Zarach v. Atlanta Claims Ass'n

• Decision Date: 11 March 1998
• Docket Number: No. A97A2549, No. A97A2550.
• Citation: 231 Ga. App. 685,500 S.E.2d 1
• Parties: ZARACH et al. v. ATLANTA CLAIMS ASSOCIATION et al. CLAXTON v. ZARACH et al.
• Court: Georgia Court of Appeals

500 S.E.2d 1

231 Ga. App. 685

ZARACH et al. v. ATLANTA CLAIMS ASSOCIATION et al.

CLAXTON v. ZARACH et al.

Nos. A97A2549, A97A2550.

Court of Appeals of Georgia.

March 11, 1998.

Reconsideration Denied March 27, 1998.

Jonathan P. Sexton, Conyers, Aleksandra H. Bronsted, for Zarach.

Swift, Currie, McGhee & Hiers, Susan A. Dewberry, Atlanta, for Atlanta Claims Association.

Gorby & Reeves, Michael J. Gorby, Daniel E. Turner, for Claxton. SMITH, Judge.

Dr. Robert Zarach and Chamblee Chiropractic Center filed suit against Atlanta Claims Association, William P. Claxton, and the law firm of Goodman, McGuffey, Aust & Lindsey seeking damages for: libel; slander; intentional infliction of emotional distress; disparagement of services, and unfair trade practices; injury to peace, happiness, and feelings; and false light invasion of privacy. The complaint also sought punitive damages and attorney fees under OCGA § 13-6-11.

The three defendants filed motions for summary judgment in the trial court. Atlanta Claims Association's motion sought partial summary judgment on plaintiffs' claims for: intentional infliction of emotional distress; injury to peace, happiness, and feelings; false light invasion of privacy; punitive damages; and attorney fees.¹ The trial court granted Atlanta Claims Association's motion and ruled sua sponte in the association's favor on the remaining claim of libel.

The trial court also granted Goodman, McGuffey, Aust & Lindsey's motion for summary judgment on all claims. The court denied Claxton's motion for summary judgment on the claims of libel, false light invasion of privacy, punitive damages, and attorney fees, but granted summary judgment on the claims for intentional infliction of emotional distress, and injury to peace, happiness, and feelings.

In Case No. A97A2549, Zarach and Chamblee Chiropractic Center appeal from the trial court's grant of summary judgment to Atlanta Claims Association and Goodman, McGuffey, Aust & Lindsey.² In Case No. A97A2550, Claxton cross-appeals from the trial court's denial of his motion on the claims for libel, false light invasion of privacy, punitive damages, and attorney fees.

Under the standard of Lau's Corp. v. Haskins, 261 Ga. 491, 495(4), 405 S.E.2d 474 (1991), defendants were entitled to summary judgment if they showed, by the record, an absence of evidence to support an essential element of the plaintiffs' case. In determining whether the trial court's rulings were correct in this case, we review the record de novo, construing the evidence and all inferences from the evidence strongly in favor of the nonmoving party. Denise v. Cannon, 219 Ga.App. 765, 766, 466 S.E.2d 885 (1995).

Claxton is an attorney and partner in the law firm of Goodman, McGuffey, Aust & Lindsey. The majority of his practice involves representing insurance companies and handling their questionable or fraudulent insurance claims. Sometime in mid-1994, Claxton was approached by a member of the Atlanta Claims Association, a local nonprofit organization, and asked to participate in an upcoming seminar on insurance fraud. Claxton, who is a member of the association, agreed to speak at the seminar and to prepare a topic entitled "Fraud Indicators" for the seminar materials. The papers he provided for the topic consisted of a table of contents with fourteen sections, one of which was entitled "Review of Vietnamese Claims."

Claxton included a separate section on Vietnamese claims in his seminar material because, in his opinion, the Vietnamese community seemed to be targeted by certain professionals for their insurance claim business more than any other cultural group. In this section of his seminar material, Claxton included a packet of information he obtained from an insurance company that had asked him to investigate a personal injury claim made by one of its Vietnamese insureds. The insurance claims supervisor included plaintiffs' advertisement from a local Vietnamese newspaper in this packet because Zarach had treated the insured for injuries he allegedly received in an automobile accident.³ Claxton included plaintiffs' advertisement in his seminar material to illustrate his point that chiropractors and other professionals were soliciting the Vietnamese community for its insurance claims business.

