Dugan v. Mittal Steel USA. Inc, 45S05-1002-CV-121.

• Docket Nº: No. 45S05-1002-CV-121.
• Citation: 929 N.E.2d 184
• Case Date: June 17, 2010
• Court: Supreme Court of Indiana

929 N.E.2d 184

Christine DUGAN, Appellant (Plaintiff below),
v.
MITTAL STEEL USA INC., and Jay Komorowski, in his individual and official capacities, Appellees (Defendants below).

No. 45S05-1002-CV-121.

Supreme Court of Indiana.

June 17, 2010.

929 N.E.2d 185

Richard P. Busse, Valparaiso, IN, Attorney for Appellant.

Michael D. Sears, Jacquelyn S. Pillar King, Singleton, Crist, Austgen & Sears, LLP, Munster, IN, Attorneys for Appellees.On Transfer from the Indiana Court of Appeals, No. 45A05-0902-CV-69DICKSON, Justice.

In this action for defamation per se and intentional infliction of emotional distress, the plaintiff appeals from the grant of summary judgment for the defendants. The Court of Appeals reversed in part. Dugan v. Mittal Steel USA, Inc., 911 N.E.2d 692 (Ind.Ct.App.2009). We granted transfer and now affirm the grant of summary judgment, concluding that the material facts are not in dispute and that a qualified privilege applies to preclude the defamation action.

The plaintiff, Christine Dugan, was working for Mittal Steel in 2004 when the defendant Jay Komorowski, a supervisor at Mittal Steel, made statements about the plaintiff to other Mittal Steel employees. Mittal Steel eventually discharged the plaintiff, and she then filed a grievance. In the ensuing arbitration, Mittal Steel was ordered to reinstate her with back pay. Appellant's App'x at 77. After her reinstatement, the plaintiff instituted this action against Komorowski and Mittal Steel. The defendants sought summary judgment, which the trial court granted, finding (a) that neither statement constituted defamation per se, (b) that both statements were protected by a qualified privilege and there was no evidence of abuse of privilege, and (c) that the claim of intentional infliction of emotional distress was not supported. The plaintiff appealed only as to the defamation claims.

A party is entitled to summary judgment upon demonstrating the absence of any genuine issue of fact as to a determinative issue unless the non-moving party comes forward with contrary evidence

929 N.E.2d 186

showing an issue of fact for trial Williams v. Tharp, 914 N.E.2d 756, 761-62 (Ind.2009) Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind.2009). An appellate court reviewing a trial court summary judgment ruling likewise construes all facts and reasonable inferences in favor of the non-moving party and determines whether the moving party has shown from the designated evidentiary matter that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Funston v. Sch. Town of Munster, 849 N.E.2d 595, 598 (Ind.2006); Coca-Cola Co. v. Babyback's Int'l, Inc., 841 N.E.2d 557, 561 (Ind.2006). But a de novo standard of review applies where the dispute is one of law rather than fact. Freidline v. Shelby Ins. Co., 774 N.E.2d 37, 39 (Ind.2002).1. Defamation per se

In her appeal, the plaintiff first challenges the trial court's conclusion that the alleged defamatory statements were not defamation per se. She argues that the statements accused her of both illegal activity and misconduct in her occupation and that they were false. In response, the defendants assert that the statements alleged by the plaintiff fail to support a claim for defamation per se because they do not impute criminal conduct or occupational misconduct without resort to extrinsic evidence.

To establish a claim of defamation, a “plaintiff must prove the existence of ‘a communication with defamatory imputation, malice, publication, and damages.’ ” Trail v. Boys & Girls Clubs of N.W. Ind., 845 N.E.2d 130, 136 (Ind.2006) (quoting Davidson v. Perron, 716 N.E.2d 29, 37 (Ind.Ct.App.1999), trans. denied ). A statement is defamatory if it tends “to harm a person's reputation by lowering the person in the community's estimation or deterring third persons from dealing or associating with the person.” Kelley v. Tanoos, 865 N.E.2d 593, 596 (Ind.2007) (internal citation omitted). One type of defamation action, alleging defamation per se, arises when the language of a statement, without reference to extrinsic evidence, constitutes an imputation of (1) criminal conduct, (2) a loathsome disease, (3) misconduct in a person's trade, profession, office, or occupation, or (4) sexual misconduct. Id.; see also Rambo v. Cohen, 587 N.E.2d 140, 145 (Ind.Ct.App.1992), trans. denied; Elliott v. Roach, 409 N.E.2d 661, 683 (Ind.Ct.App.1980), trans. not sought. In contrast, if the words used are not defamatory in themselves, but become so only when understood in the context of extrinsic evidence, they are considered defamatory per quod. McQueen v. Fayette County Sch. Corp., 711 N.E.2d 62, 65 (Ind.Ct.App.1999), trans. denied. In actions for defamation per se, damages are presumed, but in actions for defamation per quod, a plaintiff must prove damages. Rambo, 587 N.E.2d at 145-46.

At issue in this appeal are the following allegedly defamatory statements as asserted in the plaintiff's complaint:

6. In April, 2004, Defendant Komorowski told Kevin Vana, chief of security at Mittal, that the plaintiff was stealing time by working on Sundays on a “core exchange” scheme with her boss, Albert Verdusco, allegedly an attempt to defraud the Company. Defendant Komorowski also accused plaintiff of stealing an air compressor from the Company.

7. On or about September 9, 2004, Defendant Komorowski told Jim McClain and Zigmund Gorroll, employees of the Company, that plaintiff

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