Veilleux v. National Broadcasting Co., Inc.

• Decision Date: 29 May 1998
• Docket Number: No. Civ. 97-CV-9-B.,Civ. 97-CV-9-B.
• Citation: 8 F.Supp.2d 23
• Parties: Raymond VEILLEUX, et al., Plaintiffs, v. NATIONAL BROADCASTING COMPANY, INC., et al., Defendants.
• Court: U.S. District Court — District of Maine

8 F.Supp.2d 23

Raymond VEILLEUX, et al., Plaintiffs, v. NATIONAL BROADCASTING COMPANY, INC., et al., Defendants.

No. Civ. 97-CV-9-B.

United States District Court, D. Maine.

May 29, 1998.

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William D. Robitzek, Berman & Simmons, P.A., Lewiston, ME, for Plaintiffs.

Susan E. Weiner, National Broadcasting Co. Inc., New York City, Bernard J. Kubetz, Eaton, Peabody, Bradford & Veague, Bangor, ME, for Defendants.

ORDER AND MEMORANDUM OF DECISION

BRODY, District Judge.

Plaintiffs, Raymond Veilleux, Kathy Veilleux, and Peter Kennedy bring this diversity action against Defendants, National Broadcasting Company, Inc. ("NBC"), Alan Handel, and Fred Francis, alleging negligent misrepresentation (Count I), fraudulent misrepresentation (Count II), defamation (Count III), invasion of privacy (Counts IV and V), negligent and intentional infliction of emotional distress (Counts VI and VII), loss of consortium (Count VIII), and punitive damages (Count IX). These claims arise from Defendants' broadcast of a two-part television news program on the trucking industry in 1995. Defendants have filed a Motion for Summary Judgment on all counts of Plaintiffs' Amended Complaint. For the reasons stated below, Defendants' motion is GRANTED in part and DENIED in part.

I. SUMMARY JUDGMENT

Summary judgment is appropriate in the absence of a genuine issue as to any material fact and when the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). An issue is genuine for these purposes if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact is one that has "the potential to affect the outcome of the suit under applicable law." Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993). For the purposes of summary judgment the Court views the record in the light most favorable to the nonmoving party. See McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995).

II. BACKGROUND

The following are the facts viewed in a light most favorable to Plaintiffs. On April 19 and 26, 1995, Dateline NBC ("Dateline"), an hour-long news magazine program produced by NBC News, broadcast two reports concerning the long-distance trucking industry entitled "Keep on Truckin"' and "On the Road Again" (hereinafter collectively referred to as the "program" or the "report"). The program focused on the pressures confronting long-haul truckers, the causes and consequences of driver fatigue, and violations of federal "hours of service" regulations that govern the industry. The program prominently featured Plaintiff Peter Kennedy, a long-distance truck driver who, with his employer Plaintiff Raymond Veilleux, agreed to allow a Dateline crew to accompany and film Kennedy on a coast-to-coast run from California to Maine in September and October, 1994.

The idea for the Dateline program arose out of a tragic highway accident that occurred in Maine in October, 1993, in which four teenagers were killed when their car was struck by a truck driven by Robert Hornbarger, who later pleaded guilty to falsifying his log entries of driving hours. Defendant Alan Handel, a freelance producer, learned of the Hornbarger accident and of the related issue of long-distance trucker fatigue and called Susan Farkas, a senior producer for Dateline, to suggest a possible story on the issue. Dateline liked the idea, commissioned Handel to produce the piece, and assigned a Dateline associate producer, Tracey Vail, to assist Handel. The project was underway in August, 1994, when a Dateline film crew traveled to Maine to film truck inspections, shoot stills of the Izer family (one of the families of the teenagers killed in the Hornbarger accident), and cover the sentencing of Hornbarger.

