Lewis v. Oliver

• Decision Date: 14 October 1993
• Docket Number: CA-CV,No. 1,1
• Citation: 873 P.2d 668,178 Ariz. 330
• Parties: Bradford W. LEWIS, Plaintiff-Appellant, v. Robert J. OLIVER and Westcor Aviation Inc., an Arizona corporation, Defendants-Appellees. 91-0336.
• Court: Arizona Court of Appeals

Page 668

873 P.2d 668

178 Ariz. 330

Bradford W. LEWIS, Plaintiff-Appellant, v. Robert J. OLIVER and Westcor Aviation Inc., an Arizona corporation, Defendants-Appellees.

No. 1 CA-CV 91-0336.

Court of Appeals of Arizona,

Division 1, Department B.

Oct. 14, 1993.

Reconsideration Denied Feb. 2, 1994.

Review Denied May 17, 1994. ^*

[178 Ariz. 331] Rake Downey McGovern Shorall & Cohen, P.C. by M.E. Rake, Jr., Thomas J. Shorall, Jr., Sharon E. Ravenscroft (fka Reuss), Phoenix, for plaintiff-appellant.

Murphy & Posner by Daryl M. Williams, Phoenix, for defendants-appellees.

OPINION

GRANT, Presiding Judge.

In this appeal we hold that a complaint made to superiors of a safety inspector of the Federal Aviation Administration ("FAA") is entitled to a qualified, but not an absolute privilege. We also hold that an FAA safety inspector is a public official who must establish a defendant's actual malice in making defamatory statements concerning the performance of the inspector's job. Because the plaintiff presented evidence sufficient to create a jury question on whether the defendant acted with actual malice, we reverse the grant of summary judgment for the defendant and remand to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

The appellant, Bradford Lewis ("Lewis"), appeals from summary judgment in favor of the appellees, Westcor Aviation, Inc. ("Westcor"), and its president and chief executive officer, Robert J. Oliver ("Oliver"). Because this is an appeal from summary judgment, we view the facts in the light most favorable to the appellant. Gordinier v. Aetna Casualty & Sur. Co., 154 Ariz. 266, 267, 742 P.2d 277, 278 (1987).

Lewis is an aviation safety inspector with the Federal Aviation Administration. In his inspection of air transportation providers, if he finds violations of FAA safety regulations during his inspections, he recommends action to his superiors. He has no discretion to impose sanctions himself against the air transportation carriers he inspects for safety violations. He merely reports his findings to superiors, who are responsible for determining any course of action.

In July of 1986, Lewis was assigned by his supervisors to lead a team of inspectors conducting an in-depth inspection of Westcor. Lewis reported numerous violations of safety regulations and recommended that Westcor be sanctioned. His superiors agreed. As a result of the inspection, the FAA sought to revoke both Westcor's air carrier certificate and Oliver's pilot certificate.

An administrative hearing before the National Transportation Safety Board was held at which Lewis testified against Oliver and Westcor. The administrative law judge found that Oliver and Westcor were responsible for falsifying records and ordered revocation of Westcor's air carrier certificate. The FAA later settled the affair with Westcor and Oliver and agreed to drop the revocation charges.

On July 18, 1988 Oliver called a "Hotline" established by the Inspector General's Office of the Department of Transportation. He complained about Lewis and the propriety of the inspection and enforcement action. The Inspector General's office assigned Special Agent Robert Guthmiller ("Guthmiller") to investigate Oliver's complaint.

Guthmiller prepared a report of his investigation, which he submitted to Lorence Bessette ("Bessette"), Lewis's superior. Bessette reviewed the report and prepared an analysis in which he concluded that Lewis had committed no misconduct and should be exonerated of all of Oliver's charges. Bessette concluded essentially that Oliver's accusations twisted Lewis's testimony.

On September 14, 1989, Oliver met with Bessette to discuss the latter's analysis. Present at the meeting, in addition to Oliver and Bessette, were David Welsh of Westcor, and Oscar Culp and Leonard Levandowski of the FAA. Oliver accused Lewis of perjury and abuse of authority at this meeting. Bessette took notes and produced a record of the meeting in which he wrote:

He [Oliver] made it very clear that he was out to get Lewis and stated, "I will continue to use the system to the fullest and will not back off until I get Lewis."

