American Ben. Life Ins. Co. v. McIntyre
| Decision Date | 25 May 1979 |
| Citation | 375 So.2d 239 |
| Parties | 5 Media L. Rep. 1124 AMERICAN BENEFIT LIFE INSURANCE COMPANY v. Mark McINTYRE. 77-781. |
| Court | Alabama Supreme Court |
Robert M. Alton, Jr., W. Stephen Graves, Montgomery, for appellant.
M. R. Nachman, Jr., of Steiner, Crum & Baker, Montgomery, for appellee.
James C. Barton, Birmingham, for amici curiae, Birmingham News Co. and Alabama Press Assn. on rehearing and en banc hearing.
This is an appeal by plaintiff, American Benefit Life Insurance Company (American Benefit) from a summary judgment entered against it and in favor of defendant, Mark McIntyre. We reverse and remand.
On August 31, 1977 The Alabama Journal, a Montgomery, Alabama daily newspaper, published an article authored by defendant, Mark McIntyre, which dealt in pertinent part with a 1976 State Insurance Department report. The published article stated that:
(emphasis added)
On September 21, 1977, there appeared in The Montgomery Advertiser, The Alabama Journal's Sister daily, an article also written by McIntyre, which stated in part:
"Although The Department's report had found American Benefit insolvent by 6.2 million dollars In 1975, Payne (State Insurance Commissioner), as the result of the meeting granted a 4.5 million dollar increase in American Benefit 1976 assets." (emphasis added)
Counsel for American Benefit contacted McIntyre thereafter, pointed out the "falsity" of these statements, and demanded that the articles be retracted. McIntyre, through letter of counsel, responded to American Benefit by stating that the articles were well founded. He did not offer to retract. It appears that McIntyre based the statements principally upon the emphasized portion of the 1976 department report of examination (portions of which are set out below):
Decatur, Alabama
Honorable Charles H. Payne
Commissioner of Insurance
State of Alabama
Montgomery, Alabama
Dear Sir:
Pursuant to your instructions and in accordance with the provisions of the Alabama Insurance Statutes and the resolutions adopted by the National Association of Insurance Commissioners, an examination has been made of the condition and affairs of the
----------------------------------------
DECATUR, ALABAMA
----------------
at its Administrative Office located in the National American Life Building, 8225 Flordia Boulevard, Baton Rouge, Louisiana and at its subsequent removal location in the Mutual Savings Life Insurance Company Building, Decatur, Alabama as of December 31, 1975. The Report of Examination is herewith submitted.
* * * The unreconciled shares situations occurred during the years 1968 and 1970 on the Louisiana Citrus Lands stock and the year 1970 on the Mutual Savings Life Insurance Company stock.
It should be noted that in all cases where a smaller number of shares was reported than previously reported purchased, a higher book value per share was used to arrive at the same total cost.
The Mutual Savings stocks were not physically inspected during the previous examination as all shares were sold in December of 1971 to Superfine Oil and Gas for a collateral loan agreement. The previous report only reconciles the cost of shares bought and sold during the prior three years.
The Company's response to examiners requests for additional information is attached as Exhibit "A" to this report. It says in effect that these matters were resolved in the previous report and Commission's Order dated January 31, 1973 which is attached as Exhibit "B" to this report. All records of that report, hearing and subsequent Order were inspected by the examiners. None of these records indicate any discussion of any missing stock certificates or incorrect inventories of stock made by examiners. The Company's letter of December 8, 1972 in fact states the topics to be discussed in this hearing. This letter is attached as Exhibit "C" to this report.
Had this report of examination been physically conducted and completed immediately upon close of business at December 31, 1975, the Company would have been impaired or insolvent by $6,159,179, determined as follows:
Surplus per Report of Examination $ 71,110.00
1. Decrease of Artfer Note to the amount guaranteed at
12/31 (which was only $5.6 million) $ 2,400,000.00
2. Unsecured loan to Louis J. Roussel which was paid
subsequent to year-end $ 530,289.00
3. Assets which were pledged at December 31, 1975 for
benefit of Superfine Oil & Gas Company $ 3,400,000.00
---------------
Total Decreases $ 6,330,289.00
---------------
Surplus if Examination held at year-end Close of Business $(6,159,179.00)
As pointed out in the appropriate section in the front of this report, one-third of the members of the Board of Directors are not residents of Alabama.
In addition to the undersigned, Mr. Richard F.A. Gandt, Examiner of the Alabama Department participated in this examination until his resignation effective July 14, 1976. The actuarial section of the report was verified by Mr. Robert Dobson of the firm Milliman and Robertson, Inc.
State of Alabama
Department of Insurance
(emphasis added)
American Benefit on October 13, 1977 brought this libel action against McIntyre based upon the excerpts from the articles of August 31 and September 21, 1977. After extensive affidavits, depositions and other materials were filed, and oral arguments heard, McIntyre moved for summary judgment which was granted. From that order American Benefit appeals.
The basic question in this case is whether summary judgment was properly granted.
The threshold question in a libel case is whether the person allegedly defamed is a public official, a public figure or a private individual under the constitutional meaning of those terms. Browning v. Birmingham News, 348 So.2d 455 (Ala.1977). That question is one of law for the court. Browning, Supra.
McIntyre does not argue that American Benefit is a public official, but rather contends that it is a "public figure." Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) defined the category of "public figures" as those persons who do not hold public office but are "nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large." In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) the United States Supreme Court explained this definition:
For the most part those who attain this status (public figures) have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.
Even if the foregoing generalities do not obtain in every instance, the communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private...
To continue reading
Request your trial
-
Oaks v. City of Fairhope, Ala.
...question in a defamation action concerns the status of the person allegedly defamed as a "public figure." American Ben. Life Ins. Co. v. McIntyre, 375 So.2d 239, 242 (Ala.1979). This is a question of law for the court. Fulton v. Advertiser Co., 388 So.2d 533, 536 (Ala.1980), cert. denied su......
-
Bank of Oregon v. Independent News, Inc.
...623 F.2d 264 (3d Cir.1980); Trans World Accounts, Inc. v. Associated Press, 425 F.Supp. 814 (N.D.Cal.1977); American Ben. Life Ins. Co. v. McIntyre, 375 So.2d 239 (Ala.1979) (on rehearing). There simply is no public controversy into which plaintiffs arguably thrust themselves. Merely openin......
-
Jadwin v. Minneapolis Star and Tribune Co.
...magnitude of public dependence and involvement in the activity have been found to be public figures, American Benefit Life Insurance Co. v. McIntyre, 375 So.2d 239, 242 (Ala.1979) (insurance company), as have corporations offering stock to the public, or subjected to investigation by a stat......
-
Brophy v. Philadelphia Newspapers Inc.
...rehearing denied, 481 F.Supp. 866; DeRoburt v. Gannett Co., Inc., 83 F.R.D. 574 (D.Haw.1979); American Benefit Life Insurance Co. v. McIntyre, 375 So.2d 239 (Ala.1979); Nader v. deToledano, 408 A.2d 31 (D.C.App.1979); Berkey v. Delia, 287 Md. 302, 413 A.2d 170 (1980); National Association o......