Sky Fun 1, Inc. v. Schuttloffel, 98CA1209.

• Decision Date: 16 March 2000
• Docket Number: No. 98CA1209.,98CA1209.
• Parties: SKY FUN 1, INC., a Colorado corporation, Plaintiff-Appellant, v. John SCHUTTLOFFEL, Defendant-Appellee.
• Court: Colorado Court of Appeals

8 P.3d 570

SKY FUN 1, INC., a Colorado corporation, Plaintiff-Appellant, v. John SCHUTTLOFFEL, Defendant-Appellee.

No. 98CA1209.

Colorado Court of Appeals, Div. II.

March 16, 2000.

Certiorari Granted September 5, 2000.

Peter Schild, Boulder, Colorado, for Plaintiff-Appellant.

Dixon and Snow, P.C., Jerre W. Dixon, Denver, Colorado, for Defendant-Appellee.

Opinion by Judge MARQUEZ.

Plaintiff, Sky Fun 1, Inc. (Sky Fun), appeals the judgment entered in favor of defendant, John Schuttloffel, finding it liable on his counterclaim for defamation. We affirm.

Sky Fun is a Colorado corporation, and William Kitchen (Kitchen) is its president and chief executive officer. Defendant, while employed by Sky Fun as the corporation's pilot, was piloting an airplane with Kitchen aboard when the airplane was struck by lightning. Following this incident, Kitchen informed defendant that Sky Fun was discontinuing his employment.

Defendant then sought employment with another airline (airline). When the airline sought information regarding defendant from Sky Fun, Kitchen provided negative information during telephone conversations with an airline employee.

Sky Fun filed a complaint against defendant for property damage and other financial losses, including lost use of its aircraft allegedly caused by defendant's negligence. In his answer, defendant denied Sky Fun's allegations and counterclaimed alleging, among other things, that plaintiff through its president, had defamed him and that he was entitled to actual and exemplary damages.

After a bench trial, the trial court found for defendant on his defamation claim and awarded him $1.00 in actual damages on that claim and $5,000 in exemplary damages.

I.

Sky Fun contends that the trial court erred by determining that the alleged defamatory telephone calls to the airline by Kitchen were not protected under the Pilot Records Improvement Act 49 U.S.C. § 44936(g)(Supp. III 1997) (the Act). We disagree.

As an initial matter, neither party has presented authorities interpreting the Act, nor has our research disclosed any.

In interpreting statutes, we begin with the relevant language. If congressional will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive. We do not, however, read specific statutory language in isolation. Rather, we must look to the particular statutory language at issue, as well as the language and design of the statute as a whole. Leonhardt v. Western Sugar Co., 160 F.3d 631 (10th Cir.1998); cf. Thurman v. Tafoya, 895 P.2d 1050 (Colo.1995).

A.

In pertinent part, 49 U.S.C. § 44936(f)(1)(Supp. III 1997), provides that, before allowing an individual to begin service as a pilot, an employer must "request and receive the following information ... (A) FAA Records ... (B) Air carrier and other records ... (C) National driver register records." Included within "Air carrier and other records" are "records pertaining to the individual that are maintained by the air carrier or person" concerning: "training, qualifications, proficiency, or professional competence of the individual"; "any disciplinary action taken with respect to the individual that was not subsequently overturned"; and "any release from employment or resignation, termination, or disqualification with respect to employment." 49 U.S.C. § 44936(f)(1)(B)(ii)(Supp. III 1997).

An air carrier making a request for records under 49 U.S.C. § 44936(f)(1) must obtain written consent to the release of those records from the individual that is the subject of the records requested. See 49 U.S.C. § 44936(f)(2)(Supp. III 1997).

In relevant part, 49 U.S.C. § 44936(g)(1)(Supp. III 1997) provides that:

No action or proceedings may be brought by or on behalf of an individual who has applied for or is seeking a position with an air carrier as a pilot and who has signed a release from liability, as provided under paragraph (2), against

....

(B) a person who has complied with such a request;

....

in the nature of an action for defamation... with respect to the furnishing or use of such records in accordance with subsection (f).

49 U.S.C. § 44936(g)(3)(Supp. III 1997) provides that:

Paragraphs (1) ... shall not apply with respect to a person who furnishes information in response to a request made under (f)(1), that

(A) the person knows is false; and

(B) was maintained in violation of a criminal statute of the United States.

