Haworth v. Feigon

• Decision Date: 06 April 1993
• Citation: 623 A.2d 150
• Parties: Stephen HAWORTH v. Lee FEIGON, et al.
• Court: Maine Supreme Court

Page 150

623 A.2d 150

Stephen HAWORTH v. Lee FEIGON, et al.

Supreme Judicial Court of Maine.

Argued Jan. 5, 1993.

Decided April 6, 1993.

Mark S. Kierstead (orally), Waterville, for plaintiff.

Robert E. Sandy, Jr. (orally), Sherman, Sandy & Lee, Waterville, for defendants.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, COLLINS and RUDMAN, JJ.

CLIFFORD, Justice.

Defendants Lee and Leanne Star Feigon appeal from a judgment entered in the Superior Court (Kennebec County, Chandler, J.) following a jury verdict in favor of the plaintiff, Stephen Haworth, on his complaint alleging defamation, and against the Feigons on their counterclaim alleging breach of contract. The Feigons contend that the defamation verdict should be set aside and the compensatory and punitive damage awards should be vacated. The Feigons also attack the verdict against them on their counterclaim for breach of contract, claiming error in the admission of certain evidence and that the verdict is not supported by the evidence. We find no error and affirm the judgment.

Based on the evidence, the jury could have found the following facts. In 1984, the Feigons were undertaking to build a 100% solar heated home that they had designed with the help of an architect and an expert on solar technology. The Feigons acted as their own general contractor, and contracted with Haworth, a builder, to provide the labor and carpentry work for a specified price. The contract, dated July 4, 1984, set no completion date, but Haworth estimated that the project would take about six months.

Numerous disagreements marked the construction process. By July of 1985, the house was not yet complete, and the Feigons hired others to finish the carpentry work at an additional cost to them. The house was substantially complete by the fall of 1985. In August of the following year, Linda Lenz, who, with her husband, was seeking to rent property for six months while they were having a home constructed, contacted the Feigons in response to their advertisement offering rental property in the Waterville area. During the course of a telephone conversation with Lenz, Leanne Feigon learned that Haworth was building the Lenz home and said to Lenz that she would need longer than a six-month rental because Haworth had not yet finished the Feigon home. Subsequently, after making plans to view the rental property, Lenz went to the Feigon home and was met there by Lee Feigon, who stated without provocation or introduction, "I hear you hired the drunk." Lee further commented to Lenz that "the guys would all arrive in the morning to work and it got earlier and earlier each day that they started drinking and they would start leaving earlier and earlier, and eventually not show up." During the drive to view the rental property, Leanne stated that she was glad the Lenzes had hired Haworth because the Feigons were going to sue him and they wanted him to have some money. ¹

Haworth brought the within complaint for defamation (Count I), along with a claim for breach of an oral contract to provide Haworth with publicity in connection with the construction project (Count II). ² The Feigons answered the complaint denying Haworth's claims, and counterclaimed for breach of contract, seeking to recover the cost of completing the house, of repairing a garage door damaged by Haworth, and reimbursement for personal Following a trial, the jury returned a general verdict in favor of Haworth on the defamation claim, and awarded him compensatory damages of $20,000 and punitive damages of $10,000. The jury also found for Haworth on the Feigons' counterclaim. This appeal by the Feigons followed.

toll calls Haworth made on the Feigons' telephone during the construction.

I.

HAWORTH'S RECOVERY FOR DEFAMATION

Common law defamation consists of:

(a) a false and defamatory statement concerning another;

(b) an unprivileged publication to a third party;

(c) fault amounting at least to negligence on the part of the publisher; and

(d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

Lester v. Powers, 596 A.2d 65, 69 (Me.1991) (adopting Restatement (Second) of Torts § 558 (1977)).

A.

