A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council
| Decision Date | 02 August 1995 |
| Docket Number | B-ABELL,No. 93-2415,93-2415 |
| Citation | 73 Ohio St.3d 1,651 N.E.2d 1283 |
| Court | Ohio Supreme Court |
| Parties | A &ELEVATOR COMPANY, INC., Appellee and Cross-Appellant, v. COLUMBUS/CENTRAL OHIO BUILDING & CONSTRUCTION TRADES COUNCIL et al., Appellants and Cross-Appellees. |
SYLLABUS BY THE COURT
Public policy dictates that those who provide information to government officials who may be expected to take action with regard to the qualifications of bidders for public-work contracts be given a qualified privilege, thereby improving the quality and safety of public work.
In October 1989, the state of Ohio, Department of Administrative Services, Office of State Purchasing ("DAS"), issued an invitation to bid on a preventive elevator maintenance contract covering several state buildings. Among other things, the instructions and conditions for submitting the bids provided that "[c]ontracts shall be awarded to the lowest responsive and responsible bidder in accordance with the Ohio Revised Code, Section 125.11."
In December 1989, the city of Columbus, Department of Public Utilities and Aviation, Division of Airports ("the city"), issued invitations to bid on two maintenance and repair contracts for the main terminal building elevators at Port Columbus International Airport. Among other things, the information to prospective bidders provided that "[t]he Contract will, if let, be awarded to the lowest and best bidder."
Appellee and cross-appellant, A & B-Abell Elevator Company, Inc. ("Abell"), a nonunion contractor, submitted the lowest bid for the state and city contracts. The next lowest bid, in each case, was submitted by a contractor that employed union labor. The initial investigations made by DAS and the city resulted in a determination that Abell was not only the lowest bidder, but was also, respectively, the lowest responsible and best bidder.
In the early part of January 1990, however, both DAS and the city decided not to award the respective contracts to Abell. This decision was made, in large part In the latter part of January 1990, both DAS and the city reconsidered their decisions and determined to award the contracts to Abell. The reconsideration followed further investigations concerning the information furnished by Rarey, the institution of legal proceedings by Abell against the state, and written guarantee by Sterrett Lloyd, then branch manager of Abell, to the city that Abell would meet all contract specifications notwithstanding its low bid.
on the basis of certain information concerning Abell's past practices on other jobs, submitted by appellant and cross-appellee James R. Rarey, secretary-treasurer of appellant and cross-appellee Columbus/Central Ohio Building and Construction Trades Council ("Building Trades").
Abell filed two complaints in the Franklin County Court of Common Pleas, later consolidated, against Rarey, the Building Trades and appellant and cross-appellee International Brotherhood of Elevator Contractors, Local 37 ("Local 37"). Abell alleged that during December 1989 and January 1990, appellants and cross-appellees contacted DAS and the city in an effort to prevent Abell from being awarded the contracts and, in the process, made various false and defamatory communications concerning Abell's business reputation. The complaints set forth four causes of action: (1) tortious interference with a prospective business relationship, (2) tortious interference with contract, (3) defamation, and (4) unlawful disparagement.
The case proceeded to trial, and the trial court, following Abell's case-in-chief, directed a verdict in favor of appellants and cross-appellees on all of Abell's claims. The following facts, taken from the evidence contained in the record and construed in Abell's favor, are arranged logistically according to the relevant government contract and the alleged defamatory publication.
I
THE CITY CONTRACTS
A
Background
On December 13, 1989, the bids for the city contracts were opened and read. James F. Fielding, a business agent for Local 37, and Sterrett Lloyd were both present at the bid opening. After the bids were opened, Fielding stated to Lloyd that "you will pay prevailing wage on this job or I will bury you in this town." Thereafter, Fielding began to collect negative information about Abell, which he considered to be "gunpowder" to use against Abell.
As relevant here, Fielding came into possession of two sources of information. The first was a videotape of a June 1988 news broadcast by WISH Channel 8 Also interviewed during the broadcast was James I. Clark, who, at the time, was the Director of the Division of Elevator Safety for the state of Indiana. Clark stated that he felt 1
News out of Indianapolis, Indiana (the "WISH tape"). The broadcast began: "Good evening, Indiana taxpayers are being ripped off. Their safety possibly threatened by some elevator workers who are not conducting state mandated safety tests." The broadcast continued, reporting that "State officials paid the Abell Elevator Company more than $40,000 to maintain, inspect and test six elevators at the Logansport State Mental Hospital." This was followed by an interview with Chuck Foster, a former employee of Abell, who claimed that the elevators at Logansport, as well as at Muscatatuck State Hospital, were not tested, that documents were falsified to indicate that the tests had been performed, and that he was never trained to perform the tests
The second source of information collected by Fielding was a letter dated December 20, 1989 from Steve Scott, branch manager of Montgomery Elevator Company ("Montgomery"), to Bill Rice, an assistant to Philip Delbert, administrative officer for the city in charge of engineering and construction ("the Scott letter"). Montgomery was the lowest bidder after Abell for the city contracts. The letter was an attempt to establish that Montgomery was a better qualified bidder than Abell. Attached to the letter was a page which, among other things, listed three "references" where Abell had previously performed work: the Indianapolis Federal Building, the Fort Wayne Housing Authority, and the Colerain Veterinary Clinic in Cincinnati. Each of these "references" was followed by the notation: "CONTRACT CANCELLED FOR NON-PERFORMANCE."
B
Rarey's Letter
After Fielding collected the information concerning Abell, he contacted Rarey and gave Rarey a copy of the WISH tape. After viewing the tape, Rarey contacted Charles Mentel, legislative research office manager for the city. Rarey asked Mentel to look into the bids for the airport and to arrange for him (Rarey) to meet with Delbert. Subsequently, Rarey and Delbert spoke on the telephone Accordingly, on December 22, 1989, Rarey wrote to Delbert as follows:
at which time Rarey told Delbert about the WISH tape. Delbert told Rarey "to put all of that in writing for [him] first before [he] would act on it."
On January 4, 1990, Rarey met with Delbert and Delbert's counsel, Assistant City Attorney Daniel Drake, and played the tape for them.
C
The Scott Letter
After receiving the December 20, 1989 letter from Scott, the city, on December 28, 1989, interviewed the three "references" that were listed in the attachment to the letter. Although the "references" were quite unfavorable to Abell, it was not necessarily true, as noted in the attachment to the Scott letter, that the contracts referred to therein were "cancelled for nonperformance." Additionally, the city The city did, however, prepare three typewritten documents summarizing the complaints made by the interviewees, a copy of which Delbert gave to Rarey during their meeting on January 4, 1990. Those documents read as follows:
did not consider the information given to it during these interviews, by itself, to be sufficient reason not to award the city contracts to Abell.
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