Dulgarian v. Stone

• Decision Date: 24 July 1995
• Citation: Dulgarian v. Stone, 420 Mass. 843, 652 N.E.2d 603 (Mass. 1995)
• Court: Supreme Judicial Court of Massachusetts
• Parties: Richard DULGARIAN 1 v. Gregory STONE & another. 2

Page 603

652 N.E.2d 603

420 Mass. 843

Richard DULGARIAN¹ v.Gregory STONE & another. ²

Supreme Judicial Court of Massachusetts Middlesex.

Argued May 1, 1995.

Decided July 24, 1995.

Mark B. Johnson, Andover, for plaintiffs.

Martin J. Rooney, Boston, for defendants.

Before LIACOS, C.J., and ABRAMS, LYNCH, O'CONNOR and GREANEY, JJ.

ABRAMS, Justice.

In late May, 1989, WBZ-TV4 broadcast a three-part "I-Team" investigative report entitled "Highway Robbery?".The report concerned potential conflicts of interest between automobile body repair shops and drive-in appraisal services for automobile insurance companies.One portion of the second segment of the report focused on the plaintiffs.As a result of the broadcast of the investigative report, the plaintiffs brought this action for defamation (slander and libel), interference with business relations, injurious falsehood, and violation of G.L. c. 93A, § 11 (1994 ed.).A Superior Court judge allowed the defendants' motion for summary judgment on all counts.The plaintiffs appealed.We transferred the case here on our own motion.We affirm.

1.Facts.The facts are not disputed.On May 23, 1989, WBZ-TV4 broadcast a segment of a three-part investigative report entitled "Highway Robbery?".The text of the portion of the broadcast relating to the plaintiffs' operations is as follows:

REPORTER: "Our investigation uncovered another area of potential abuse involving appraisal services.Those services do damage estimates on cars after collisions.The law says it's a conflict of interest for an appraiser to use a body shop for drive-in estimates.Here's why: there could be collusion whereby the appraiser could steer business to the nearby shop.That could create an unfair advantage.

"On a recent Saturday we saw car after car pulling into an Allstate drive-in appraisal service operated out of this body shop in Lowell ... The owner of the shop insists this is perfectly legal...."

DULGARIAN: "People have a choice.They don't have to come here.We don't ask them to come here.They're given a choice of shops by the insurance company and they can go where they want."

REPORTER: "In addition, Dulgarian has his own independent appraisal service housed in another part of the building...."

DULGARIAN: "They're two individual businesses.They pay taxes differently.They're registered differently.OK?"

REPORTER: "We showed videotapes of Dulgarian's operations to a former member of the appraisers board who helped write the conflict of interest regulations, and to this current member.Both said that there appeared to be a violation of the law."In your opinion, does this present a conflict of interest?"

JANSSON: ³"It certainly does, in my opinion."

REPORTER: "We found similar set-ups at two other locations in Lowell, with body shops and appraisal services owned by the same people.Here, at Towne Auto Body, in the same building, and at American Auto Body, in two buildings on the same property.Our experts said both locations appear to be conflicts of interest.So what does this mean to the consumer?Possibly less competition among body shops, and higher prices for repairs, as the man who helped write the law explains."

BISCEGLIA: ⁴"We had hoped to have an open market, with no undue pressure put on the consumer to try to force him to go somewhere.Let him use the whole marketplace to pick his own bodyshop without someone trying to steer him or lowball to a specific shop."

. . . . .

REPORTER: "Late last week, Allstate told us that they have stopped using the National Auto Body site for drive-in appraisals because they also have concluded that there was a conflict of interest...."

2.Summary judgment."Summary judgment is appropriate when 'there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.'Mass.R.Civ.P. 56(c), 365 Mass. 824(1974)."Symmons v. O'Keeffe, 419 Mass. 288, 293, 644 N.E.2d 631(1995)."[The]party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates ... that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case."Id., quotingWheatley v. American Tel. & Tel. Co., 418 Mass. 394, 397, 636 N.E.2d 265(1994).SeeFlesner v. Technical Communications Corp., 410 Mass. 805, 809, 575 N.E.2d 1107(1991)(moving party's "burden need not be met by affirmative evidence negating an essential element of the plaintiff's case, but may be satisfied by demonstrating that proof of that element is unlikely to be forthcoming at trial").

