Hoeper v. Air Wis. Airlines Corp.

• Citation: 232 P.3d 230
• Decision Date: 12 November 2009
• Docket Number: No. 08CA1358.,08CA1358.
• Parties: William L. HOEPER, Plaintiff-Appellee and Cross-Appellant,v.AIR WISCONSIN AIRLINES CORPORATION, a Delaware corporation, Defendant-Appellant and Cross-Appellee.
• Court: Court of Appeals of Colorado

232 P.3d 230

William L. HOEPER, Plaintiff-Appellee and Cross-Appellant,v.AIR WISCONSIN AIRLINES CORPORATION, a Delaware corporation, Defendant-Appellant and Cross-Appellee.

No. 08CA1358.

Colorado Court of Appeals,

Div. IV.

Nov. 12, 2009.

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Overturf McGath Hull & Doherty, P.C., Scott A. McGath, Jason P. Rietz, Nikolai N. Frant, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant.

Jaudon & Avery LLP, Alan D. Avery, David H. Yun, Jared R. Ellis, Denver, Colorado, for Defendant-Appellant and Cross-Appellee.

David M. Gaouette, United States Attorney, Paul Farley, Assistant United States Attorney, Denver, Colorado, for Amicus Curiae United States.

Jaudon & Avery, LLP, Alan D. Avery, David H. Yun, Denver, Colorado; Crowell & Moring, LLP, Lorraine B. Halloway, Washington, D.C., for Amicus Curiae Regional Airline Association.

Opinion by Judge WEBB.

This case juxtaposes important air transportation safety procedures established by federal statute against remedies for defamation under state common law. Defendant, Air Wisconsin Airlines Corporation, appeals the judgment entered on a jury verdict in favor of plaintiff, William L. Hoeper, on his defamation claim, awarding $849,625 in compensatory damages and $391,875 in punitive damages.

Air Wisconsin primarily asserts that section 44941 of the Federal Aviation and Transportation Security Act (ATSA) provides immunity from liability for its employee's allegedly defamatory statements to the Transportation Security Administration (TSA) connoting that Hoeper was a threat to a departing aircraft because he was mentally unstable and possibly armed. Hoeper cross-appeals the trial court's refusal to award prejudgment interest. These issues are before us on a C.R.C.P. 54(b) order entered pending retrial of Hoeper's outrageous conduct claim, on which the jury failed to reach a verdict.

We conclude that the trial court properly submitted the ATSA immunity issue to the jury; the record supports the jury's rejection of immunity; the employee's statements to TSA were not protected opinions because they conveyed provably false negative connotations; reviewed de novo, the record includes clear and convincing evidence that the employee acted with actual malice; and Hoeper did not preserve his claims for prejudgment interest under Virginia law. Therefore, we affirm and remand for further proceedings on his outrageous conduct claim.

I. Facts

Air Wisconsin is a commercial airline that provides regional service as United Express. When this action arose, Hoeper had been an Air Wisconsin captain since 1998 and the individual defendants, Mark Schuerman, Patrick Doyle, and Scott Orozco, who are not parties to this appeal, were Air Wisconsin employees.

In September, October, and November 2004, Hoeper failed three proficiency checks during his flight simulator training to fly a larger aircraft. In debriefings following two of those failures, verbal confrontations occurred between Hoeper and Doyle, Air Wisconsin's fleet manager, and between Hoeper and Todd Hanneman, an Air Wisconsin instructor pilot.

Although Air Wisconsin could have terminated Hoeper after the third proficiency check failure, he was given a fourth opportunity under a last chance agreement. In exchange, Hoeper waived certain rights under his collective bargaining agreement. Before Hoeper could attempt the final proficiency check, however, he needed additional training and the recommendation of an Air Wisconsin instructor pilot.

On December 8, 2004, Hoeper flew from Denver to Virginia for flight simulator training with Schuerman, another instructor pilot, in a simulator owned by another company. During that training, a dispute arose. Hoeper raised his voice, used profanity, and terminated the session. For an experienced pilot, such behavior was unusual. He also told Schuerman that he intended to contact the Air Line Pilots Association (ALPA) for legal advice.

About 11:00 a.m., CST, Schuerman called Doyle, who was at Air Wisconsin's headquarters in Wisconsin, to report that Hoeper “had blown up and was very angry at me,” and that he was “uncomfortable” remaining at the simulator with Hoeper. Schuerman did not say that Hoeper was threatening or unstable, nor did Doyle ask if Schuerman felt threatened by Hoeper. Doyle testified that based on this information, he was very fearful of what Hoeper might do.

