Willis v. United Family Life Ins.

• Decision Date: 13 May 1997
• Docket Number: No. A97A0255,A97A0255
• Parties: , 97 FCDR 1938 WILLIS v. UNITED FAMILY LIFE INSURANCE.
• Court: Georgia Court of Appeals

Page 376

487 S.E.2d 376

226 Ga.App. 661, 97 FCDR 1938

WILLIS v. UNITED FAMILY LIFE INSURANCE.

No. A97A0255.

Court of Appeals of Georgia.

May 13, 1997.

Reconsideration Denied June 4, 1997.

Certiorari Denied Jan. 5, 1998.

Adams & Jordan, Virgil L. Adams, Atlanta, for appellant.

Alston & Bird, Jay D. Bennett, Cynthia L. Counts, Atlanta, for appellee.

SMITH, Judge.

Appellant George Willis brought this action alleging defamation, tortious interference with contract, and intentional infliction of emotional distress following the distribution by appellee United Family Life Insurance ("United") of two letters to its policyholders. The trial court granted United's motion to dismiss; this appeal followed.

Willis's complaint alleges that United wrongfully sent two letters to its policyholders. The first letter states: "Based on our records, Ms. Freida White, an employee of United Family, may have been collecting premiums for you on your policy. You may have also paid your monthly premiums to a local funeral home. NO ONE FROM UNITED FAMILY WILL COME TO YOUR HOME TO COLLECT PREMIUMS ANY MORE AND YOU SHOULD NOT PAY ANY PREMIUMS TO A LOCAL FUNERAL HOME, MS. WHITE OR ANYONE ELSE. INSTEAD, PLEASE FORWARD ALL PAST DUE, CURRENT OR FUTURE

PREMIUM PAYMENTS TO UNITED FAMILY'S HOME OFFICE."

Although the letter does not specifically mention Willis or his business and does not state any reason for the change, Willis alleges that it was sent in response to the termination of White for misappropriation of premium payments. According to Willis, White "worked out of" Willis's funeral home, collecting premiums on behalf of United, until United opened a local office in 1989 and required that all premium payments be made there instead of to White or at Willis's business. The complaint alleges that White continued to collect premiums despite this change and appropriated them to her own use; her conduct was discovered in 1994 when several policies lapsed for nonpayment of premiums. According to Willis, the letters forming the subject of his complaint were mailed approximately one month after the discovery of White's misconduct.

Appellant asserts that his reputation was sullied by the reference to an unidentified "local funeral home" in a letter that also mentioned White. Although the letter identified White as an employee of United rather than of Willis, Willis asserts that his customers would assume that he or his funeral home could also be involved in White's improprieties.

The second letter, sent two days after the first, did not mention White. It informed United's customers that their insurance records were being moved from Willis's business to another facility and once more gave the new address for payment of premiums. Willis contends that, since the records had actually been moved earlier, the statement in the letter was false and therefore supports his claim against United under all three theories of recovery. We disagree and affirm the judgment of the trial court.

"When the sufficiency of the complaint is questioned by a motion to dismiss for failure to state a claim for which relief may be granted, the rules require that it be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible. Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed." (Citation and punctuation omitted.) Hartsfield v. Union City Chrysler-Plymouth, 218 Ga.App. 873, 874, 463 S.E.2d 713 (1995).

1. Willis appeals the dismissal of his defamation claim, contending that issues remain to be tried. The complaint here "is subject to the requirements of OCGA § 9-11-8(f) that pleadings be construed liberally and reasonably to achieve substantial justice consistent with the statutory requisites of the CPA. Nonetheless, when the claim alleged is a traditionally disfavored cause of action, such as malicious prosecution, libel, and slander, the courts tend to construe the complaint by a somewhat stricter standard." (Citations, punctuation and emphasis omitted.) Jacobs v. Shaw, 219 Ga.App. 425, 427(2), 465 S.E.2d 460 (1995). Applying this rule, we conclude that the face of Willis's complaint demonstrates that he can prove no set of facts amounting to defamation. The trial court therefore correctly held that the unambiguous statements in the letters are not capable of a defamatory interpretation.

(a) When an allegedly libelous statement is unambiguous, the trial court may decide as a matter of law whether or not the statement is libelous. Southern Co. v. Hamburg, 220 Ga.App. 834, 838, 470 S.E.2d 467 (1996). The court may not " 'hunt for a strained construction in order to hold the words used as being defamatory,' ... [cit.]," Webster v. Wilkins, 217 Ga.App. 194, 195(1), 456 S.E.2d 699 (1995), but must give the words the plain and ordinary meaning that would be given to them by the average reader. Id.