The Feigons first contend that the jury should not have been allowed to consider any of the statements because as a matter of law they were in the form of opinion and not false statements of fact. The court, in accordance with Caron v. Bangor Publishing Co., 470 A.2d 782, 784 (Me.1984), determined that the statements were not pure opinion but were capable of being interpreted as having factual content. Although the United States Supreme Court has cast doubt on the constitutional distinction between fact and opinion, at least in the case of a media defendant, statements of fact and statements of opinion that can reasonably be interpreted as implying factual assertions are properly submitted to the jury. ³ See Yetman v. English, 168 Ariz. 71, 811 P.2d 323, 331 (1991). Thus, it was not error for the court to refuse to rule that Lee Feigon's statement, "I hear you hired the drunk," as a matter of law had no factual content and was entitled to absolute protection. Accordingly, it was proper for the court to have the jury determine whether the Feigon's statement was an opinion or false assertion of fact. Accord True v. Ladner, 513 A.2d 257, 262 (Me.1986); Restatement (Second) of Torts § 566, comment c, illustration 3 (1977).

B.

The Feigons also contend that their statements are not inherently defamatory, that the appellation "drunk" is susceptible of varying interpretations, and that the comments regarding the workers leaving early do not necessarily convey a derogatory meaning. We disagree.

Whether the statements are capable of a defamatory meaning is a question for the court, and involves not just the words themselves, but the totality of the circumstances surrounding the communication. Bakal v. Weare, 583 A.2d 1028, 1030 (Me.1990); see also Fortier v. IBEW, Local 2327, 605 A.2d 79, 80 (Me.1992).

Whether or not the language set out will bear the interpretation given to it by the plaintiff, whether or not it is capable of conveying the meaning which he ascribes to it, is in such a case a question of law for the court. What meaning the words did convey to one hearing him is in such a case a question for the jury.

Bradburg v. Segal, 121 Me. 146, 148, 116 A. 65, 66 (1922); see also Restatement In addition, Leanne Feigon contends for the first time on appeal that the judgment against her should be set aside because her statements standing alone are not capable of defamatory import and, therefore, there is no evidence that would support the jury's verdict against her. At trial, both Feigons denied that they made any of the statements denigrating Haworth. There was evidence, however, that Lee and Leanne Feigon together served as the general contractor on the construction project. Lenz testified that the first statement made to her denigrating Haworth, implying that because Haworth was their contractor the Lenzes would have to rent property for a longer period of time, was made by Leanne. The statements made by Lee that Lenz "hired the drunk" and that there was drinking on the job resulting in the work crew leaving the job site earlier and earlier, eventually not showing up at all, were made in the presence of, and were never repudiated or contradicted by Leanne. Indeed, shortly after these statements were made by Lee, Leanne told Lenz that she was glad that the Lenzes had hired Haworth because Haworth would then have money enabling the Feigons to collect on their anticipated judgment against him.

                (Second) of Torts § 566 comment c.  Because the Feigons were specifically commenting on their experience with Haworth in his professional capacity as the builder of their house, and given the derogatory connotation capable of attaching to the statements, it was not error for the court to conclude that the words spoken were capable of defamatory meaning, nor for the jury to determine that Lenz, on hearing the words, attributed a defamatory meaning to them. 4  Cf. True, 513 A.2d at 262
                

Although the Feigons made a general motion for a directed verdict, Leanne did not request that the court distinguish her statement from that of her husband for purposes of liability, nor did she ask for a separate jury verdict form, or that the jury be instructed to assess her liability for defamation separately. In these circumstances, we cannot say that the jury erred in returning a general verdict against the Feigons. See Stubbs v. Bartlett, 478 A.2d 690, 693 (Me.1984) (failure to object to special verdict form that did not make separate liability inquiry as to husband and wife plaintiffs precluded subsequent complaint of failure to award wife separate damages).

C.

The Feigons further contend that because they shared a common interest with the Lenzes in determining the amount of time the Lenzes would need the rental property, their communications to Lenz were protected by the conditional privilege accorded to statements made between parties sharing a common interest, and the court's failure to so instruct the jury was error. Because the court's instruction to the jury gave the Feigons the same protection they would have been entitled to if their statements were privileged, any error in the court's conclusion that there was no conditional privilege was harmless. "A conditional privilege against liability for defamation arises in settings where society has an interest in promoting free, but not absolutely unfettered speech." Lester, 596 A.2d at 69 (citations omitted).

Even if a conditional privilege exists, however, it may be lost through abuse. The privilege does not protect against liability for false statements made with knowledge of their falsity or in reckless disregard for their truth or falsity. ⁵ Id.; Restatement (Second) of Torts § 600. In this case, the court...