Dimarco v. Presbyterian Healthcare Services

• Citation: 2007 NMCA 053,160 P.3d 916
• Decision Date: 15 March 2007
• Docket Number: No. 26,528.,26,528.
• Parties: Vincent P. DiMARCO, Plaintiff-Appellant, v. PRESBYTERIAN HEALTHCARE SERVICES, INC., d.b.a. Lincoln County Medical Center, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

160 P.3d 916

2007 NMCA 053

Vincent P. DiMARCO, Plaintiff-Appellant, v. PRESBYTERIAN HEALTHCARE SERVICES, INC., d.b.a. Lincoln County Medical Center, Defendant-Appellee.

No. 26,528.

Court of Appeals of New Mexico.

March 15, 2007.

Certiorari Denied, No. 30,326, May 2, 2007.

Law Offices of James P. Lyle, P.C., James P. Lyle, Albuquerque, for Appellant.

Rodey, Dickason, Sloan, Akin & Robb, P.A., Scott Gordon, Edward Ricco, Jocelyn Drennan, Albuquerque, for Appellee.

OPINION

CASTILLO, Judge.

{1} This case comes to us on an order granting summary judgment to Appellee, Presbyterian Healthcare Services, Inc., (Presbyterian), d.b.a. Lincoln County Medical Center, regarding job-related disclosures it made to Gerald Champion Regional Medical Center (GCRMC) about Presbyterian's former employee Vincent P. DiMarco (DiMarco) Appellant. DiMarco asserts that Presbyterian's disclosures caused him to suffer emotional distress and to lose the employment he had secured with GCRMC. Although Presbyterian argues that language in the releases signed by DiMarco before the disclosures were made act as a complete bar from liability, we need not reach this issue. For purposes of this appeal, we assume, without deciding, that the release was conditional and only waived liability regarding statements made in good faith. With this as our basis, we review the pleadings related to the summary judgment motion and conclude that DiMarco failed to rebut the prima facie case of privilege established by Presbyterian. Accordingly, we affirm.

I. BACKGROUND

{2} DiMarco worked for Presbyterian as a physician's assistant from 1988 to 2000. He resigned his position in September 2000. About a year later, DiMarco filed a lawsuit against Presbyterian for constructive discharge, separate and apart from this case, and alleged that mismanagement in the emergency room compromised patient care and that as a result, he was forced to resign. Subsequently, DiMarco applied for a position at GCRMC. He was provisionally hired, pending GCRMC's receipt of information from DiMarco's former employers, which included Presbyterian.

{3} Plaintiff signed four releases of liability during the application process. In three releases, DiMarco discharged, without limitation, the third parties from any and all liability arising from their responses to GCRMC's requests for various types of information regarding DiMarco's work history: the Release, the Authorization and Release, and the Release and Immunity. At the same time, DiMarco also signed the Authorization of Release of Information (good faith release).

{4} GCRMC's medical staff coordinator, Diane Melendrez, faxed to Presbyterian the good faith release with a Hospital Affiliation Evaluation, seeking information about DiMarco's previous employment. Presbyterian failed to respond in full to this initial request. Presbyterian's medical staff coordinator, Debbie Perkins, confirmed DiMarco's time of employment but declined to answer specific questions about his job performance for Presbyterian. After DiMarco, his wife, and GCRMC asked Presbyterian to provide more information, Presbyterian's regional medical director, Dr. Bill Daugherty, completed the evaluation form by answering the specific questions. Some of the responses reflected negatively on DiMarco's work history; therefore, GCRMC did not hire DiMarco. As a result, DiMarco voluntarily dismissed the first lawsuit and filed a new complaint, alleging intentional interference with contractual relations, prima facie tort, and intentional infliction of emotional distress.

{5} After DiMarco filed an amended complaint, Presbyterian responded by filing a motion requesting the trial court to dismiss the complaint or, in the alternative, to grant summary judgment in Presbyterian's favor. Relying on two releases, the good faith release and the Release, Presbyterian argued inter alia that DiMarco explicitly agreed to immunize Presbyterian from liability. In opposing this motion, DiMarco argued that the good faith release limited Presbyterian's release of liability for information provided in good faith and that the Release was specific to DiMarco's insurance carrier and information concerning DiMarco's coverage. The trial court denied Presbyterian's motion. During the subsequent two-year period of discovery, more releases were produced. Presbyterian filed a second motion for summary judgment, arguing inter alia that Presbyterian had absolute immunity because DiMarco had consented to the release of his employment information and had expressly agreed not to sue Presbyterian for providing that information to GCRMC. Relying on the language of the Release and Immunity, the trial court granted summary judgment to Presbyterian. DiMarco filed a timely notice of appeal.

