Twelker v. Shannon & Wilson, Inc.

• Decision Date: 21 April 1977
• Docket Number: No. 44588,44588
• Citation: 564 P.2d 1131,88 Wn.2d 473
• Court: Washington Supreme Court
• Parties: Neil H. TWELKER, Appellant, v. SHANNON & WILSON, INC., a corporation, and L. Keith Bestwick and Jane Doe Bestwick, his wife, Respondents.

Page 473

88 Wn.2d 473

564 P.2d 1131

Neil H. TWELKER, Appellant, v. SHANNON & WILSON, INC., a corporation, and L. Keith Bestwick and Jane Doe Bestwick, his wife, Respondents.

No. 44588.

Supreme Court of Washington, En Banc.

April 21, 1977.

Inslee, Best, Chapin & Doezie, P.S., Evan E. Inslee, Michael M. Fleming, Bellevue, for appellant.

Lane, Posell, Moss, Miller, Robert W. Thomas, Seattle, for respondents.

UTTER, Associate Justice.

Neil H. Twelker, appellant, brought suit against L. Keith Bestwick and his employer, Shannon & Wilson, Inc. respondents herein, alleging defamation of his professional reputation. Respondents moved for a summary judgment of dismissal which was granted by the trial court. The issue presented on appeal is whether the defense of either absolute or qualified privilege has been established by respondents as a matter of law. We hold neither defense has been established and reverse the judgment of dismissal.

Appellant is a soils engineer and sole proprietor of Neil Twelker & Associates, a firm involved in soils investigation and consultation for engineering projects. L. Keith Bestwick is also a soils engineer and his employer, Shannon & Wilson, Inc. is a competitor in the soils engineering field. Appellant claims he was defamed by virtue of the publication of a letter from respondents directed to United Pacific Insurance Company. The letter (See Appendix) was directed to the cause of a landslide which had taken place in 1973 and which damaged a building completed two nonths earlier. United Pacific insured the general contractor in charge of the construction of that building and appellant prepared the soils report for the project. Apparently concerned with the possible exposure to liability of its insured, United Pacific retained the respondent to investigate the slide and issue a statement of its findings with regard to its cause. A 3-page report prepared pursuant to that request and forwarded to the insurance company contains the statements here alleged to have defamed appellant. The only persons who saw the report until it was turned over to other counsel after appellant was joined in the lawsuit against the contractor, were the insurer's claims personnel Respondent Bestwick prepared his letter following two inspections of the landslide site and a review of various documents, including the appellant's soil report, which were pertinent to the construction project. Appellant contends the letter contains several specific false statements regarding the contents of the original soil report, and that those statements concerning the report were made with knowledge of or reckless disregard for their falsity. For purposes of its motion for summary judgment, respondent has admitted the challenged statements were in fact false, but contends that he had either a qualified or absolute privilege to make such false statements, which privilege was not abused. Appellant asserts the affidavits and depositions made a part of the record raise factual issues as to abuse of privilege sufficient to withstand a motion for summary judgment.

and an attorney retained to represent that company's insured, the general contractor.

The defense of absolute privilege applies to statements made in the course of judicial proceedings and avoids all liability. Gold Seal Chinchillas, Inc. v. State, 69 Wash.2d 828, 830, 420 P.2d 698 (1966). 'A witness is absolutely privileged to publish false and defamatory matter of another in communications preliminary to a proposed judicial proceeding and as a part of a judicial proceeding in which he is testifying, if it has some relation thereto.' Restatement of Torts, § 588 at 233 (1938). Comment a to that section of the Restatement sets forth the reasons behind the rule:

The function of witnesses if of fundamental importance in the administration of justice. The final judgment of the tribunal must be based upon the facts as shown by their testimony, and it is necessary therefore that a full disclosure be not hampered by fear of private suits for defamation. The compulsory attendance of all witnesses in judicial proceedings makes the protection thus accorded the more necessary. The witness is subject to The doctrine of privileged communication is founded on public policy considerations. The prime consideration justifying the application of the defense of absolute privilege to certain occasions is the need of free speech to prevail over the right to preserve one's reputation. Absolute privilege is usually confined to cases in which the public service and administration of justice require complete immunity. Legislatures in debate, judges and attorneys in preparation or trial of cases and executive or military personnel, when within the duties of their offices, are frequently cited examples. In such situations the utterances or publications of such individuals, even though false or malicious, are protected. Gold Seal Chinchillas, Inc. v. State, supra; Mills v. Denny, 245 Iowa 584, 63 N.W.2d 222 (1954). The promotion of public welfare by allowing prospective witnesses to discuss their views of a potential lawsuit without fear of suit for defamation is argued here as the basis for extending the doctrine of absolute privilege so as to encompass the situation before us.

