Hinerman v. Daily Gazette Co., Inc.

Decision Date15 July 1992
Docket NumberNo. 20489,20489
Citation423 S.E.2d 560,188 W.Va. 157
CourtWest Virginia Supreme Court
Parties, 20 Media L. Rep. 2169 Raymond A. HINERMAN, Plaintiff Below, Appellee, v. The DAILY GAZETTE COMPANY, INC., Defendant Below, Appellant.
[188 W.Va. 161] consider the factual record in full. Although credibility determinations are reviewed under the clearly-erroneous standard because the trier of fact has had the opportunity to observe the demeanor of the witnesses, the reviewing court must examine for itself the statements in issue and the circumstances under which they were made to determine whether those statements are of a character that the principles of the First Amendment protect

5. "Evidence that a media defendant intentionally 'avoided' the truth in its investigatory techniques or omitted facts in order to distort the truth may support a finding of actual malice necessary to sustain an action for libel." Syllabus Point 5, Dixon v. Ogden, 187 W.Va. 120, 416 S.E.2d 237 (1992).

6. The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported. However, not only must the report be accurate but it must be fair. Even a report that is accurate so far as it goes may be so edited and deleted as to misrepresent the proceeding and thus be misleading. Thus, although it is unnecessary that the report be exhaustive and complete, it is necessary that nothing be omitted or misplaced in such a manner as to convey an erroneous impression to those who hear or read it. An example would be a report of the discreditable testimony in a judicial proceeding and a failure to publish the exculpatory evidence or the use of a defamatory headline in a newspaper report, the qualification of which is found only in the text of the article. The reporter is not privileged to make additions of his own that would convey a defamatory impression nor to impute corrupt motives to anyone, nor to indict expressly or by innuendo the veracity or integrity of any of the parties.

7. Under the First Amendment to the Constitution of the United States, it is the obligation of the courts to protect the free flow of information and to encourage robust, unfettered debate; therefore, reviewing courts must be circumspect about sustaining large punitive damages awards against media defendants based upon the knowing, intentional, and spiteful conduct of employees; however, in the courts' efforts to promote free speech and discourage self-censorship, there can be no tolerance for media arrogance. Therefore, once a victim has been knowingly and intentionally libeled, a media defendant exacerbates its liability for punitive damages on every day that it fails to make a prompt, prominent and abject apology to rectify the harm that it has done.

8. Although a prompt, prominent and abject apology, combined with an offer of reasonable compensation will not shield a media defendant from paying appropriate actual damages, under Syllabus Point 3 of Garnes v. Fleming Landfill, 186 W.Va. 656, 413 S.E.2d 897 (1992), the trial court and this Court, in the process of independently examining all issues that were before the jury as required by New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), may reduce punitive damages to zero in deference to free speech imperatives when actual damages are substantial and the offending media organization has made a prompt, prominent and abject apology along with an offer of reasonable compensation.

9. Jurisdiction implies or imports the power of the Court, venue the place of the action.

10. In defamation cases, three types of plaintiffs exist: (1) public officials and candidates for public office; (2) public figures; and, (3) private individuals. Public officials are those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of government affairs; however, the public official category cannot be thought to include all public employees.

11. Although it is not necessary to identify a president, governor, U.S. senator, congressman, or other well-known public official as serving in a particular office, a private person who is a "public official" only by virtue of his holding a low-level Rudolph L. DiTrapano, Charleston, Rebecca A. Baitty, Sarasota, Fla., for appellant.

[188 W.Va. 162] government or quasi-government position, must be identified in his public capacity before a media defendant in a libel action may shield itself behind the special rules of the libel law that apply to public officials.

Harry P. Waddell, Gordon H. Copland, Steptoe & Johnson, Clarksburg, for appellee.

NEELY, Justice:

This is a libel case against The Charleston Gazette in which the plaintiff, Raymond Hinerman, recovered $75,000 in actual damages and $300,000 in punitive damages. We affirm.


Sam Levin is a Russian immigrant who came to the United States in 1975 and moved to Wheeling in 1977. Mr. Levin was trained as a mining engineer in Russia and he found work in West Virginia as a miner. While working, Mr. Levin suffered a heart attack. Mr. Levin filed a Workers' Compensation claim and was represented by legal counsel for District 6 of The United Mine Workers (UMW) free of charge. At that time, the UMW's lawyer was Raymond Hinerman, the appellee in the case before us.

Mr. Levin's Workers' Compensation claim was contested on several grounds. There was some question concerning whether: (1) Mr. Levin had a preexisting heart condition; (2) the heart condition arose from and in the course of Mr. Levin's employment; and (3) the condition produced permanent total disability. The initial determination was that a 20 percent award would fully compensate Mr. Levin for his work-related injury.

Mr. Levin protested the initial 20 percent award, and while his appeal was being processed, District 6 of the UMW replaced Raymond Hinerman with Craig Broadwater as their lawyer. Mr. Broadwater suggested to Mr. Levin that he retain Mr. Hinerman privately because of Mr. Hinerman's experience with complex Workers' Compensation cases.

Mr. Broadwater made clear to Mr. Levin that private representation by Mr. Hinerman would not be free, and in fact, Mr. Broadwater showed Mr. Levin a copy of the West Virginia statute on lawyers' fees in Workers' Compensation cases. Mr. Levin then requested the services of Mr. Hinerman as his private lawyer. There followed conversations and a signed, written contract setting forth the terms under which Mr. Hinerman agreed to act as Mr. Levin's lawyer. The contract into which the two parties entered was a standard contingent fee contract that called for Mr. Hinerman to receive 20 percent of all compensation awarded Mr. Levin for a period of 208 weeks. This was the maximum fee allowed by statute.

While the appeal of Mr. Levin's case to the Workers' Compensation Appeal Board was being prepared, Mr. Levin moved to Florida. Mr. Levin remained in constant communication with Mr. Hinerman through collect telephone calls to him. After Mr. Hinerman had presented his oral argument before the Workers' Compensation Appeal Board, the appeal board increased Mr. Levin's award to total permanent disability. Mr. Levin's employer did not appeal. On 8 June 1982, the commissioner directed payment to Mr. Levin of $19,782.38 in back benefits and a monthly stipend of $1,162.38.

Without informing Mr. Hinerman, Mr. Levin telephoned and sent a telegram to the Workers' Compensation commissioner revoking the commissioner's authority to honor Mr. Hinerman's demand for attorneys' fees. When Mr. Hinerman learned of this, he sent a letter demanding 20 percent of the award to date. After six weeks of repeated demands for payment pursuant to his contract, Mr. Hinerman sued Mr. Levin.

When Mr. Levin failed to answer, Mr. Hinerman moved for...

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