Air Wis. Airlines Corp. v. Hoeper

• Decision Date: 23 April 2012
• Docket Number: No. 09SC1050.,09SC1050.
• Citation: 320 P.3d 830
• Parties: AIR WISCONSIN AIRLINES CORPORATION, a Delaware corporation, Petitioner v. William L. HOEPER, Respondent.
• Court: Colorado Supreme Court

320 P.3d 830

AIR WISCONSIN AIRLINES CORPORATION, a Delaware corporation, Petitioner

v.William L. HOEPER, Respondent.

No. 09SC1050.

Supreme Court of Colorado,

En Banc.

March 19, 2012.

Rehearing Denied April 23, 2012.

Jaudon & Avery LLP, Alan D. Avery, David H. Yun, Jared R. Ellis, Denver, Colorado, Fafinski Mary & Johnson, P.A., Donald Chance Mark, Jr., Alyson M. Palmer, Eden Prairie, Minnesota, Attorneys for Petitioner.

Overturf McGath Hull & Doherty, P.C., Scott A. McGath, Jason P. Rietz, Nikolai N. Frant, Lindsey W. Jay, Denver, Colorado, Attorneys for Respondent.

John F. Walsh, United States Attorney, Paul Farley, Assistant United States Attorney, Denver, Colorado, U.S. Department of Justice, Eric Holder, Attorney General, Tony West, Assistant Attorney General, Douglas N. Letter, Appellate Staff, Abby C. Wright, Appellate Staff, Civil Division, Washington, D.C., Attorneys for Amicus Curiae the United States.

Levine Sullivan Koch & Schulz, L.L.P., Thomas B. Kelley, Steven D. Zansberg, Christopher P. Beall, Denver, Colorado, Attorneys for Amicus Curiae the Colorado Press Association.

Justice RICE delivered the Opinion of the Court.

¶ 1 In this defamation action, we address whether a trial court must decide before trial if a party is immune from liability pursuant to the Aviation and Transportation Security Act (ATSA), 49 U.S.C. section 44941 (2006). Applying the principles of federal qualified immunity to the immunity conferred by the ATSA, we conclude that the trial court in this case erred by submitting to the jury the question of whether Air Wisconsin was immune from suit. This error, however, is harmless because we conclude that Air Wisconsin is not entitled to immunity. In addition, our independent review of the record reveals clear and convincing evidence to support a finding of actual malice. We also hold that Air Wisconsin's statements are not protected as opinion and that the evidence is sufficient to support the jury's determination that the statements were false. Accordingly, we affirm the judgment of the court of appeals.

I. Background

¶ 2 Air Wisconsin, a commercial airline, employed William Hoeper as a pilot. The Transportation Security Administration (TSA) had issued Hoeper a firearm under a federal statute that authorizes TSA to deputize volunteer pilots as federal law enforcement officers “to defend the flight decks of aircraft ... against acts of criminal violence or air piracy.” 49 U.S.C. § 44921(a) (2006). Such a pilot is known as a federal flight deck officer (FFDO). Id.

¶ 3 After discontinuing its use of the type of aircraft that Hoeper had piloted for many years, Air Wisconsin required Hoeper to undertake training and pass a test certifying his proficiency in piloting another type of aircraft. Hoeper failed three such tests. Patrick Doyle, a manager at Air Wisconsin involved in Hoeper's testing, testified that after the second failed test, Hoeper lost his temper with Doyle. Doyle's contemporaneous notes of the second test day, however, did not mention the confrontation.¹ In addition, testimony established that Doyle and Hoeper drove together to their hotel after the meeting and had a drink together at the hotel bar. Also, another test administrator testified that, after the third failed test, Hoeper confronted him, but Hoeper's demeanor was not threatening.

¶ 4 After the three failed tests, Air Wisconsin gave Hoeper one last opportunity to pass the test. Hoeper knew that he would likely lose his job if he failed this fourth test. He flew from his home in Denver to Virginia to take the fourth test.

¶ 5 During the test, Hoeper became angry with the test administrators because he believed that the test administrators were deliberately sabotaging his testing. One administrator, Mark Schuerman, testified at trial that Hoeper ended the test abruptly, raised his voice at Schuerman, and used profanity. Schuerman testified that Hoeper's outburst startled him and that he feared for his physical safety during the confrontation, but not after the confrontation ended. Testimony also established that Hoeper told Schuerman that Hoeper intended to call the legal representative of the airline pilots' union to which he belonged.

¶ 6 After Hoeper left the testing facility, Schuerman told Doyle about the confrontation. Specifically, Schuerman testified that he told Doyle only that Hoeper blew up at him and was “very angry with [him].” Schuerman did not tell Doyle that he or anyone else at the testing center believed Hoeper would harm them or others. Doyle then instructed another Air Wisconsin employee who participated in the failed test to drive Hoeper to the airport and Doyle booked Hoeper on a flight from Virginia back to Denver. Doyle never sought nor received any additional information about the confrontation from others who were at the testing center that day or about Hoeper's demeanor after the confrontation.

