Briggs v. Boat/u.S., Inc.

• Court: U.S. District Court — District of Massachusetts
• Writing for the Court: CASPER, J.
• Decision Date: 16 September 2014
• Docket Number: Civil Action No. 12-11795-DJC
• Citation: Briggs v. Boat/u.S., Inc., Civil Action No. 12-11795-DJC (D. Mass. Sep 16, 2014)
• Parties: DANIEL C. BRIGGS, Plaintiff, v. BOAT/U.S., INC. and SOCIETY OF ACCREDITED MARINE SURVEYORS, INC., Defendants.

DANIEL C. BRIGGS, Plaintiff, v. BOAT/U.S., INC. and SOCIETYOF ACCREDITED MARINE SURVEYORS, INC., Defendants.

Civil Action No. 12-11795-DJC

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

September 16, 2014

MEMORANDUM AND ORDER

CASPER, J.

I. Introduction

Plaintiff Daniel C. Briggs ("Briggs") has brought this lawsuit against Defendants Boat/U.S., Inc. ("BoatUS") and the Society of Accredited Marine Surveyors, Inc. ("SAMS") (collectively, "Defendants") arising from Briggs's membership suspension and termination from SAMS. D. 54. Briggs has alleged violation of due process against SAMS (Count 1); defamation against BoatUS (Count 2); tortious interference with prospective business relationships against both Defendants (Count 3); violation of Mass. Gen. L. c. 93A, § 11 against both Defendants (Count 4); and civil conspiracy (Count 5). Second Amended Complaint ("SAC"), D. 54. Defendants have now moved for summary judgment on all claims. D. 71, 72. For the reasons discussed below, the Court ALLOWS IN PART and DENIES IN PART BoatUS's motion forsummary judgment, D. 71, and ALLOWS IN PART and DENIES IN PART SAMS's motion for summary judgment, D. 72.

II. Factual Background

The facts recited are as presented in Defendants' statements of facts, D. 73, 80, and, except as otherwise noted, are undisputed by Briggs. D. 88, 90.

BoatUS is a for-profit national boating club that sells marine insurance. D. 73 ¶ 14; D. 88 ¶ 14. Before issuing an insurance policy, BoatUS required boat owners seeking insurance to provide a marine survey describing the boat's specifications, measurements, condition and an estimate of the boat's value. Id. ¶¶ 15-17.

In 2005, boat owner Ronald Hirschberg ("Hirschberg") hired Briggs, a marine surveyor, to perform an insurance survey of his boat. Id. ¶¶ 2, 18. In April 2012, Hirschberg hired Briggs again to perform an additional survey because he was switching to BoatUS as his insurer. Id. ¶ 19.

According to Briggs, when he went to survey Hirschberg's boat, he was unable to access it and inspected only the underside and rig. Id. ¶ 21. On April 13, 2012, Briggs sent, via e-mail, a fifteen-page survey report to Hirschberg, entitled "Marine Survey Report." D. 80 ¶ 12. Briggs did not write the words "draft," "not completed," "to be completed," or "partial" anywhere on the survey. D. 73 ¶ 24. Hirschberg forwarded the survey to BoatUS on April 19, 2012. Id. ¶ 27. Hirschberg did not indicate in the email to BoatUS that the survey was a draft or incomplete. Id. ¶ 28.

After receiving the survey, Cheryl Trosky ("Trosky") of BoatUS, noticed that the date of the first page of the survey indicated the year 2012, while the date on the last page indicated the year 2005. Id. ¶ 33-34. Trosky brought the survey to the attention of Bruce Spahr ("Spahr"),head of underwriting at BoatUS, who instructed Trosky to call Briggs to clarify the inconsistency. Id. ¶ 35. In an April 27, 2012 voice message to Trosky, Briggs admitted that he had not been onboard the boat in 2012 to survey it. Id. ¶ 37. Hirschberg later told Spahr that Briggs had informed Hirschberg that he could not get on the boat, but would complete the inspection at a later date. Id. ¶ 40.

SAMS is a professional society that offers accreditation to member surveyors. Id. ¶¶ 7, 10. Prior to June 27, 2012, Briggs was a SAMS member. Id. ¶ 3. On April 27, 2012, Spahr called Joseph Lobley ("Lobley"), SAMS president, to inform Lobley of Brigg's conduct. Id. ¶ 57. BoatUS later filed a written complaint regarding Briggs, attaching copies of two voicemails from Briggs. Id. ¶ 60.

On April 30, 2012, pursuant to SAMS policy, Lobley sent a Polled Vote Request to the SAMS board of directors ("the Board") regarding Briggs's immediate temporary suspension from the organization. Id. ¶ 63. The Board voted unanimously for Briggs's immediate temporary suspension beginning May 4, 2012, citing the SAMS policy. Id. ¶ 65.

Briggs requested an appeal hearing. Id. ¶ 68. SAMS appointed two members to conduct an ethics investigation. Id. ¶ 69.