I asked him why he was picking on the lowest man in the organization structure as Lewis did not have the power that he was assigning to him. I explained to him that an inspector can only report what he sees and that the responsibility for taking enforcement action was coordinated through his unit supervisor, office manager, Division staff, and ultimately Western Pacific Regional Counsel (AWP-7) before any decision to take legal action is made. He answered that with an analogy that Lewis was like a traffic cop hiding in the bushes and catches him speeding. I asked him that if he was speeding and he was caught why would he go after the cop if he was guilty. He responded, "because he was laying for me and that was what Lewis was doing, laying for me." Many times during this meeting he would regress to his Marine experience and colloquially express his feelings to describe his intentions. In this case he stated, "Lewis was on his six, and now, it's his turn I'm on his." He stated that he planned to sue Lewis if he could "draw him out from under the federal cloak of protection."

Oliver also caused others to file complaints against Lewis. Lewis asserts that he was exonerated by the internal investigation but Oliver's accusations damaged his reputation and harmed his chances for promotion at the FAA.

Lewis filed his complaint on January 17, 1990, alleging defamation, intentional infliction of emotional distress, intentional interference with business relationship and conspiracy. Oliver filed a motion for summary judgment, arguing: the claims were barred by the statute of limitations; his statements were absolutely privileged; and if the statements were only conditionally privileged, the privilege was not abused. The trial court granted the motion holding: (a) the statements were absolutely privileged; and (b) even if they were only conditionally privileged, Lewis had failed to demonstrate sufficient evidence of actual malice to justify a trial. The court denied Lewis's motion for new trial and entered final judgment on April 8, 1991 and Lewis filed a timely notice of appeal. We have jurisdiction pursuant to Ariz.Rev.Stat.Ann. ("A.R.S.") sections 12-2101(B) and (F)(1).

ISSUES

1. Are Oliver's statements protected by absolute or conditional privilege?

2. Is Lewis a public official?

3. Has Lewis presented enough evidence of actual malice to create a jury question?

4. Did the trial court err in denying Lewis's motion under Rule 56(f), Arizona Rules of Civil Procedure, for more time to respond to the motion for summary judgment?

5. Did Lewis have the legal and factual basis to present the claims of intentional infliction of emotional distress, interference with business relationships and conspiracy to the jury?

6. Is Lewis's complaint for defamation barred by the Statute of Limitations?

DISCUSSION

I. ABSOLUTE OR CONDITIONAL PRIVILEGE

We first consider the privilege issue. Oliver argues his statements were absolutely privileged, while Lewis argues that only a conditional privilege applies.

There are two classes of privileges, "absolute" and "qualified." The absolute privileges created by law are based upon the recognition that certain persons, because of their special position or status, should be as free as possible from fear that their actions in that position might have an adverse effect upon their own personal interest. Restatement (Second) of Torts, Chapter 25, Topic 2, Title B, "Absolute Privilege Irrespective of Consent," pp. 242-43. Qualified privileges are limited to particular occasions requiring the exchange of information reasonably thought to be true. Id.

Green Acres Trust v. London, 141 Ariz. 609, 612-13, 688 P.2d 617, 620-21 (1984). Whether a privilege arose is a question of law for the court. Id. at 613, 688 P.2d at 621. A question of law is reviewed de novo by this court. Employer's Mut. Cas. Co. v. McKeon, 170 Ariz. 75, 821 P.2d 766 (App.1991).

The difference between the absolute and qualified privileges is significant. As to absolute privilege, "[t]he defense is absolute in that the speaker's motive, purpose or reasonableness in uttering a false statement do not affect the defense." Green Acres Trust, 141 Ariz. at 613, 688 P.2d at 621. The conditional privilege, on the other hand, does not provide an absolute defense:

It differs from the defense of absolute privilege in that "the interest which the defendant is seeking to vindicate is regarded as having an intermediate degree of importance, so that the immunity conferred is not absolute, but is conditioned upon publication in a reasonable manner and for a proper purpose." [William L Prosser, Law of Torts, § 115, at 786 (4th ed. 1971) ]. Absent a proper purpose or reasonable manner of publication, the defense fails. The privilege "give[s] protection from liability only when exercised for the purpose for which [it] is given and with reasonable care that no more harm shall be done to the interests of others than is necessary to accomplish the end for which the privilege is given." Restatement (Second) of Torts, Chap. 25, Topic 3, Title A, "Occasions Making a Publication Conditionally Privileged," p. 258.

Id. at 616, 688 P.2d at 624. The test to determine whether a conditional privilege applies is to decide whether the circumstances in which the communication was made created an obligation to speak. Id. at 616, 688 P.2d at 624; Miller v. Servicemaster by Rees, 174 Ariz. 518, 520, 851 P.2d 143, 145 (App.1992).

Oliver asserts that his statements fall under the judicial privilege. He analogizes his hotline complaint to a complaint being filed or an informant giving information to a government investigative body that launches an official investigation. In support, he cites: Bailey v. Superior Ct., 130 Ariz. 366, 636 P.2d 144 (App.1981) (complaint made to...