Sawabini v. Desenberg

• Citation: 372 N.W.2d 559,143 Mich.App. 373
• Decision Date: 29 August 1985
• Docket Number: Docket No. 75645
• Parties: , 60 A.L.R.4th 37 George T. SAWABINI, D.O., Plaintiff-Appellee, v. Jon P. DESENBERG And Moll, Desenberg, Bayer & Behrendt, Jointly and Severally, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 559

372 N.W.2d 559

143 Mich.App. 373, 60 A.L.R.4th 37

George T. SAWABINI, D.O., Plaintiff-Appellee, v. Jon P. DESENBERG And Moll, Desenberg, Bayer & Behrendt Jointly and Severally, Defendants-Appellants.

Docket No. 75645.

Court of Appeals of Michigan.

Submitted Feb. 13, 1985.

Decided June 3, 1985.

Released for Publication Aug. 29, 1985.

Donald J. Morbach & Associates, P.C. (by Christopher E. Pencak), Detroit, for plaintiff-appellee.

Collins, Einhorn & Farrell, P.C. (by Brian Einhorn and Noreen L. Slank), Southfield, for defendants-appellants.

Before V.J. BRENNAN, P.J., and CYNAR and J.W. FITZGERALD, ^* JJ.

V.J. BRENNAN, Presiding Judge.

Defendants, Jon P. Desenberg and the law firm of Moll, Desenberg, Bayer & Behrendt, appeal by leave granted on April 23, 1984, from a July 21, 1983, Wayne County Circuit Court order which denied defendants' motion for summary judgment as to count I of plaintiff's complaint. GCR 1963, 117.2(1); MCR 2.116(C)(8).

Plaintiff cross-appeals by leave granted on January 25, 1983, from an October 31, 1983, Wayne County Circuit Court order which granted defendants' motion for summary judgment as to count II of plaintiff's complaint. See above cited court rule.

Defendant Jon Desenberg and defendant law firm were retained by plaintiff's medical malpractice insurance carrier to represent plaintiff in a medical malpractice action filed in the Wayne County Circuit Court on or about June 25, 1982, by the Estate of Ophelia Williams. Nine physicians, including plaintiff, three pharmacies and a medical professional corporation were named as defendants in that action.

Defendant Jon Desenberg also represented Dr. Joel Friedland in a separate suit instituted by the Estate of Nedra Ruff. Plaintiff and Dr. Friedland were insured by the same medical malpractice carrier. Ms. Ruff's death followed a pattern of drug abuse similar to the pattern followed by Ms. Williams before her death. The problems of Ms. Ruff and Ms. Williams were featured in a Detroit News series. In the course of defendant Desenberg's representation of plaintiff and Friedland, defendant secured a copy of the testimony of Dr. Forrest S. Tennant, Jr., who had testified for the defense in the criminal action against the physician who had treated Elvis Presley (State of Tennessee v. George C. Nichopoulas ). Dr. Tennant testified that it was proper for a physician to maintain a known drug abuser on limited quantities of drugs.

On or about December 28, 1982, a letter ¹ which forms the basis of plaintiff's suit was forwarded to a claims adjuster for plaintiff's malpractice carrier. Copies of the letter were sent to the nine defense attorneys in the Ophelia Williams case. The attorneys were not members or associates of defendant law firm. Copies were also sent to plaintiff and to Dr. Friedland, who was not a party to the Ophelia Williams case.

On plaintiff's behalf, plaintiff's personal counsel sent a "retraction" letter to defendant Desenberg on or about January 7, 1983, in which, inter alia, a retraction and retrieval of the copies of Desenberg's letter were demanded within four days. Also demanded was Desenberg's withdrawal from the case. Defendant Desenberg withdrew from the case but did not retract his letter.

The medical malpractice insurance carrier assigned alternate counsel to defend plaintiff. On January 14, 1983, plaintiff filed the instant suit against defendant Desenberg and defendant law firm.

In count I of his complaint, plaintiff alleged that defendant Desenberg's conduct of his defense of plaintiff and publication of the letter created causes of action against defendants in libel, slander, defamation of character, invasion of privacy, intentional or negligent infliction of emotional distress and commercial disparagement. Plaintiff alleged that defendants "did prepare, disseminate, distribute and publish in a letter * * * false and defamatory statements and innuendos intended to mean that the plaintiff was guilty of professional medical malpractice, impropriety and/or criminal behavior which recipients of said letter understood them to have this meaning." On or about April 12, 1983, defendants filed a motion for summary judgment.

After oral argument on April 29, 1983, the trial court denied defendants' motion for summary judgment without prejudice. An order denying defendants' motion for summary judgment was entered on July 21, 1983.

