Coachmen Industries, Inc. v. Dunn, 64A05-9901-CV-47.

• Decision Date: 29 November 1999
• Docket Number: No. 64A05-9901-CV-47.,64A05-9901-CV-47.
• Citation: 719 N.E.2d 1271
• Parties: COACHMEN INDUSTRIES, INC., and Sportscoach Corporation of America, Appellants-Defendants, v. James H. DUNN and Barbara H. Dunn, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

719 N.E.2d 1271

COACHMEN INDUSTRIES, INC., and Sportscoach Corporation of America, Appellants-Defendants, v. James H. DUNN and Barbara H. Dunn, Appellees-Plaintiffs.

No. 64A05-9901-CV-47.

Court of Appeals of Indiana.

November 29, 1999.

Robert J. Palmer, South Bend, Indiana, Attorney for Appellants.

Teresa A. Massa, George W. Terrell, Jr., Charles F.G. Parkinson, Valparaiso, Indiana, Attorneys for Appellees.

OPINION

ROBERTSON, Senior Judge.

STATEMENT OF THE CASE

Defendants-Appellants Coachmen Industries, Inc. (Coachmen) and Sportscoach Corporation of America (Sportscoach)¹ appeal the judgment of the trial court in favor of Plaintiffs-Appellees James H. Dunn and Barbara H. Dunn (Dunns).

We affirm.

ISSUES

Appellants present six issues which we consolidate and restate as:

1. Whether the jury's verdict is contrary to law.

2. Whether there is sufficient evidence to prove special damages flowing from the Dunns' defamation claim.

3. Whether the Dunns failed to overcome the Appellants' qualified privilege by a sufficient showing that the Appellants had abused the privilege.

4. Whether the trial court erred in submitting the issue of defamation to the jury.

5. Whether the award of punitive damages is contrary to law.

FACTS AND PROCEDURAL HISTORY

Sportscoach was a subsidiary of Coachmen, and both companies were involved in the manufacture of motor homes. The Dunns were employed by Sportscoach in the capacities of drivers and show coordinators. In driving and delivering vehicles manufactured by Sportscoach, the Dunns were asked by the transportation manager of Sportscoach to disconnect the odometers of a number of the vehicles. In 1991, Sportscoach closed and the Dunns interviewed at Coachmen. During the interview, Barbara Dunn mentioned that the Dunns had previously been ordered to disconnect odometers and that they would refuse to do so at Coachmen. The Dunns were not hired by Coachmen. Following an investigation by Richard Bowers, Coachmen's corporate legal counsel, letters were sent to four Sportscoach customers discussing the odometer tampering and naming the Dunns as the responsible parties. Bowers included checks with these letters as reimbursement to the customers for the unrecorded mileage on their vehicles. The Dunns were also named on the check stubs of these reimbursement checks. The Dunns filed a complaint for wrongful termination alleging that they had been terminated based upon their refusal to disconnect odometers. The complaint was later amended to include allegations of defamation based upon the letters sent by Coachmen's corporate counsel.

Following a trial, the jury returned a verdict in favor of the Appellants on the Dunns' claim for wrongful termination but returned verdicts against the Appellants with regard to the Dunns' claim of defamation and on Coachmen's counterclaim. Coachmen then filed a motion to correct error which was denied by the trial court. This appeal ensued.

DISCUSSION AND DECISION

STANDARD OF REVIEW

On appeal, a general verdict will be sustained upon any theory consistent with the evidence. Tipmont Rural Elec. Membership Corp. v. Fischer, 697 N.E.2d 83, 86-87 (Ind.Ct.App.1998), aff'd, 716 N.E.2d 357 (Ind.1999). We will neither reweigh the evidence nor judge the credibility of the witnesses, but will consider only the evidence most favorable to the judgment along with all reasonable inferences to be drawn therefrom. Id. Only where there is a total failure of evidence or where the jury's verdict is contrary to the uncontradicted evidence will the verdict be reversed. Id. Thus, Appellants labor under a heavy burden in asserting error.

I. JURY VERDICT

A. Truth of Statements

For their first claim of error, Appellants contend that the jury's verdict regarding the Dunns' defamation claim is contrary to law because the statements contained in the letters sent by Coachmen's corporate counsel are true.

