Buckhannon v. US West Communications, Inc.

• Decision Date: 21 March 1996
• Docket Number: No. 94CA1287,94CA1287
• Citation: 928 P.2d 1331
• Parties: Robert L. BUCKHANNON, Plaintiff-Appellant, v. U.S. WEST COMMUNICATIONS, INC., a Colorado corporation, Defendant-Appellee. . A
• Court: Colorado Court of Appeals

Page 1331

928 P.2d 1331

Robert L. BUCKHANNON, Plaintiff-Appellant, v. U.S. WEST COMMUNICATIONS, INC., a Colorado corporation Defendant-Appellee.

No. 94CA1287.

Colorado Court of Appeals Div. A.

March 21, 1996.

As Modified on Denial of Rehearing

May 30, 1996.

Certiorari Denied Nov. 18, 1996.

Randal R. Kelly, Denver, for Plaintiff-Appellant.

Faegre & Benson, Michael S. McCarthy, Charlotte Wiessner, Natalie Hanlon-Leh, Denver, U.S. West Communications, Inc., H. Perry Ryon, Denver, for Defendant-Appellee.

Opinion by Chief Judge STERNBERG.

Plaintiff, Robert L. Buckhannon, appeals a summary judgment entered in favor of defendant, U.S. West Communications, Inc., dismissing his claims for intentional interference with contract, malicious prosecution, and abuse of process. We affirm the trial court's dismissal of the intentional interference with contract claim, but reverse its dismissal of plaintiff's claims for malicious prosecution and abuse of process, and remand those claims for further proceedings.

I.

While Buckhannon was riding a bicycle in March of 1990, a U.S. West truck swerved into his path. Although he was not struck by the vehicle, Buckhannon claims to have injured his shoulder and knee in avoiding a collision. Buckhannon then filed a claim with U.S. West, who was self-insured, for no-fault (PIP) benefits and also filed a claim for benefits with his disability insurance carrier, Monarch Life Insurance Company.

When U.S. West refused to pay the PIP benefits, the matter went before an arbitration panel in March of 1991. Buckhannon testified at the hearing as to the circumstances of the incident and his alleged injuries. His then girlfriend who had witnessed the incident corroborated his testimony. The panel found in favor of Buckhannon, awarding unpaid treatment expenses, treble damages, interest, and attorney fees.

In January of 1991, prior to the PIP arbitration, Buckhannon, a chiropractor, filed a personal injury suit against U.S. West and the truck driver, claiming that his injuries had caused his total and permanent disability in his profession, in that he was no longer able to perform manipulation treatments to the extent that he had prior to his injuries.

As part of its trial preparation, U.S. West took the deposition of Buckhannon's former girlfriend. She recanted the majority of the testimony she had given at the PIP arbitration and stated that Buckhannon's injuries were preexisting. Shortly thereafter, Buckhannon's personal injury suit was voluntarily dismissed with prejudice.

Prior to the dismissal, an investigator employed by U.S. West's in-house counsel contacted Monarch to inquire into the disability payments being made to Buckhannon. The investigator allegedly informed Monarch that Buckhannon was not disabled, had filed fraudulent tax returns, had accepted kickbacks, had committed billing fraud in his practice, and questioned why Monarch was still paying benefits to Buckhannon. Monarch thereafter ceased the disability payments pending investigation of these issues.

Monarch sued Buckhannon in September 1992, seeking a declaratory judgment and rescission of the insurance policy; Buckhannon filed his own suit against Monarch for breach of duty of good faith, breach of contract, and other claims. The cases were consolidated, and Monarch and Buckhannon subsequently entered into a confidential settlement.

Based on the recanted testimony of Buckhannon's former girlfriend and the voluntary dismissal of his personal injury claims, U.S. West sought sanctions against Buckhannon in June of 1992, claiming that his lawsuit against the company was substantially frivolous, groundless, and vexatious. This claim proceeded to arbitration, Buckhannon prevailed, and no sanctions were awarded.