Georgia law is abundantly clear that Willis cannot rely on rumor, innuendo, and extraneous circumstances to create an inference of defamation. Even express mention of one's name with another accused of misconduct, which did not occur here, does not constitute defamation, and such a complaint is subject to dismissal. Stevens v. Morris Communications Corp., 170 Ga.App. 612, 614, 317 S.E.2d 652 (1984). In Stevens, this Court affirmed dismissal of a "patently absurd" complaint alleging that plaintiff was defamed by being named as counsel for a nursing home in a newspaper article reporting poor conditions there. In Chance v. Munford, Inc., 178 Ga.App. 252, 342 S.E.2d 746 (1986), we held no libel existed when the defendant posted a notice stating that the plaintiff was not allowed in its store, regardless of what readers of the notice might speculate as to the reasons for plaintiff's exclusion. Finally, when a termination notice on its face contained no criticism of the plaintiff, it was not actionable even though it was contemporaneous with a theft investigation in which the plaintiff was a suspect, and even though defendant had held an earlier meeting of all its employees informing them that the plaintiff had been suspended for being "involved" in the theft. Zielinski v. Clorox Co., 215 Ga.App. 97, 99(2), 450 S.E.2d 222 (1994).

Willis's contention that innuendo renders these letters defamatory is without merit. "Appellant argues that the [letters are] libelous by innuendo because persons reading [them] would assume that [he] had done something terrible.... We believe appellant misconstrues the meaning of 'innuendo.' The office of an innuendo is to explain that which is of doubtful or ambiguous meaning in the language of the publication, but [it] cannot enlarge the meaning of words plainly expressed therein. Innuendo means only that where words are capable of two meanings, one of which would be libelous and actionable and the other not, it is for the jury to say, under all the circumstances surrounding its publication, which of the two meanings will be attributed to it by those to whom it is addressed or by whom it may be read. If the words of the alleged defamatory publication are unambiguous and are incapable of the meaning ascribed to them by innuendo, no action for libel will lie." (Citations and punctuation omitted.) Chance v. Munford, Inc., supra, 178 Ga.App. at 252, 342 S.E.2d 746.

Compare Southern Co. v. Hamburg, supra, in which an employer distributed two press releases. The first stated that the plaintiff was being placed on administrative leave during an internal investigation of ethical standards in his department, and the second stated that the internal investigation resulted in the plaintiff's discharge and quoted the employer's executive vice president as stating " 'we're committed to taking decisive actions when our business standards are not met.' " 220 Ga.App. at 839(1), 470 S.E.2d 467. We declined to hold that these statements were not defamatory as a matter of law. Id.

In contrast, "[t]he words ... in this case are clear and unambiguous and do not tend to injure appellant's reputation or expose [him] to 'public hatred, contempt, or ridicule.' [Cits.] The words of the [letters] contain no hurtful innuendo regarding appellant's character or behavior and a reader's subjective decision to impute such innuendo to the [letters] is not actionable as a defamation. [Cit.]" Chance, supra, 178 Ga.App. at 253, 342 S.E.2d 746.

Even construing the letters favorably toward Willis, we find that he could not prove any state of facts entitling him to relief. The first letter does not mention Willis or his business by name, nor does it allege wrongdoing on the part of any person. It simply instructs policyholders to transfer their premium payments to a new location. A defamatory interpretation cannot be extracted from the mere mention of "a local funeral home" in a letter that also mentions White, without any reference to criminal activity or wrongdoing on the part of anyone. Nor can a defamatory interpretation be extracted from a simple clerical notation regarding the transfer of records to and payment of premiums at a new location, even if those records had already been transferred. To do so requires the liberal application of speculation, rumor, and innuendo in precisely the fashion forbidden by Zielinski and Chance. Dismissal of the claim was proper.

(b) Moreover, it is apparent from the allegations of Willis's complaint that United's letters were privileged communications under OCGA § 51-5-7(2) and (3). ¹ Statements made in the good faith performance of a private duty, such as reports from an independent investigator to an insurance company, are privileged. Haezebrouck v. State Farm Mut., etc., Ins. Co., 216 Ga.App. 809, 813, 455 S.E.2d 842 (1995); see also Kitchen Hardware, Ltd. v. Kuehne & Nagel, Inc., 205 Ga.App. 94, 96(2), 421 S.E.2d...