Hawkins v. Harris

• Decision Date: 27 July 1995
• Citation: 141 N.J. 207,661 A.2d 284
• Parties: , 64 USLW 2084 Linda HAWKINS, Plaintiff-Appellant, v. Brian HARRIS, Stephen Hopkins, Braff, EWH & S, Search Investigations, Inc., Alex Toia, State Farm Insurance Co., and New Jersey Automobile Full Insurance Underwriting Association (JUA), Defendants-Respondents, and Hanover Insurance Co., Defendant.
• Court: New Jersey Supreme Court

Page 207

141 N.J. 207

661 A.2d 284, 64 USLW 2084

Linda HAWKINS, Plaintiff-Appellant, v. Brian HARRIS, Stephen Hopkins, Braff, EWH & S, Search

Investigations, Inc., Alex Toia, State Farm Insurance Co.,

and New Jersey Automobile Full Insurance Underwriting

Association (JUA), Defendants-Respondents,

and

Hanover Insurance Co., Defendant.

Supreme Court of New Jersey.

Argued Sept. 12, 1994.

Reargued May 1, 1995.

Decided July 27, 1995.

Eldridge Hawkins, East Orange, for appellant.

Hugh Francis, Morristown, for respondent New Jersey Auto. Full Ins. Underwriting Ass'n (Francis & Berry, attorneys; Mr. Francis, Morristown, of counsel; Raymond N. Torres, Jr., Totowa, on the brief).

David L. Hack, Florham Park, for respondent State Farm Mut. Auto. Ins. Co. (Hack, Piro, O'Day, Merklinger, Wallace & McKenna, attorneys; Mr. Hack, of counsel; Douglas J. Olcott, on the brief).

Thomas F. Quinn, Newark, for respondents Search Investigations, Inc. and Alex Toia (Wilson, Elser, Moskowitz, Edelman & Dicker, attorneys; Mr. Quinn, Judith A. Woods, Brian E. Moffitt, on the briefs).

Jeffrey M. Kadish, Livingston, for respondents Brian Harris, Stephen Hopkins and Braff, and EWH & S (Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, attorneys).

Michael K. Furey, Morristown, for amicus curiae New Jersey State Bar Ass'n (William B. McGuire, President, Newark, attorney; Mr. Furey, Danielle E. Reid, Rumson, and Raymond A. Noble, Trenton, on the brief).

The opinion of the Court was delivered by

O'HERN, J.

Plaintiff alleges that in the course of her personal injury action against two motorists, she was subjected to repeated indignities by private investigators acting on behalf of an insurance company and a law firm representing one of the motorists. The Appellate Division has ordered a trial to determine whether defendants intentionally inflicted emotional distress on plaintiff, and whether defendants invaded plaintiff's privacy. The Appellate Division was divided on one issue, which is the subject of this appeal. The question is whether the absolute privilege accorded to statements made by participants in judicial proceedings extends to statements made by private investigators employed by the parties or their representatives. We agree with the majority of the Appellate Division panel that the absolute privilege does extend to statements made by private investigators. We affirm the judgment below.

I

Because the case arises on the defendants' motions for summary judgment, we may accept as true the facts as set forth in plaintiff's papers. On July 1, 1987, plaintiff, Linda Hawkins, had an automobile accident, which left her physically and mentally disabled. On July 14, 1987, Mrs. Hawkins was involved in another automobile accident, which worsened her condition. She filed lawsuits against the two responsible motorists. The two cases were consolidated for discovery and trial. A jury returned a verdict in favor of Mrs Hawkins for approximately $435,000. Thereafter, the motorists in the underlying action settled the case for $350,000.

On April 10, 1991, plaintiff filed a seven-count complaint against various attorneys, insurance companies, and investigators involved in the underlying litigation. We shall refer to them as the lawyer-defendants, the insurer-defendants, and the investigator-defendants. The insurer-defendants were the insurers of the various defendants in the automobile accident case. The lawyer-defendants were attorneys for one of the motorists in the underlying case. The lawyer-defendants and insurer-defendants had hired the investigator-defendants--Search Investigations, Inc., and Alex Toia--to gather information about the accidents and the consequential damages claimed by plaintiff. Plaintiff's complaint included allegations that the investigator-defendants defamed her during their investigation.

All defendants moved to dismiss plaintiff's complaint for failure to state a cause of action. Plaintiff moved to amend her complaint. Judge Yanoff dismissed the complaint and denied plaintiff's motion to amend. Thereafter, Judge Loftus signed an order granting the plaintiff leave to amend her complaint. When defendants notified Judge Loftus of Judge Yanoff's previous denial of the motion to amend, Judge Loftus vacated her order.