Shortly before commencement of the sanctions arbitration, Buckhannon filed this suit based upon U.S. West's remarks and allegations about him in its contacts with Monarch. Buckhannon asserted claims for tortious interference with contractual relations, libel and slander per se, libel and slander per quod, and intentional infliction of emotional distress. After the arbitrator denied U.S. West's claim for sanctions, Buckhannon added claims for relief for extreme and outrageous conduct, abuse of process, malicious prosecution, and civil conspiracy. U.S. West moved for summary judgment.

The trial court granted summary judgment for U.S. West on Buckhannon's libel and slander claims and his claims for extreme and outrageous conduct and tortious interference with contractual relations. Additionally, the court found that Buckhannon was collaterally estopped from asserting his claims for malicious prosecution and abuse of process, based on one of the factual determinations made by the arbitrator in the sanctions arbitration. Finally, the trial court dismissed the civil conspiracy claim because of its dependency on the survival of the underlying claims.

Buckhannon does not appeal any issues relating to the dismissal of his claims for libel and slander, intentional infliction of emotional distress, extreme and outrageous conduct, and civil conspiracy. Thus, the remaining issues to be determined in this appeal are those which relate to his claims for intentional interference with contractual relations, malicious prosecution, and abuse of process. See Worley v. Sancetta, 540 P.2d 355 (Colo.App.1975) (not selected for official publication) (issues not presented or argued on appeal are abandoned).

II.

Summary judgment is proper only if the record establishes that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Persichini v. Brad Ragan, Inc., 735 P.2d 168 (Colo.1987). Applying that standard here, we agree with the trial court that Buckhannon's claim of intentional interference with contractual relations was insufficient to survive U.S. West's motion for summary judgment.

Buckhannon asserts that U.S. West intentionally interfered with his contractual relations with Monarch when employees in U.S. West's legal department made defamatory statements to Monarch's claims personnel during U.S. West's preparation for the personal injury suit. He argues that U.S. West deliberately tried to undermine his receipt of disability benefits by telling Monarch he was guilty of fraud and that U.S. West's comments were designed to instigate legal action between Buckhannon and Monarch. Except for his allegations of malicious prosecution and abuse of process, all of Buckhannon's claims in this case stemmed from the same conduct on the part of U.S. West: telling Monarch that his claim was fraudulent.

However, as noted by the trial court, the statements to Monarch concerning Buckhannon were communications preliminary to a proposed judicial proceeding, were related to the proceeding, and were thus absolutely privileged. We agree with this conclusion, and agree with the trial court that application of this privilege entitled U.S. West to dismissal of the intentional interference claim.

In Club Valencia Homeowners Ass'n v. Valencia Associates, 712 P.2d 1024 (Colo.App.1985) , a division of this court addressed this issue and concluded that attorneys are absolutely privileged to make defamatory remarks during preparation for a judicial proceeding so long as the remarks have some relation to the proceeding.

Although Buckhannon does not dispute application of the defense of absolute privilege to his prior defamation claims, he does argue that the absolute privilege does not apply to his intentional interference with contractual relations claim. In his view, U.S. West's allegations of "fraud, immorality and criminal conduct" do not fall under the umbrella of permissible communications. He argues that the statements were unsolicited and constituted a literal invitation for Monarch to commence an investigation of Buckhannon, and were not made for the purpose of investigating its own case with Buckhannon. We disagree.

Because his personal injury suit against U.S. West was based on allegations of occupational disability resulting from the bicycle incident, issues concerning Buckhannon's truthfulness and character did have "some relation" to the proceeding, and were made in the course of U.S. West's preparation for trial. Club Valencia Homeowners Ass'n, supra. Thus, we agree that the attorney absolute privilege applies to U.S. West's statements that might otherwise be considered defamatory.

The privilege not only shields attorneys from defamation claims arising from statements made during the course of litigation, but it also bars other non-defamation claims that stem from the same conduct. Barker v. Huang, 610 A.2d 1341 (Del.1992) (absolute privilege extended to plaintiff's claims of invasion of privacy and intentional infliction of emotional distress); Western Technologies, Inc. v. Sverdrup & Parcel, Inc., 154 Ariz. 1, 739 P.2d 1318 (App.1986) (absolute privilege extended to plaintiff's claim for intentional interference with a contractual relationship).

However labeled, Buckhannon's claim is that U.S. West intentionally made derogatorily false statements about him, and that he was harmed by them. To the extent that such statements were...