Brown v. American Broadcasting Co., Inc.

• Citation: 704 F.2d 1296
• Decision Date: 11 April 1983
• Docket Number: 82-1236,Nos. 82-1192,s. 82-1192
• Parties: Glenda C. BROWN, Appellant, v. AMERICAN BROADCASTING CO., INC. Margaret Osmer-McQuade, Kathleen T. Gardner, David L. Holton, Margaret Dixon, Val J. Halamandaris, Robert Weiner, Appellees. Glenda C. BROWN, Appellee, v. AMERICAN BROADCASTING CO., INC., Margaret Osmer-McQuade, Appellants, and Kathleen T. Gardner, David L. Holton, Margaret Dixon, Val J. Halamandaris, Robert Weiner, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1296

704 F.2d 1296

Glenda C. BROWN, Appellant, v. AMERICAN BROADCASTING CO., INC. Margaret Osmer-McQuade, Kathleen T. Gardner, David L. Holton, Margaret

Dixon, Val J. Halamandaris, Robert

Weiner, Appellees.

Glenda C. BROWN, Appellee, v. AMERICAN BROADCASTING CO., INC., Margaret Osmer-McQuade, Appellants, and Kathleen T. Gardner, David L. Holton, Margaret Dixon, Val J.

Halamandaris, Robert Weiner, Defendants.

Nos. 82-1192, 82-1236.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 10, 1982.

Decided April 11, 1983.

John P. McGeehan, Alexandria, Va. (Caruthers, Buscher & Caruthers, P.C., Burke, Va., on brief), for appellant.

Alan I. Baron, P.C., Baltimore, Md. (Ellen Scalettar, Finley, Kumble, Wagner, Heine, Underberg & Casey, Washington, D.C., on brief), and Steven Ross, Washington, D.C. (Stanley Brand, Michael Murray, Office of Counsel to the Clerk, U.S. House of Representatives, Washington, D.C., on brief), for appellees.

Before WINTER, Chief Judge, CHAPMAN, Circuit Judge, and BUTZNER, Senior Circuit Judge.

CHAPMAN, Circuit Judge:

Plaintiff and defendants appeal various rulings made by the district court during the trial of this action for defamation, invasion of privacy, interference with a business, conspiracy and violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 2510 et seq. (1976 and Supp.1979). The district judge held that all but two of appellant's causes of action were barred by the applicable statutes of limitation and the jury returned a verdict for defendants on the remaining claims.

Plaintiff argues (1) that the district court improperly applied Virginia's one and two-year statutes of limitations in dismissing her actions for defamation, conspiracy to injure her reputation, invasion of privacy and illegal electronic surveillance under the Omnibus Crime Control Act; and (2) that the district court improperly excluded the testimony of her expert witness because she failed to comply with a pre-trial order.

The defendants appeal three rulings of the district court: (1) the court's application of Virginia's five year statute of limitations to plaintiff's claim for conspiracy to interfere with her business and intentional interference with her business; (2) the court's holding that Virginia does have a common law right of privacy; and (3) the court's ruling that personal jurisdiction was proper over defendant Osmer-McQuade under the Virginia long arm statute. The defendants also raise an issue not addressed by the district court: whether defendants are protected by the consent exception to the prohibition against unauthorized electronic surveillance contained in the Omnibus Crime Control Act, 18 U.S.C. Sec. 2511(2)(d).

For the reasons stated below, we affirm the district court's application of Virginia's two year statute of limitations in dismissing plaintiff's claims for defamation and conspiracy to injure her reputation. We also affirm the court's ruling that personal jurisdiction was proper over defendant Osmer-McQuade under Virginia's long-arm statute.

However, we reverse the district court's holding that a common law action for invasion of privacy exists in Virginia. Because of our holding on this point, it is unnecessary for us to consider whether the district court correctly applied Virginia's two year statute of limitations in dismissing this claim.

We also reverse the district court's application of Virginia's five year statute of limitations to plaintiff's claims for conspiracy to interfere with her business and intentional interference with her business.

Further, we reverse the district court's application of the two-year statute of limitations to plaintiff's claim for illegal electronic surveillance because the court failed to consider the crucial question of when the statute of limitations begins to run with respect to this claim. On remand, it will also be necessary to consider whether the defendants are protected by the consent exception to the statutory liability for unauthorized surveillance. Finally, our remand of this case allows a simple resolution of plaintiff's appeal from the district court's exclusion of the testimony of her expert. Because the case will have to be retried unless the district court finds that plaintiff's cause of action under the Omnibus Crime Control Act is clearly barred by the statute of limitations, we direct the district court to allow the parties time for additional discovery in the event the case is retried.