In the course of developing the piece, Dateline sought a long-distance truck driver who would allow a Dateline crew to accompany him or her on a coast-to-coast run. The evidence suggests that Dateline had difficulty finding a driver who would cooperate. On September 20, 1994, Vail contacted Kennedy. Kennedy had been recommended as a trucker with a good record and reputation who might be willing to participate in a story that would improve the reputation of the industry. In an attempt to induce his cooperation, Vail described the program as one which would display the "positive side" of the trucking industry, despite the fact that Vail had previously pitched a similar story to Dateline which focused on the threats posed by long-distance truckers. In that conversation Kennedy expressed his desire to focus public attention on the problems caused for truckers by inflexible hours-of-service log-keeping requirements imposed by federal law. Kennedy inquired whether the proposed program would include Parents Against Tired Truckers ("PATT"), a parent advocacy group pushing for stronger trucking regulations, and Vail responded that it would not. Kennedy informed Vail that he might be interested, but that Dateline should talk with Veilleux before going any further. Kennedy then contacted Veilleux to tell him about the story. Kennedy told Veilleux that he was interested but that he had reservations about whether the program would in fact be a positive one as promised.

Soon thereafter, Handel contacted Kennedy and explained that Dateline wanted to display a positive image of the trucking industry to counter negative publicity generated by the Hornbarger accident and the activity of PATT. Handel explained that Kennedy would be doing a good thing for the industry by participating. Kennedy stated that he would not participate if PATT was going to be involved and Handel responded that PATT would have nothing to do with the program. Handel then contacted Veilleux to make similar assurances regarding the tone and content of the program. In subsequent conversations NBC agreed to several "ground rules" including the following: the program would depict the positive side of trucking, Kennedy would not run an illegal trip for the sake of the show, and PATT would have nothing to do with the program. NBC also agreed that Kennedy would not be asked to deviate from his typical driving routine. At one point Handel told Veilleux that Dateline wanted to show Kennedy falsifying his logbook and evading inspection stations, but Veilleux insisted that he would not agree to engage in such conduct for the sake of the program and threatened to terminate the discussions. Handel withdrew his request and agreed to do the program according to Veilleux's wishes.

After much cajoling by NBC, Kennedy and Veilleux agreed to participate. In late September, 1994, Kennedy met the NBC crew in Salinas, California, where he was scheduled to make pick-ups of produce for delivery to Chelsea, Massachusetts, on or about October 6, 1994. The NBC crew, including Dateline correspondent Fred Francis, accompanied Kennedy, in separate vehicles and in the cab, filming and interviewing him en route.

Although the Court need not recount the resulting program in depth, suffice it to say it did not portray a "positive" image of the trucking industry. The program, which concluded that "American highways are a trucker's killing field," included interviews with PATT representatives, and alleged that Kennedy repeatedly violated hours-of-service regulations, falsified his logbooks, and lied to federal inspectors. In addition, the program revealed that Kennedy had tested positive for marijuana and amphetamines in a random drug test. Stone Phillips, a Dateline anchor, accurately introduced the program by telling viewers "what you're about to hear won't make you feel any safer."

III. DISCUSSION

A. Misrepresentation Claims

In Counts I and II Plaintiffs allege that Defendants made false representations in order to induce Plaintiffs to participate in the Dateline program and that Plaintiffs relied on these false representations to their detriment. Plaintiffs allege negligent misrepresentation in Count I and fraudulent misrepresentation in Count II.

In defining the elements of negligent misrepresentation, the Maine Supreme Judicial Court has determined that:

One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary losses caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating information.

Chapman v. Rideout, 568 A.2d 829, 830 (Me. 1990) (quoting Restatement (Second) of Torts § 552(1) (1977)).

A claim of fraudulent misrepresentation arises where one:

(1) makes a false representation (2) of a material fact (3) with knowledge of its falsity or in reckless disregard of whether it is true or false (4) for the purpose of inducing another to act or to refrain from acting in reliance on it, and (5) the other person justifiably relies on the representation as true and acts upon it to the damage of the plaintiff.

McCarthy v. U.S.I. Corp., 678 A.2d 48, 53 (Me.1996).

In their Motion for Summary Judgment, Defendants first suggest that the duty of care imposed by Chapman and Restatement section 552(1) for negligent misrepresentation is limited to "buyers" and "sellers" and that they, therefore, were under no obligation to exercise reasonable care in communicating information. The scope of a negligent misrepresentation action is not so limited. See, e.g., Gayer v. Bath Iron Works Corp., 687 A.2d 617, 621 (Me.1996) (action available to employees); Devine v. Roche Biomedical Laboratories, Inc., 637 A.2d 441, 445 (Me.1994) (action available to parties to service contract). The duty of reasonable care in...