¶ 7 Doyle knew that Hoeper was an FFDO pilot. He did not know if Hoeper had his government-issued firearm with him on the trip to Virginia, but he knew that Hoeper would have violated FFDO rules by carrying the firearm as a passenger on the airplane from Denver to Virginia. He also never sought nor received any additional information about whether Hoeper actually brought his firearm to Virginia.

¶ 8 Based upon this information, Doyle called TSA to report Hoeper as a possible threat.² By the time Doyle called TSA, Hoeper had been at the airport for about two hours waiting for his flight. After the call, Doyle wrote in his personal notes that he had told TSA that Hoeper was “a disgruntled employee (an FFDO who may be armed)” and that he was “concerned about the whereabouts of [Hoeper's] firearm, and [Hoeper's] mental stability at that time.” At trial, Doyle denied having told TSA anything about Hoeper's mental stability. He added that he did not have the ability to assess Hoeper's mental stability.

¶ 9 The jury found that Doyle made two statements to TSA:

(a) [Hoeper] was an FFDO who may be armed. He was traveling from IAD–DEN later that day and we were concerned about his mental stability and the whereabouts of his firearm.

(b) Unstable pilot in FFDO program was terminated today.

¶ 10 In response, TSA officials arrested Hoeper and searched him.

¶ 11 The day after this incident, Doyle made notes about the meeting with Hoeper that occurred immediately after the second failed test. Doyle wrote that, after Hoeper lost his temper, Doyle ended the meeting “for fear of [his] own physical harm.” He also noted that “[a]fter heated discussion with [Hoeper], and due to my concerns for my safety,” Doyle did not fully fill out a certain FFA form regarding the failed test. Doyle later changed these notes to read “due to my concerns for my safety and the safety of others at the [testing facility].”

¶ 12 Hoeper brought this action in Colorado against Air Wisconsin for defamation under Virginia law, among other claims. The parties agree that Virginia law applies to the substance of Hoeper's claims in this case.

¶ 13 Air Wisconsin moved for summary judgment,³ asserting that it was entitled to immunity as a matter of law under the ATSA. The trial court denied the motion because it determined that the jury was entitled to resolve disputed issues of fact that controlled the determination of immunity. Air Wisconsin also moved for a directed verdict under the same theory after the close of evidence, which the trial court also denied.

¶ 14 The trial court instructed the jury on the components of ATSA immunity and instructed that the jury could not find for Hoeper on the defamation claim if it determined that Air Wisconsin was immune under the ATSA. The jury returned a verdict in favor of Hoeper. The jury found by clear and convincing evidence that the two statements were defamatory and that Air Wisconsin made one or more of the statements “knowing that they were false, or so recklessly as to amount to a willful disregard for the truth.”

¶ 15 Air Wisconsin appealed and the court of appeals affirmed. The court of appeals determined that the question of whether the judge or jury decides immunity under the ATSA is a procedural issue governed by Colorado law. It concluded that, under Colorado law, the trial court properly allowed the jury to determine whether the ATSA granted Air Wisconsin immunity in this case. The court of appeals also determined that clear and convincing evidence supported the jury's finding of actual malice and that the statements Doyle made were not protected as opinion or as substantially true. Air Wisconsin petitioned for certiorari, which we granted.⁴

II. ATSA Immunity

¶ 16 Federal law, not Colorado law, controls our determination of whether the judge or jury decides the issue of immunity under the ATSA. Applying the federal law of qualified immunity, we conclude that the immunity conferred by the ATSA is immunity from suit, not merely immunity from liability for damages. The trial court must therefore determine before trial whether an air carrier is immune from suit. Although the trial court in this case erred by submitting the question to the jury, the error is harmless because we conclude that Air Wisconsin is not entitled to immunity under the ATSA.

A. Federal Law Controls

¶ 17 The court of appeals determined that the right to a civil jury trial in Colorado is procedural and therefore “the allocation of decision-making between judge and jury is a procedural question to be governed by Colorado law.” Hoeper v. Air Wis. Airlines Corp., 232 P.3d 230, 237 (Colo.App.2009). We disagree.

¶ 18 Colorado courts follow federal procedure when deciding immunity under federal law. For example, we look to federal procedures in determining whether a denial of summary judgment in a federal qualified immunity case is immediately appealable. Furlong v. Gardner, 956 P.2d 545, 552 (Colo.1998); see also Awad v. Breeze, 129 P.3d 1039, 1045 (Colo.App.2005). In addition, we have consulted federal law in...