Tronfeld v. Nationwide Mut. Ins. Co.

• Citation: 636 S.E.2d 447
• Decision Date: 03 November 2006
• Docket Number: Record No. 052635.
• Parties: Jay TRONFELD v. NATIONWIDE MUTUAL INSURANCE COMPANY, et al.
• Court: Supreme Court of Virginia

636 S.E.2d 447

Jay TRONFELD v. NATIONWIDE MUTUAL INSURANCE COMPANY, et al.

Record No. 052635.

Supreme Court of Virginia.

November 3, 2006.

David P. Baugh, Richmond, for appellant.

James G. Muncie, Jr. (James C. Shannon, Midkiff, Muncie & Ross, on brief), Richmond, for appellees.

Present: HASSELL, C.J., LACY, KEENAN, KINSER, LEMONS, and AGEE, JJ., and STEPHENSON, S.J.

OPINION BY Justice G. STEVEN AGEE.

Jay Tronfeld appeals from the judgment of the Circuit Court of the City of Petersburg sustaining a demurrer on behalf of the defendants, Nationwide Mutual Insurance Company ("Nationwide") and Todd Schmitt (collectively, the "Defendants"). On appeal, Tronfeld asserts the trial court erred in finding that the alleged statements were opinion and thus not actionable under Virginia law as defamation per se. For the reasons set forth below, we will reverse the judgment of the trial court.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Nationwide employed Schmitt as an insurance adjuster. In February 2005, Schmitt, acting within the scope of his employment with Nationwide, met with Donald Spellman to discuss an injury that Spellman sustained from an accident with an insured of Nationwide. During this meeting, Schmitt and Spellman discussed settlement of the personal injury claim and whether the settlement could be completed without the intervention of an attorney.

During the meeting, they discussed the possible selection of an attorney to serve as counsel for Spellman in his claim against Nationwide. In response to Spellman selecting Tronfeld as his counsel, Schmitt made these statements ("Schmitt's statements"):

(1) That Jay Tronfeld just takes peoples' money.

(2) That clients of Jay Tronfeld would receive more money [for their claims] if they had not hired Jay and had dealt with the adjuster [directly].¹

At the time of the alleged statements, Tronfeld actively engaged in the practice of law and operated the law firm Jay Tronfeld & Associates. Tronfeld's law practice primarily involved the representation of private individuals in personal injury matters, and his firm used extensive marketing through print, radio and television to attract clients.

Tronfeld filed an amended motion for judgment in the Circuit Court of the City of Petersburg, alleging that the statements made by Schmitt were defamation per se because the statements impute "Tronfeld as unfit to perform the duties of his employment" and that he "lacks integrity and is dishonest in performing the duties of his employment." As a consequence, Tronfeld alleges he was prejudiced "in his work and chosen profession" as an attorney. The Defendants filed a demurrer, contending Schmitt's statements were expressions of opinion and therefore could not be the basis for a cause of action for defamation.

In a hearing on the demurrer, the trial court ruled from the bench that Schmitt's statements were "expressions of opinion" and that the demurrer should be sustained. On November 15, 2005, the trial court entered a final order sustaining the demurrer. We awarded Tronfeld this appeal.

II. ANALYSIS

The purpose of a demurrer is to determine whether a motion for judgment states a cause of action upon which the requested relief may be granted. Welding, Inc. v. Bland County Service Authority, 261 Va. 218, 226, 541 S.E.2d 909, 913 (2001). "A demurrer admits the truth of all properly pleaded material facts. `All reasonable factual inferences fairly and justly drawn from the facts alleged must be considered in aid of the pleading.'" Ward's Equipment, Inc. v. New Holland N. America, Inc., 254 Va. 379, 382, 493 S.E.2d 516, 518 (1997) (quoting Fox v. Custis, 236 Va. 69, 71, 372 S.E.2d 373, 374 (1988)).

A demurrer does not admit the correctness of the conclusions of law found in the challenged pleading. Ward's Equipment, Inc., 254 Va. at 382, 493 S.E.2d at 518. On appeal, a plaintiff attacking a trial court's judgment sustaining a demurrer need show only that the court erred, not that the plaintiff would have prevailed on the merits of the case. Thompson v. Skate America, Inc., 261 Va. 121, 128, 540 S.E.2d 123, 127 (2001).