The Appellate Division clarified plaintiff's right to file an amended complaint and reversed the trial court's dismissal of plaintiff's claims for invasion of privacy, negligent infliction of emotional distress, and conspiracy. The Appellate Division affirmed the trial court's dismissal of plaintiff's other claims. One member of the Appellate Division panel dissented from the part of the decision affirming the dismissal of plaintiff's defamation claims against the investigator-defendants. He found three allegations in the amended complaint especially troubling: (1) investigator-defendants contacted an attendant at Mrs. Hawkins' health club and asked him how long he had been having an affair with her; (2) investigator-defendants twice contacted Mrs. Hawkins' minister and informed him that she and her husband were committing insurance fraud; and (3) investigator-defendants contacted Mrs. Hawkins' housekeeper and asked her how much money Mrs. Hawkins was paying her to lie.

Those words, portraying plaintiff as an unfaithful spouse, insurance cheat, and as a suborner of perjury, could amount to actionable defamation unless privileged. The dissenting member of the panel acknowledged that lawyers are given an absolute immunity for statements made in the course of judicial proceedings so that they may exercise unfettered judgment in their clients' interest. Nevertheless, he would "limit investigators to the benefit of a qualified privilege, holding them responsible for otherwise defamatory language if the [investigator] knows the statement to be false, or utters it in reckless disregard of its truth or falsity." Plaintiff appeals to us as of right on the basis of the dissent below. The only issue before us, then, is whether the investigator-defendants' statements were absolutely privileged.

II

Although defamatory, a statement will not be actionable if it is subject to an absolute or qualified privilege. A statement made in the course of judicial, administrative, or legislative proceedings is absolutely privileged and wholly immune from liability. That immunity is predicated on the need for unfettered expression critical to advancing the underlying government interest at stake in those settings.

[Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539, 563, 569 A.2d 793 (1990) (citations omitted).]

The trouble with privileges is that they are granted to good and bad alike. A legislator has an absolute privilege on the floor of a chamber to revile, to defame, or to distort the truth. Invoking the Speech and Debate Clause, U.S. Const. art. I, § 6, a lawmaker may use this provision "as a cloak of immunity from prosecution while he [is] smearing the reputations and characters of American citizens whom the Bill of Rights [had] been designed to protect." Albert Coates, Preserving the Constitution: The Autobiography of Senator Sam Ervin, 63 N.C.L.Rev. 993, 994 (1985) (book review). We accept such a privilege because it is more important to allow a lawmaker to speak and vote freely on matters of public concern than it is to punish the lawmaker as a rogue. The Speech and Debate Clause protects the integrity of the legislative process by preventing the "intimidation of legislators by the Executive and accountability before a possibly hostile judiciary." Gravel v. United States, 408 U.S. 606, 617, 92 S.Ct. 2614, 2623, 33 L.Ed.2d 583, 597 (1972).

A corresponding privilege extends to members of the judiciary in the performance of judicial duties.

Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as [the] Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1871). This immunity applies even when the judge is accused of acting maliciously and corruptly, and it "is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences." (Scott v. Stansfield, LR 3 Ex 220, 223 (1868), quoted in Bradley v. Fisher, supra, [13 Wall. at] 349; note, at 350, 20 L.Ed. at 650.)

[Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288, 294 (1967).]

"The principle of judicial immunity has remained viable in the face of challenges in some very emotionally and politically charged cases." Jarvis v. Drake, 250 Kan. 645, 830 P.2d 23, 26 (1992).

The extension of an absolute privilege to jurors, witnesses, and parties and their representatives is grounded in similar public-policy concerns. In Fenning v. S.G. Holding Corp., 47 N.J.Super. 110, 135 A.2d 346 (App.Div.1957), the late Chief Justice Hughes, then sitting in the Appellate Division, explained our adherence to the doctrine of litigation immunity:

The doctrine that an absolute immunity exists in respect of statements, even those defamatory and malicious, made in the course of proceedings before a court of justice, and having some relation thereto, is a principle firmly established, and is responsive to the supervening public policy that persons in such circumstances be permitted to speak and write freely without the restraint of fear of an ensuing defamation action, this sense of freedom being indispensable to the due administration of justice.

[Id. at 117, 135 A.2d 346 (citations omitted).]

Our doctrine derives from the English rule of immunity. The English rule differs slightly from the American rule in that England affords a true, absolute privilege without regard to the relevancy of the statements to the subject matter...