Appellants invite us to reweigh the evidence by pointing to evidence they presented at trial to show that the information in the letters was true. However, the Dunns presented evidence and argued just as vigorously that the information in the letters was false. Viewing the record in the light most favorable to the Dunns, we conclude the verdict is not contrary to law. The record reveals that the Dunns were ordered to disconnect the odometers rather than requesting and being "authorized" to make the disconnection as the letters state. The Dunns also presented evidence that "full responsibility" for the unrecorded mileage on the vehicles did not rest with them, as the letters indicate, because they were ordered to take this action by their superiors. Thus, this is not a situation of a total failure of evidence or a verdict contrary to the uncontradicted evidence. Rather, there is conflicting evidence as to the truth of the statements, and the jury found for the Dunns.

Additionally, the jury was instructed that truth is a complete defense to an action for defamation and that if the jury found the statements to be true, they must find for the Appellants. (Supp. R. 28). Because the jury did not find in favor of the Appellants, we can infer that the jury found the Appellants' statements to be false. We need not invade the province of the jury and reverse the verdict.

B. Jury Instruction

Appellants allege that the jury's verdict is contrary to law because the trial court submitted an instruction to the jury which contradicts the evidence. The trial court instructed the jury as follows:

In order to recover in an action for defamation, the plaintiff has the burden of proving the following propositions by a preponderance of the evidence:

(1) That the defendant made the following statement: that the Dunn's [sic] were fully responsible for odometer disconnects;

(2) That the statement was defamatory as that term is defined in these instructions;

(3) That the statement was made about the plaintiff;

(4) That the statement was seen by someone other than the plaintiff; and

(5) That the defendant knew the statement to be false or, believing it to be true, acted negligently in failing to determine the truth of the statement.

If you find from a consideration of all the evidence that the foregoing elements have been proved, your verdict should be for the plaintiff. However, if you find from a consideration of all the evidence that any one of these elements has not been proved, your verdict should be for the defendant.

(Supp. R. 27).

In their Reply brief, Appellants state that they are not arguing that the instruction was erroneous. Instead, they contend that although the instruction correctly sets forth the elements of a claim of defamation, it contradicts the evidence by asserting that the Appellants stated the Dunns were fully responsible for odometer disconnects. Appellants allege that their statement was not that the Dunns were fully responsible for the disconnection of odometers but that the Appellants believed that the Dunns were fully responsible.

Although Appellants attempt to avoid it, the real issue here is an allegedly erroneous jury instruction. However, Appellants do not claim to have objected to this instruction. Because Appellants have failed to lodge an objection to the giving of this instruction, the instruction has become the law of the case. Salcedo v. Toepp, 696 N.E.2d 426, 434 (Ind.Ct.App.1998). As such, the instruction has become the standard under which we review the case, and a jury verdict within the contemplation of the instructions given is insulated from attack on appeal. Id. The jury verdict in favor of the Dunns is supported by substantial evidence or reasonable inferences to be drawn therefrom; therefore, we conclude that the verdict is not contrary to law.

II. SUFFICIENCY OF THE EVIDENCE

Appellants claim that the Dunns have failed to prove specific damages, an allegedly essential element of their claim of defamation. Appellants present this argument in two parts: (1) if the Dunns were defamed at all, it was a case of defamation per quod; and (2) a cause of action involving defamation per quod requires proof of special damages, which the Appellants allege the Dunns failed to prove.

Again, we employ the standard for review of a general verdict as set out above. In the present case, the record discloses the jury was instructed that "[w]here the defamatory words are in the form of libel or slander, whether defamatory per se or per quod, there is no need to plead or prove special damages if the words: (a) impute a criminal act, (b) impute a loathsome disease, (c) impute sexual misconduct, or (d) injure another in his trade, business, profession or office." (Supp. R. 20). The jury was further instructed that "words in the form of libel per se that tend to degrade another person, impeach the person's honesty, integrity, or reputation, or bring the person into contempt, hatred, or ridicule, or cause the person to be shunned are also actionable without the necessity of pleading and proving special damages. Special damages must be proved in the case of slander or libel per quod that does not involve" one of the four categories listed above. (Supp. R. 21).

Therefore, in returning a verdict in favor of the Dunns on their defamation claim, the jury could have determined that: (1) the Dunns' claim, whether defamatory per se or per quod, fit within one of the four categories listed above (presumably category (d) injury in trade, business, profession, or office) and thus required no showing of special damages; (2) the Dunns' claim was a claim of defamation per se, thereby requiring no showing of special damages; or (3) the Dunns' claim was one of defamation per quod and that they made a sufficient showing of special damages at trial. Moreover, our review of the record reveals that the Dunns provided sufficient evidence from which the jury could find that special damages were proved. "A jury verdict within the contemplation of the instructions given is...