Historically, a cause of action for defamation has been viewed as the means to protect a basic right because "the individual's right to personal security includes his uninterrupted entitlement to enjoyment of his reputation." Jordan v. Kollman, 269 Va. 569, 575, 612 S.E.2d 203, 206 (2005) (quoting The Gazette, Inc. v. Harris, 229 Va. 1, 7, 325 S.E.2d 713, 720 (1985)). At common law, defamatory words that are actionable per se are:

(1) Those which impute to a person the commission of some criminal offense involving moral turpitude, for which the party if the charge is true, may be indicted and punished.

(2) Those which impute that a person is infected with some contagious disease, where if the charge is true, it would exclude the party from society.

(3) Those which impute to a person unfitness to perform the duties of an office or employment of profit, or want of integrity in the discharge of the duties of such an office or employment.

(4) Those which prejudice such person in his or her profession or trade.

Fleming v. Moore, 221 Va. 884, 889, 275 S.E.2d 632, 635 (1981); see also Great Coastal Express, Inc. v. Ellington, 230 Va. 142, 146-47, 334 S.E.2d 846, 849 (1985) (setting out the common law standard for defamation per se); Shupe v. Rose's Stores, Inc., 213 Va. 374, 376, 192 S.E.2d 766, 767 (1972) (identifying words at common law which are actionable per se). A person maligned by defamation per se may recover compensatory damages for injury to reputation, humiliation, and embarrassment without demonstrating any financial loss. Great Coastal Express, 230 Va. at 151, 334 S.E.2d at 852.

Unless Schmitt's statements are opinion, they are sufficient to sustain a cause of action for defamation per se because the statements prejudice Tronfeld in his profession as an attorney at law. To state that an attorney "just takes people's money" and that an attorney's clients receive less for their claims because of the attorney's services implies a combination of dishonesty, incompetence or the crimes of larceny by trick or obtaining money by false pretenses. See, e.g., Code § 18.2-178. As such, Schmitt's statements "impute to [Tronfeld] the commission of some criminal offense involving moral turpitude," and "impute to [Tronfeld] unfitness to perform the duties of . . . employment . . . or want of integrity in the discharge of the duties of such . . . employment." Fleming, 221 Va. at 889, 275 S.E.2d at 635. Such statements damage an attorney's standing to engage in his or her chosen profession and carry the connotation that he or she lacks the integrity and fitness to practice law. The dispositive issue is thus whether Schmitt's statements are opinion or contain a provably false connotation.

Speech that does not contain a provably false factual connotation, or statements which cannot reasonably be interpreted as stating actual facts about a person, are not actionable. Yeagle v. Collegiate Times, 255 Va. 293, 295, 497 S.E.2d 136, 137 (1998); see also Milkovich v. Lorain Journal Co., 497 U.S. 1, 16-17, 20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). Statements that are relative in nature and depend largely upon the speaker's viewpoint are expressions of opinion. Jordan, 269 Va. at 576, 612 S.E.2d at 206; see also Chaves v. Johnson, 230 Va. 112, 119, 335 S.E.2d 97, 101 (1985). Whether an alleged defamatory statement is one of fact or opinion is a question of law and is, therefore, properly decided by the court instead of a jury. Fuste v. Riverside Healthcare Ass'n, 265 Va. 127, 132-33, 575 S.E.2d 858, 861 (2003). Although a defamatory statement may be inferred, a court may not "extend the meaning of the words used beyond their ordinary and common acceptance." Perk v. Vector Resources Group, 253 Va. 310, 316, 485 S.E.2d 140, 144 (1997).

On appeal, Tronfeld asserts that the trial court erred in finding that Schmitt's statements were merely opinions and therefore not actionable as defamation per se. Tronfeld contends the statements are not opinion because evidence could be presented at trial that Tronfeld is competent in his profession, that claimants did receive more money after hiring Tronfeld as opposed to what the insurance company offered, and that Tronfeld's clients receive a measurable value for his services in return for the fee he receives. Collectively or separately, Tronfeld argues Schmitt's statements are provably false.

Citing our decisions in Chaves and Fuste, the Defendants respond that the trial court correctly found the alleged statements to be expressions of opinion and thus not actionable. They argue that Schmitt's comments cannot be proven true or false and depended on Schmitt's personal viewpoint for meaning. We agree with Tronfeld.

In Chaves, an architect brought a defamation claim in response to statements in a letter written by a competitor that the...