I

The incidents on which this action is based arose out of a 1978 investigation by the House of Representatives Select Committee on Aging into fraudulent sales practices in the sale of insurance to the elderly. During the investigation, defendants Kathleen T. Gardner, Val J. Halamandaris and Robert Weiner, who were employees of the House committee, gave ABC exclusive access to the committee's activities and the work produced by the committee.

In November 1978 committee employees staged a meeting in Arlington, Virginia at the house of defendant David L. Holton, an employee of the committee, between the plaintiff, defendant Gardner and defendant Margaret Dixon, also a committee employee. The plaintiff's presence at the meeting was arranged by one of the committee's employees who telephoned Ms. Brown's manager at Bankers Life & Casualty Company and stated that her "mother-in-law" wanted someone to review her health insurance policies. The meeting between the plaintiff, Ms. Dixon and Ms. Gardner was secretly videotaped and recorded by ABC employees. ABC edited the one and one-half hour meeting to approximately ten seconds and broadcast the segment on November 27 and 29, 1978. Defendant Margaret Osmer-McQuade wrote and reported the story.

The broadcast contained film of Ms. Brown talking with committee investigators followed by a statement of Osmer-McQuade that plaintiff was "overloading" defendant Dixon with insurance. It does not appear from the record that the broadcast identified Ms. Brown in any way other than through the use of her picture as contained in this film.

Plaintiff filed this action January 27, 1981 in the United States District Court, alleging five causes of action: (1) conspiracy to injure her reputation and interfere with her business of selling insurance; (2) violation of the Federal Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sec. 2510 et seq. (1976 and Supp.1979); (3) intentional interference with her insurance business; (4) violation of her right of privacy; and (5) defamation. The district court dismissed plaintiff's claims for defamation, invasion of privacy, conspiracy to injure her reputation, and illegal electronic surveillance holding that these claims were barred by Virginia's one and two-year statutes of limitation for personal injury actions, Va.Code Ann. Secs. 8.01-243(A) and 8.01-248 (Michie 1977). The remaining claims, intentional interference with plaintiff's business and conspiracy to interfere with plaintiff's business, were tried before a jury. The jury returned a verdict for all the defendants, and both plaintiff and defendants appealed from various rulings of the district court.

II

We address first plaintiff's argument that the district court was incorrect in applying Virginia's one and two-year statutes of limitation to dismiss her claims for defamation, and conspiracy to injure her reputation. We will address separately plaintiff's claim that the district court improperly applied the two-year statute of limitation to her claim for illegal electronic surveillance.

With jurisdiction based upon diversity of citizenship, the court must look to Virginia law for a determination of both the applicable statute of limitations and the time at which a claim accrues under the applicable statute. See Ragan v. Merchants Transfer and Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949). Ms. Brown does not dispute that the correct statute of limitations to be applied is either Virginia's one or two-year statute for personal injury claims. Va.Code Ann. Secs. 8.01-248 and 8.01-243(A).

Plaintiff argues that the district court was incorrect in holding that the date of accrual for her claim under Virginia law was the date of the ABC broadcasts, November 27 and 29, 1978. Ms. Brown did not file her complaint until January 27, 1981, so her claims are clearly barred under either the one or two-year statute if the district court was correct in holding that the claims accrued simultaneously with the broadcasts.

Plaintiff argues that her claims did not accrue until September 1980 when she first learned of the broadcast and became emotionally upset and embarrassed so that her ability to answer telephone sales inquiries was affected. In support of her argument, Ms. Brown cites the Virginia rule for accrual of personal injury claims, that the statute of limitations does not commence to run against a claim for personal injury until the plaintiff is actually injured by defendant's wrongful act, despite the earlier occurrence of the wrongful act. Locke v. Johns-Manville Corp., 221 Va. 951, 275 S.E.2d 900 (1981). The rationale of this rule is that the statute of limitations cannot begin to run against a claim until all the elements of the cause of action exist and that one of the essential elements of a cause of action for personal injury is the injury itself. See Locke, 221 Va. at 955, 275 S.E.2d at 904.

However, this rule does not help plaintiff avoid the statute of limitations. First, emotional distress is not a necessary element of a cause of action for defamation or conspiracy to injure a person's reputation. If persons watching either broadcast recognized plaintiff and she was defamed or her reputation damaged thereby, such injury was immediate. Accordingly, the accrual of these two claims was not dependent on plaintiff's experiencing emotional distress when she learned of the broadcasts. All the necessary elements of these...