"[S]ummary judgment procedures are especially favored in defamation cases....'Allowing a trial to take place in a meritless case "would put an unjustified and serious damper on freedom of expression." '... Even if a defendant in a libel case is ultimately successful at trial, the costs of litigation may induce an unnecessary and undesirable self-censorship."(Citations omitted.)King v. Globe Newspaper Co., 400 Mass. 705, 708, 512 N.E.2d 241(1987), cert. denied, 485 U.S. 940 and 962, 108 S.Ct. 1121 and 1227, 99 L.Ed.2d 281 and 427 (1988).

3. Defamation. a. Legal principles.The speech at issue was a news broadcast about a matter of public concern."[I]n order for [such speech] to be the basis of a recovery from th[e] media defendant[s], the plaintiffs must prove not only that the statements were defamatory but also that they were false."Friedman v. Boston Broadcasters, Inc., 402 Mass. 376, 381, 522 N.E.2d 959(1988).SeePhiladelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776, 106 S.Ct. 1558, 1563, 89 L.Ed.2d 783(1986)(where plaintiff is a private figure and newspaper articles are a matter of public concern, there is "a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages").This requirement insulates from liability statements that are not provable as false.Hepps, supra at 778, 106 S.Ct. at 1564.SeePhantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724, 727(1st Cir.), cert. denied, 504 U.S. 974, 112 S.Ct. 2942, 119 L.Ed.2d 567(1992)("statements made by a media defendant'must be provable as false' before there can be defamation liability");National Ass'n of Gov't Employees, Inc. v. Central Broadcasting Corp., 379 Mass. 220, 230, 396 N.E.2d 996(1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2152, 64 L.Ed.2d 788(1980), quotingHotchner v. Castillo-Puche, 551 F.2d 910, 912(2d Cir.), cert. denied sub nom.Hotchner v. Doubleday & Co., 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95(1977)("An assertion that cannot be proved false cannot be held libelous").The Superior Court judge correctly granted summary judgment because the plaintiffs had no reasonable expectation of proving the statements in the broadcast false.SeeSymmons, supra at 293, 644 N.E.2d 631, quotingWheatley, supra at 397, 636 N.E.2d 265.

b. Discussion.The relevant portion of the report began by stating that the "I-Team" investigation uncovered another area of "potential abuse."To prove the statement false, the plaintiffs would have to prove that there was no possibility, however slight, of any form of abuse in the matter under investigation.The plaintiffs did not have a reasonable expectation of proving the statement false.

The reporter stated that appraisal services do repair cost estimates on automobiles damaged in collisions.The plaintiffs did not contend that this statement was false.The reporter then gave an essentially correct statement of the relevant law.⁵SeeJones v. Taibbi, 400 Mass. 786, 512 N.E.2d 260(1987)(concluding that statement was "essentially true").The reporter's explanation of the purpose of the law was not challenged by the plaintiffs.Further, this statement does not appear "reasonably susceptible of a defamatory connotation."Id. at 791, 512 N.E.2d 260.

The reporter's statement that, on a recent Saturday "we saw car after car pulling into an Allstate drive-in appraisal service operated out of this body shop in Lowell," was not accurate.As seen in the accompanying video, the automobiles pulled up to the curb in front of a sign saying "Allstate Drive-In Appraisal Services" which was located in front of plaintiff, National Auto Body and Sales.In defamation actions, we"make an independent examination of the whole record."Milkovich v. Lorain Journal Co., 497 U.S. 1, 17, 110 S.Ct. 2695, 2704, 111 L.Ed.2d 1(1990).Viewed as a whole, the tenor of the report was accurate.The inaccurate description of automobiles pulling up to, instead of into the shop was counterbalanced by the accompanying video.The reporter's statements were balanced by Dulgarian's.The inaccurate statement, when considered in the context in which it was broadcast, was not "reasonably susceptible of a defamatory connotation."Taibbi, supra at 791, 512 N.E.2d 260.

There is no dispute that the statements by the reporter that "[t]he owner of the shop insists this is perfectly legal" and that "Dulgarian has his own independent appraisal service housed in another part of the building" were true.The plaintiffs did not contest the veracity of the statements made by Dulgarian.

The opinions of Jansson and Bisceglia (the experts, see nn. 3 & 4, supra ) that the law appeared to be violated and that there was a conflict of interest also do not support a cause of action.⁶As a republisher of these statements, the defendants are subject to the same liability as if they were the original publishers.SeeTaibbi, supra at 786, 512 N.E.2d 260, and cases cited.The Superior Court judge correctly determined that these were statements of opinion.In making such a determination, "[t]he court must 'examine the statement in its totality in the context in which it was uttered or published.The court must consider all the words used ... [and] must give weight to cautionary...