the control of the trial judge in the exercise of the privilege. For abuse of it, he may be subject to criminal prosecution for perjury and to punishment for contempt.

The reason, however, for granting absolute immunity is not free speech or public welfare alone. In addition, the scope of absolute privilege has traditionally been limited to situations in which authorities have the power to discipline as well as strike from the record statements which exceed the bounds of permissible conduct.

Absolute immunity, it seems, should be confined to cases where there is supervision and control by other authorities, such as courts of justice, where proceedings are under the able and controlling influence of a learned judge, who may reprimand, fine and punish as well as expunge from records statements of those who exceed proper bounds, and who may themselves be disciplined when necessary. The same is true in federal and state legislatures, and their committees, where the decorum is under the watchful eye of presiding officers, and records may be stricken and the offending member Mills v. Denny, supra at 588, 63 N.W.2d at 225.

punished. . . . Underlying the doctrine of absolute immunity is the concept of an alternate if not adequate remedy. . . . (A)bsolute immunity in defamation matters presents a conflict between two American principles equally regarded in the law, i.e., the right of an individual on one hand to enjoy his reputation unimpaired by defamation attacks, and on the other hand the necessity in the public interest of a free and full disclosure of facts in the conduct of the Legislative, Executive and Judicial Departments of Government. 9 Columbia Law Review 463, 471.

In Kenny v. Cleary, 47 A.D.2d 531, 363 N.Y.S.2d 606 (1975), the defense of absolute privilege was raised as to several allegedly defamatory statements made prior to and during the course of a judicial proceeding. The court refused to grant an absolute privilege to statements made before the commencement of judicial proceedings but did allow the defense of qualified privilege was to certain statements, one of which was made by a client to his attorney and the others made by an attorney for a stockholder to other stockholders in the same company.

In Middlesex Concrete Prods. v. Carteret Indus. Ass'n, 68 N.J.Super. 85, 91, 172 A.2d 22, 25 (1961), the defendant claimed the defense of absolute privilege to defamatory statements made by him as a consultant to clients who requested an opinion from him in a matter in which a lawsuit had already been filed. The court allowed the claim of absolute privilege and noted that 'statements made in judicial or Quasi-judicial proceedings and having some relation thereto are absolutely privileged against a suit for defamation.' The court concluded that, at page 92, 172 A.2d at page 25:

(W)hat was done by Streander and his employees was related to the suit. The investigation, report, consultations, aid and advice were pertinent and relevant to the litigation as preliminary steps in the defense of the case and a part of the preparation for the actual trial. As such, they are part of a judicial proceeding and within the privilege or immunity stated.

If this were not so, every expert who acts as a consultant for a client with reference to proposed or actual litigation, and thereafter appears as an expert witness, would be liable to suit at the hands of his client's adversary on the theory that while the expert's testimony was privileged, his preliminary conferences with and reports to his client were not, and could form the basis of a suit for tortious interference.

The extraordinary breadth of absolute privilege seems to us to require some compelling public policy justification for its existence. Where a lawsuit has been filed, the court in Middlesex found the need for uninhibited preliminary conferences and reports sufficient to establish such a justification. Respondent has cited no case where absolute privilege has been extended to statements made prior to the initiation of a lawsuit nor has he presented public policy arguments of such a compelling nature as to justify such an extension. In the absence of such arguments we decline to apply the absolute privilege accorded statements made in the course of or preliminary to judicial proceedings to the circumstances of this case.

The defense of qualified privilege has been the subject to extensive comment by this court.

On certain occasions one is qualifiedly or conditionally privileged to public false and defamatory matter of another and is not liable therefor, provided such privilege is not abused. Facts contained in such communication need not be true, if ...