Here, in the course of applying for a pilot position with the airline, defendant signed a form containing a request/consent for information from a prior employer together with a release from liability, which was sent to Sky Fun. Kitchen filled out the reply form and returned it to the airline.

On the reply form, in response to questions asking if Sky Fun had any record entered within the past five years showing that the defendant was removed from flying status for any performance or professional competency reason and whether Sky Fun had any records entered within the past five years showing that the defendant was the subject of any disciplinary action that was not subsequently overturned, Kitchen marked "yes" and wrote "Call Me!" but did not submit any records.

After receiving the reply form, the pilot training coordinator and crew coordinator (coordinator) of the airline called Kitchen and requested that he forward the relevant documentation. The coordinator testified that Kitchen informed her that Sky Fun did not keep any files, records, or paperwork on defendant. During that conversation and others that followed, Kitchen stated that defendant "wasn't a good pilot," that he "was great in the simulator but he was just not a good pilot," that the airline should not hire him, that he would be a "threat to passengers," that he had numerous safety violations, and that he should not be flying a plane. In response, the coordinator informed Kitchen that she had to have something in writing.

The coordinator later received numerous calls and a facsimile from Sky Fun entitled "Termination Report" stating that defendant was terminated due to his insufficient and dangerous performance on three occasions. In spite of Kitchen's calls, the airline hired defendant.

Following the presentation of evidence, the trial court found that the Termination Report contained materials that fell within the Act, but that the oral statements made by Kitchen did not. It also questioned whether defendant was responsible for the three incidents set forth in the Termination Report.

B.

Sky Fun contends that the telephone calls specifically relating to information requested under the Act deserve similar protection given to records and, therefore, should be immunized from defamation lawsuits. We disagree.

In our view, 49 U.S.C. § 44936(g)(1) covers only records maintained by the air carrier. 49 U.S.C. § 44936(f), which is entitled "Records of employment of pilot applicants," identifies in detail the specific information that must be requested and received before an individual can begin service as a pilot. The information requested lists only records. Here, by contrast, the statements at issue are Kitchen's oral statements.

Consequently, we conclude that the trial court properly found that Kitchen's oral statements do not fall within the purview of the Act.

II.

Sky Fun next contends that the trial court erred by determining that Kitchen made defamatory telephone calls to the airline which entitled defendant to $1.00 in compensatory damages. We disagree.

A.

To establish a claim for slander per se, plaintiff must prove: 1) an oral statement was made by defendant; 2) it was published to a third party; 3) the statement is defamatory of the victim's trade, business, or profession; and 4) no extrinsic evidence is required to show that the statement defames the victim in his or her trade or business practice. Pittman v. Larson Distributing Co., 724 P.2d 1379 (Colo.App.1986).

Whether a statement is to be considered slander per se is a question of law. Keohane v. Wilkerson, 859 P.2d 291 (Colo. App.1993); aff'd sub. nom, Keohane v. Stewart, 882 P.2d 1293 (1994).

A statement is defamatory if it tends to so harm the reputation of another as to lower him or her in the estimation of the community or to deter third persons from associating or dealing with that person. Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351 (Colo.1983); Arrington v. Palmer, 971 P.2d 669 (Colo.App.1998).

Here, the statements at issue were made orally and were published to a third party, the airline. Additionally, because the statements tend to so harm defendant's reputation as to lower him in the estimation of the airline community, they are defamatory of the defendant's profession. See Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988)(statement that employee was "dishonest" was defamatory); Pittman v. Larson Distributing Co., supra (statement that employee "wasn't doing as good a job" was defamatory).

Thus, the court did not err in determining that Kitchen made defamatory calls to the airline.

B.

Sky Fun, however, contends that statements of an employer as to the character of an employee are protected and subject to a qualified privilege. We disagree.

Colorado law recognizes a qualified privilege for communications by a party with a legitimate interest to persons having a corresponding interest and communications promoting legitimate individual, group, or public interest. Burke v. Greene, 963 P.2d 1119 (Colo.App.1998).

However, the common interest privilege is not absolute. The person to whom such an inquiry is addressed cannot abuse the privilege in answering it and it will be lost if the publisher is actuated by express malice. Pittman v. Larson, supra.

Here, as discussed more fully below, the trial court found that the statements were made with malice. Thus, even if a qualified privilege applies, the privilege was lost.

C.

Sky Fun also maintains that Kitchen was entitled to express his...