On or about May 10, 1983, plaintiff filed a motion to amend his complaint to state a legal malpractice claim. After a hearing held in June, 1983, by order dated July 15, 1983, the trial court granted plaintiff's motion to amend. Plaintiff alleged that defendant Desenberg's act of preparing the letter and circulating it to codefendant's counsel, to the insurance carrier, and to Dr. Friedland violated numerous "ethical standards of care". Plaintiff also alleged inter alia that defendants mishandled the defense investigation in the underlying malpractice action.

On or about July 29, 1983, defendants filed a motion for partial summary judgment as to count II of plaintiff's complaint. After a hearing held on October 17, 1983, defendants' motion was granted by order entered October 24, 1983.

Defendants first argue that the trial court erred in denying them summary judgment on count I of plaintiff's complaint.

Plaintiff's complaint alleges that he was defamed by the letter ² which defendant wrote to plaintiff's medical malpractice insurer with copies sent to other attorneys representing defendant's codefendants in the medical malpractice action and another doctor whom defendant was representing in a similar case.

The elements of a cause of action for defamation are: "(a) a false and defamatory statement concerning plaintiff; (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 (defamation per se) or the existence of special harm caused by the publication (defamation per quod )." Postill v. Booth Newspapers, Inc., 118 Mich.App. 608, 618, 325 N.W.2d 511 (1982), lv. den. 417 Mich. 1050 (1983), citing Restatement Torts, 2d, Sec. 558; Curtis v. Evening News Association, 135 Mich.App. 101, 103, 352 N.W.2d 355 (1984); Ledl v. Quik Pik Food Stores, Inc., 133 Mich.App. 583, 349 N.W.2d 529 (1984).

The court may determine, as a matter of law, whether the words in question, alleged by plaintiff to be defamatory, are capable of defamatory meaning. See, e.g. Ledsinger v. Burmeister, 114 Mich.App. 12, 21, 318 N.W.2d 558 (1982). Where the words are, as a matter of law, not capable of carrying a defamatory meaning, summary judgment under GCR 1963, 117.2(1) is appropriate. See Lins v. Evening News Association, 129 Mich.App. 419, 422, 342 N.W.2d 573 (1983).

"A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Nuyen v Slater, 372 Mich 654, 662, fn; 127 NW2d 369 (1964); Ledsinger v Burmeister, 114 Mich App 12, 21; 318 NW2d 558 (1982)." Swenson-Davis v. Martel, 135 Mich.App. 632, 635-636, 354 N.W.2d 288 (1984), lv. den. 419 Mich. 946 (1984). In assessing whether language is defamatory, the circumstances should be considered. Ledsinger v. Burmeister, supra.

Under the circumstances here, in our opinion, defendant's letter could not reasonably be perceived as carrying a defamatory meaning. The attorney's letter was directed to plaintiff's malpractice insurer (with copies to codefendants' attorneys and another doctor insured by the same malpractice insurer and represented by defendant in a similar case). Reading the letter as a whole, it clearly was designed to communicate a novel defense theory being explored which might have application in the case. The letter, examined in light of the circumstances in which it was written, was not intended to, nor does it, reflect on plaintiff's reputation. Given the limited audience for the letter and the tone of and purpose for the letter, we do not believe it could reasonably have been perceived as defamatory. Thus, in our opinion, the lower court should have granted summary judgment to defendants on plaintiff's defamation, libel, and slander claims.

We also find that plaintiff's complaint failed to state a viable cause of action for either invasion of privacy or intentional infliction of emotional distress. In his complaint, plaintiff alleged that the defamatory letter written by defendant Desenberg "put plaintiff in a false light by publishing and disseminating certain false, and incorrect statements and innuendos regarding plaintiff's professional and personal conduct".

False light invasion of privacy is described in Ledl v. Quik Pik Stores, supra, as:

" '[p]ublicity which places plaintiff in a false light in the public eye'. Beaumont v Brown, 401 Mich 80, 95, fn 10; 257 NW2d 522 (1977). In discussing what was necessary to state a cause of action for invasion of privacy, this Court stated in Reed v Ponton, 15 Mich App 423, 426; 166 NW2d 629 (1968):

" 'When there has been no misappropriated use of, or physical intrusion into, the private life, employment, property, name, likeness, or other personal place or interest, so that the privacy action is premised solely upon a disclosure of secret or confidential matter or upon being put publicly in a "false light", then if (without deciding) mere words of mouth can never be actionable (except by a slander action) the oral communication must be broadcast to the public in general or publicized to a large number of people.' " 133 Mich.App. at 591-592, 349 N.W.2d 529.

Plaintiff alleged neither that the defendant's opinion on a possible defense was broadcast to the public in general or to a large number of people nor that the plaintiff was given unreasonable and highly objectionable publicity that attributed to him...