II. STANDARD OF REVIEW

{6} We review de novo the trial court's grant of summary judgment. Fikes v. Furst, 2003-NMSC-033, ¶ 11, 134 N.M. 602, 81 P.3d 545. "Summary judgment is a drastic remedy to be used with great caution" and is appropriate only when there is no genuine issue of material fact and when the moving party is entitled to judgment as a matter of law. Garcia-Montoya v. State Treasurer's Office, 2001-NMSC-003, ¶ 7, 130 N.M. 25, 16 P.3d 1084 (internal quotation marks and citation omitted); see also Fikes, 2003-NMSC-033, ¶ 11, 134 N.M. 602, 81 P.3d 545. In determining whether the nonmoving party has raised a genuine issue of material fact, we view the facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Garcia-Montoya, 2001-NMSC-003, ¶ 23, 130 N.M. 25, 16 P.3d 1084; Nashan v. Nashan, 119 N.M. 625, 627, 894 P.2d 402, 404 (Ct.App.1995).

III. DISCUSSION

{7} At trial and now on appeal, DiMarco argues the following: that any release of liability for the benefit of Presbyterian was limited to disclosures made in good faith, as intended by the parties; that NMSA 1978, § 50-12-1 (1995), and public policy limit Presbyterian's liability to information provided in good faith; that Presbyterian's disclosures violated the implied covenant of good faith and fair dealing; that any privilege held by Presbyterian was conditional and thereafter was forfeited through abuse; and that Presbyterian's disclosures constitute a prima facie tort because they were committed for the sole purpose of harming DiMarco. In turn, Presbyterian argues that the language of the Release and Immunity unambiguously released Presbyterian from liability and that neither public policy nor the implied covenant of good faith and fair dealing limited the release. Presbyterian also argues that DiMarco's consent to the disclosure conferred an absolute privilege and that Presbyterian provided only truthful information and thus cannot be held liable, regardless of whether providing this information caused actual damage to DiMarco. Presbyterian observes that it is required to respond truthfully to the inquiry from GCRMC because Presbyterian could have been subject to liability to any third person for any injury caused by DiMarco at GCRMC. See Davis v. Bd. of County Comm'rs, 1999-NMCA-110, ¶¶ 21-22, 127 N.M. 785, 987 P.2d 1172 (concluding that in cases of foreseeable physical harm, the defendants owed "a duty of care, once they elected to make employment recommendations . . ., in regard to what they said and what they omitted from their references").

{8} Our decision today rests on resolution of DiMarco's third argument — abuse of conditional privilege. We interpret Presbyterian's argument regarding truthfulness as an assertion that it acted in good faith because it had a duty to provide accurate, or truthful, information and because its disclosures were, accordingly, truthful. See id. ¶¶ 15, 18-20 (accepting the principles of negligent misrepresentation set forth in the Restatement (Second) of Torts § 311 (1965), in cases of employer references for positions posing risk of physical harm to third parties). After review of the pleadings and record, we conclude that DiMarco failed to rebut Presbyterian's prima facie case of conditional privilege because he failed to carry his burden to prove that Presbyterian did not act in good faith. See Gengler v. Phelps, 92 N.M. 465, 468, 589 P.2d 1056, 1059 (Ct.App.1978) (stating that the plaintiff has the burden to prove actual malice in a defamation cause of action and thereby show that the defendant abused its conditional privilege); see also Restatement (Second) of Torts § 890 & cmts., at 355-59 (1979) (discussing privilege as it applies generally in tort actions).

{9} "[A]n appellate court will affirm the district court if it is right for any reason and if affirmance is not unfair to the appellant." Maralex Res., Inc. v. Gilbreath, 2003-NMSC-023, ¶ 13, 134 N.M. 308, 76 P.3d 626 (internal quotation marks and citation omitted); see also State v. Muniz, 2003-NMSC-021, ¶ 5, 134 N.M. 152, 74 P.3d 86 ("[W]e must affirm the district court if its decision was correct."). DiMarco had a substantial period of discovery to obtain evidence supporting his theory of the case. Moreover, he presented evidence to the trial court in support of his arguments regarding abuse of privilege, which were made both below and in his appellate briefs. Thus, we conclude that DiMarco is not prejudiced by our resolution of the issue on grounds different from those of the trial court. Our determination that DiMarco failed to rebut Presbyterian's prima facie case of privilege makes it unnecessary to address DiMarco's remaining arguments.

{10} We begin by assuming, but not deciding, that Presbyterian's disclosures are protected only if made in good faith and that, accordingly, Presbyterian's privilege is conditional, subject to forfeiture if the privilege is abused. Baker v. Bhajan, 117 N.M. 278, 283, 871 P.2d 374, 379 (1994) ("A conditional or qualified privilege will be lost if it is abused."); Bookout v. Griffin, 97 N.M. 336, 339, 639 P.2d 1190, 1193 (1982) ("[Q]ualified privilege exists where there...