The SAMS Ethics Committee found Briggs in violation of the Code of Ethics and Practice provisions requiring members to "[b]e competent, prompt, diligent and demonstrate respect for the survey profession. (Competence requires knowledge, skill, thoughtfulness, and preparation reasonably necessary for the assignment) . . . [a]ccept only assignments that can be completed with professional competence . . . [and] [r]efrain from suppressing, over-emphasizing or manipulating facts." Id. ¶ 76. The Committee's findings were presented to the Board during aclosed ethics session the day before the Board meeting when Briggs's hearing was scheduled. Id. ¶ 77.

At the Board meeting the following day, June 13, 2012, Briggs was permitted to present his position, id. ¶ 86, but he contends that the hearing was unfair for a number of reasons including his inability to question witnesses. D. 88 ¶ 86. The Board ratified Briggs's suspension. D. 73 ¶ 78. In a letter dated June 27, 2012, SAMS notified Briggs that his membership would be terminated. Id. ¶ 96.

III. Procedural History

Briggs initiated this lawsuit in Plymouth Superior Court on September 17, 2012. D. 1 ¶ 2. The case was removed to this Court on September 27, 2012. Id. Briggs filed his second amended complaint on February 19, 2013. D. 54. Defendants subsequently moved for summary judgment. D. 71, 72. After a hearing, the Court took this motion under advisement. D. 99.

IV. Standard of Review

The Court may grant summary judgment when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law based on the undisputed facts. Fed. R. Civ. P. 56(a). "An issue is genuine if the evidence of record permits a rational factfinder to resolve it in favor of either party." Borges ex. rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4 (1st Cir. 2010) (citation and quotations omitted). "A fact is material if its existence or nonexistence has the potential to change the outcome of the suit." Id. at 5.

Once the moving party meets its burden of showing that there are no genuine issues of material fact, "the burden shifts to the nonmoving party, who must, with respect to each issue on which [he] would bear the burden of proof at trial, to demonstrate that a trier of fact could reasonably resolve that issue in [his] favor," id. (citation omitted), by presenting "specificadmissible facts." Id. "If the nonmovant fails to make this showing, then summary judgment is appropriate." Id.

"[A]t the summary judgment stage the judge's function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party "need only show that there is an absence of evidence in support of at least one element of [its] case in order to succeed on summary judgment." Cellco P'ship v. Town of Grafton, Mass., 336 F. Supp. 2d 71, 82 (D. Mass. 2004) (citation omitted). The Court "view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).

V. Discussion

A. The Court Allows in Part BoatUS's Motion for Summary Judgment, But Only as to the Civil Conspiracy Claim

1. Defamation

BoatUS argues that Briggs cannot prove his defamation claim because the record provides no evidence that BoatUS made a false statement or that Briggs incurred damages from any of BoatUS's statements. D. 81 at 11.

A defendant is liable for defamation if it publishes a "false statement regarding the plaintiff, capable of damaging the plaintiff's reputation in the community, which either causes economic loss or is actionable without proof of economic loss." White v. Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64, 66 (2004). "The test to be applied as to the defamatory character of published words is whether in the mind of any considerable and respectable class of the community they tend to injure the reputation of the person to whom they refer and expose him to hatred, ridicule and contempt." Rawson v. Arlington Advocate, Inc., 336 Mass. 31, 33-34(1957) (citations omitted). An opinion cannot constitute defamation unless it "implies the allegation of undisclosed defamatory facts as the basis for the opinion." Nat'l Ass'n of Gov't Emp., Inc. v. Cent. Broad. Corp., 379 Mass. 220, 227 (1979) (quotation omitted).

i. Falsity

Briggs relies upon statements that he contends were defamatory: (1) Spahr's statement to Lobley in his written complaint that Briggs submitted a final draft to Hirschberg with no indication that he never went aboard the vessel; and (2) Spahr's statement to Lobley in his written complaint that Briggs's submission of the survey was a "misrepresentation." D. 89 at 9.

The Court concludes that there is a genuine issue of material statement as to whether at least the first statement was defamatory. In the "formal complaint" dated April 31, 2012, Spahr wrote:

[Briggs's] reports routinely have shown to have errors and consistently lack details compared to other SAMS surveys we review. Last week we received a survey he performed for Mr. Ron Hirschberg on his 1988 Sabre 42'. Again this particular survey lacked detail and had errors. Upon review of this report I noted the survey was performed on April 11, 2012 on the first page and had a different date of April 12, 2005 on the last page. To get clarification on the dates I instructed one of my underwriters to call Mr. Briggs to see if this was simply an error or to confirm if the survey had been altered. At the time of the call Mr. Briggs was unavailable. He later returned the call leaving a voice mail. I cannot tell you how shocked I was to hear his response. I learned that the survey was not actually performed because the boat was not accessible. Yet he submitted a final draft to the owner with no indication that he never went aboard the vessel. We

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