davis, Judge. This is a defamation case, not a Family Law case, but it should be of interest to anyone who has been the subject of a bitter custody battle or divorce and had statements made against him or has made statements about the judge.

First it may be necessary to give some definitions. Defamation is the act of defaming; false or unjustified injury of the good reputation of another, as by slander or libel. Slander is spoken defamatory content while libel is printed defamatory content.

Christine Dugan appeals the trial court's grant of summary judgment in favor of Mittal Steel USA, Inc. (“Mittal”), and Mittal employee Jay Komorowski (collectively, “Appellees”) on her defamation claim. We affirm in part, reverse in part, and remand for further proceedings. For publication, Cron Judge.

This case revolves around a theft ring at Mittal where Dugan was an employee. Mittal hired an investigative firm who interviewed Dugan and other employees. Mittal subsequently fired Dugan who filed a grievance with her union. An arbitrator determined that Mittal did not “marshal enough evidence to prove that [Dugan] engaged in illegal conduct or otherwise defrauded [Mittal].” Mittal reinstated Dugan the next month.

Dugan filed a complaint against Mittal, Komorowski, and the investigators, alleging defamation per se and intentional infliction of emotional distress. Mittal and Komorowski filed a summary judgment motion after the investigative service had been dismissed. Dugan filed a response. The trial court entered an order granting the motion that reads in pertinent part as follows:

After reviewing the facts in the light most favorable to the non-moving party, the Court hereby finds that the stipulated statements at issue do not constitute defamation per se as a matter of law. The Court also finds that, even if there was a genuine issue of material fact relative to whether she sufficiently stated a claim for defamation per se, the evidence demonstrates that all of the statements at issue are protected by qualified privilege, and there is no evidence to support an abuse of the privilege. As a matter of law, the statements at issue are not sufficiently extreme or outrageous so as to state a claim for intentional infliction of emotional distress and there is no evidence that [Dugan] has suffered emotional distress sufficient to state a claim under this theory as a result of the statements at issue.

The Court had previously defined defamation in this way, “A defamatory communication is one that tends to harm a person's reputation by lowering the person in the community's estimation or deterring third persons from dealing or associating with the person.” Kelley v. Tanoos, 865 N.E.2d 593, 596 (Ind. 2007) (citation, quotation marks, and brackets omitted).

When a person sues for defamation the Court requires that to prevail on a defamation claim, a plaintiff must prove four elements: Hamilton v. Prewett, 860 N.E.2d 1234, 1243 (Ind. Ct. App. 2007), trans. denied.
(1) a communication with defamatory imputation,
(2) malice,
(3) publication, and
(4) damages.

Statements about people are often made with the purpose of disgracing that person and are done so with malicious intent. This is often so in the public forums readily accessible on the Internet. We may often see statements that a person is a criminal, has engaged in some type of misconduct or has committed a sexual offense. In making these statement all four elements are often met. The court provides protection to those making the statements. Specifically, that the statement must be false. “Any statement actionable for defamation must not only be defamatory in nature, but [also] false.” Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130, 136 (Ind. 2006).

The court went further to say that “Communications are considered defamatory per se when they impute
1) criminal conduct;
2) a loathsome disease;
3) misconduct in a person's trade, profession, office, or occupation; or
4) sexual misconduct to the plaintiff.”

The court also provides protection in the doctrine of qualified privilege, which “protects communications made in good faith on any subject matter in which the party making the communication has an interest or a duty, either public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty.” Coachmen Indus., Inc. v. Dunn, 719 N.E.2d 1271, 1276 (Ind. Ct. App. 1999), trans. denied (2000). Qualified immunity protections are often found in statute in such places as the mandatory reporting of suspected child abuse or neglect.

To those who think they may be able to sidestep a defamation suit by using innuendo and letting the reader connect-the-dots you may want to read the court's opinion here - "some communications are reasonably susceptible to either a defamatory or a nondefamatory interpretation. Words not actionable in themselves may become actionable by their allusion to some extrinsic fact, or by being used and understood in a different sense from their natural meaning. Such words are deemed actionable per quod, and they acquire a defamatory meaning when placed in context or are connected with extrinsic facts or circumstances. If the defamatory nature of the words appears without resort to extrinsic facts or circumstances, then the words are deemed actionable per se." McQueen v. Fayette County Sch. Corp., 711 N.E.2d 62, 65 (Ind. Ct. App. 1999) (citations omitted), trans. denied.

To avoid suit for defamation it is necessary that the allegations be true or at least made in good faith with a rational belief that they are true. If you have a bone to pick with someone and want to bring public scorn upon that person through posts on a blog, discussion board, website or some other public medium of communication then it is best to make sure that it is true. The truth is not an absolute defense though. Someone who goes out of his or her way to be overly diligent in postings may still be successfully sued.

In a lawsuit by animal protection volunteers against employees of a government investigating commission who allegedly published defamatory material about them on a government website, the claim was time barred by a one-year New Jersey statute of limitations for defamation claims. The statute of limitations began to run on the date the material was first published on the website, and that time period was not extended by the fact that the website was subsequently updated or modified while continuing to contain the same allegedly defamatory material. Churchill v. State of New Jersey, 876 A.2d 311 (N.J. Super. A.D. 2005).

Statute of limitations barred defamation claims brought by grand jury witness against deputy district attorney and county based on statements made to author of book allegedly falsely describing her as a "felony probationer." The time within which to bring the defamation lawsuit started to run, at the latest, when the book was published and distributed to the public, and was not extended based on the fact that the plaintiff allegedly did not discover that the material was in the book until she subsequently read it. Shively v. Bozanich, No. S094467, 7 Cal. Rptr. 3d 576, 80 P.3d 676 (Cal. 2003).

Indiana is unusual in that its courts have held that the statute of limitations begins when the "damage" of the statement is "susceptible of ascertainment," rather than when the statement was published. Wehling v. Citizens Nat'l Bank, 586 N.E.2d 840 (Ind. 1992). The Wehling court determined that this means the statute of limitations begins when the plaintiff knew about the harm caused by the disputed statements or would have known about the harm if she had exercised due diligence.

Whether you are the one making the defamatory statements or on the receiving end of it other jurisdictions have basically said that nothing can be done about it once that statute of limitations has expired. In Indiana though the standard is when the person first became aware of it or should have through due diligence.

The Indiana statute of limitations is two years.
IC 34-11-2-4
Injury or forfeiture of penalty actions
Sec. 4. An action for:
(1) injury to person or character;
(2) injury to personal property; or
(3) a forfeiture of penalty given by statute;
must be commenced within two (2) years after the cause of action accrues.

Indiana has not yet addressed the single publication rule that I am aware of. The safest way at this time would be to always ensure that the information is truthful or that you have a reasonable belief that it is. Secondly, once it is published don't republish the information. Just provide a link to the original publication.

Stuart Showalter

Indiana Custodial Rights Advocates

©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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