Doyle arranged for Air Wisconsin to book Hoeper on a United Air Lines (UAL) flight to Denver leaving from Dulles International Airport (Dulles) at 1:30 p.m. Then Doyle called Daniel Scharf, an Air Wisconsin employee who had been acting as Hoeper's first officer during the training, and asked him to drive Hoeper to Dulles. Doyle did not request Scharf to provide any information about what had occurred at the simulator, nor did Doyle tell Scharf that Hoeper might be dangerous. Doyle had no further contact with either Schuerman or Scharf that day, and he never spoke to Hoeper.

When Hoeper could not make the 1:30 flight, Air Wisconsin booked him on a later UAL flight. Doyle did not take any steps to induce UAL, for which Air Wisconsin performs passenger and baggage transfer services at Dulles and elsewhere in the country, to limit Hoeper's access to the aircraft. UAL could have done so independently of TSA had it been informed of a problem with Hoeper.

Before noon, Doyle approached Orozco, Air Wisconsin's Chief Pilot, who officed next to Doyle about Hoeper. Orozco told Doyle that he was leaving for a meeting. By approximately 1:30 p.m., Orozco had returned and taken a very brief telephone call from Hoeper and an ALPA attorney. Orozco confirmed that the training was over and Hoeper was to fly back to Denver, but made no other inquiries. Orozco never spoke to Schuerman or Scharf.

Shortly thereafter, Doyle and Orozco began discussing Hoeper. They were joined by Kevin LaWare, an Air Wisconsin vice president to whom Doyle reported, and later by Robert Frisch, the Assistant Chief Pilot, who reported to Orozco. The four talked about: Doyle's conversation with Schuerman; Hoeper's prior displays of anger in training sessions; Hoeper's expectation of being terminated based on the failed training and the last chance agreement; as a Federal Flight Deck Officer (FFDO), Hoeper could carry a weapon aboard a commercial aircraft ¹; at Denver International Airport, he could have boarded without checking his weapon; whether any means existed to determine the whereabouts of his weapon; one other Air Wisconsin pilot had brought an FFDO weapon to simulator training in violation of FFDO procedures; and two incidents that had occurred before the FFDO program involving disgruntled employees of other airlines who had boarded aircraft with firearms and had caused incidents leading to deaths and injuries.

The meeting lasted 15-20 minutes and included unrelated operational issues. LaWare was not told that Orozco had just spoken to Hoeper. Orozco, Doyle, and LaWare testified that the group had concluded they could not determine whether Hoeper had his FFDO firearm with him. Orozco and LaWare also testified that they had no specific reason to believe Hoeper had brought his weapon with him in violation of FFDO procedures, although they could not preclude that possibility. Frisch testified that he did not remember discussing any specific reason why Hoeper would have brought his weapon with him.

According to Orozco, the whereabouts of Hoeper's weapon “was more of a question than a concern,” and he would not have wanted Doyle to tell TSA that Hoeper “may be armed.” LaWare did not anticipate that Doyle would use those words to TSA. None of the four men knew of Hoeper having brought his weapon to the earlier trainings or otherwise having ever violated FFDO weapons procedures.

At the end of the meeting and without calling Schuerman for more information, LaWare decided that TSA should be contacted. He testified that he acted pursuant to that agency's Aircraft Operator Standard Security Program ², and because TSA oversees the FFDO program.³ Orozco recalled LaWare saying “we should at least ask TSA if they have any concerns,” but LaWare did not instruct Doyle what, specifically, to say. Nor did Doyle indicate what he planned to say.

In a pretrial deposition, Schuerman testified that Hoeper did not pose a threat to anyone. At trial, LaWare agreed that this testimony was not as Doyle had articulated the situation. Orozco testified that Schuerman's description of Hoeper “wasn't the information conveyed to me [by Doyle].” Frisch recalled no reason having been presented why Hoeper would be a threat to the UAL flight, nor did he draw this conclusion.

Doyle called TSA shortly after 2:00 p.m., CST. The jury found that Doyle made the following statements during that call:

• [Hoeper] was an FFDO who may be armed. He was traveling from IAD-DEN later that day and we were concerned about his mental stability and the whereabouts of his firearm.

• Unstable pilot in FFDO program was terminated today.

At trial, Doyle acknowledged that he lacked the ability to assess Hoeper's mental stability and denied having made such a statement to TSA “because I did not want to cause Mr. Hoeper undue harm.” LaWare and Orozco testified that they did not consider Hoeper mentally unstable, although Orozco felt that Hoeper “was acting irrational” when he stopped the simulator training. Frisch did not have any information at the time that Hoeper's mental stability was in question. LaWare could not recall Doyle saying that he had concerns about Hoeper's mental stability, and testified that he would not have told TSA Hoeper was mentally unstable. Orozco testified that he did not intend for Doyle to tell TSA anything about Hoeper's mental stability.

As a result of Doyle's call, the aircraft carrying Hoeper was returned to the gate and armed officers removed him. He was detained and questioned by TSA, which eventually released him, and he returned to Denver....