Upon completing the seminar material, Claxton submitted the original to the Atlanta Claims Association without making a copy for himself. Claxton contends that because of an oversight, he inadvertently included a copy of plaintiffs' advertisement without redacting the names. He further contends that a copy of the advertisement with plaintiffs' names redacted was prepared, but he mistakenly failed to include this redacted version with the original papers.⁴

Claxton's article, along with articles submitted by other speakers at the seminar, was copied and bound for handout at the seminar by Atlanta Claims Association's representative. Neither this representative nor anyone else at Atlanta Claims Association supervised, oversaw, proofed, redacted, or approved any of the seminar material submitted by the five speakers at the insurance fraud seminar. Atlanta Claims Association followed this procedure for all previous seminars and never had any previous problems with its policy of not reviewing seminar material submitted by speakers.

Atlanta Claims Association made 150 copies of the seminar booklet and made them available to seminar attendees. During the seminar, Claxton never reached the section of his materials on Vietnamese claims because he ran out of time. The advertisement, however, was noticed by a fraud investigator attending the seminar who brought it to the attention of Zarach's current attorney.

Case No. A97A2550

1. Claxton first alleges the trial court erred in failing to grant his motion for summary judgment on plaintiffs' libel claim on the ground that he was immune from civil liability pursuant to the provisions of OCGA § 51-1-20. The immunity granted by this Code section is limited to: "[a] person serving with or without compensation as a member, director, or trustee, or as an officer of the board without compensation, of any nonprofit... association or of any nonprofit, charitable ... institution or organization ... acting in good faith within the scope of his or her official actions and duties." OCGA § 51-1-20(a). Although it is undisputed that Claxton was a member of Atlanta Claims Association at the time of the seminar, no evidence was presented to support his contention that his participation in the seminar was within the scope of any official actions and duties owed to the association. Absent such a showing, Claxton is not entitled to the immunity provided for in this statute.⁵ Compare Bunkley v. Hendrix, 164 Ga.App. 401, 296 S.E.2d 223 (1982) (member of board of governors of nonprofit organization entitled to civil immunity under former Code Ann. § 105-114 for official actions authorizing activity at which plaintiff injured). The trial court did not err in failing to grant Claxton's motion for summary judgment on these grounds.

2. Claxton next contends the trial court erred in denying his motion for summary judgment on plaintiffs' libel claim because the evidence of record fails to support a claim for either libel per se or libel per quod. We agree.

"A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule." OCGA § 51-5-1. A written defamatory statement is actionable as either libel per se or libel per quod. Macon Telegraph Pub. Co. v. Elliott, 165 Ga.App. 719, 723(5), 302 S.E.2d 692 (1983).

"Libel per se consists of a charge that one is guilty of a crime, dishonesty or immorality." (Citations and punctuation omitted.) Barber v. Perdue, 194 Ga.App. 287, 288, 390 S.E.2d 234 (1989). Statements that tend to injure one in his trade or business also are libelous per se. See Southern Co. v. Hamburg, 220 Ga.App. 834, 840(3), 470 S.E.2d 467 (1996). When determining whether words are defamatory as a matter of law, courts may not hunt for strained constructions, see Willis v. United Family Life Ins., 226 Ga.App. 661, 662, 487 S.E.2d 376 (1997), and must rely upon the words themselves in considering whether a statement was defamatory per se. See Mathews v. Atlanta Newspapers, 116 Ga.App. 337, 339, 157 S.E.2d 300 (1967); Barber, supra. "Defamatory words which are actionable per se are those which are recognized as injurious on their face—without the aid of extrinsic proof. However, if the defamatory character of the words [does] not appear on their face but only become defamatory by the aid of extrinsic facts, they are not defamatory per se, but per quod, and are said to require innuendo. [Cit.]" Macon, supra at 723, 302 S.E.2d 692. The law is abundantly clear in Georgia—words that are libelous per se do not need innuendo. World Ins. Co. v. Peavy, 110 Ga.App. 651, 654, 139 S.E.2d 440 (1964).

In this case, plaintiffs have not demonstrated that the inclusion of plaintiffs' advertisement in the seminar material was defamatory as a matter of law. A copy of plaintiffs' advertisement appears in the appendix to Claxton's seminar material in the section entitled "Review of Vietnamese Claims." Although no words accompany the advertisement explaining the purpose behind its inclusion in the seminar material (i.e., to illustrate how professionals, including chiropractors, solicited the Vietnamese community for their insurance claims business), neither are words included charging plaintiffs with participating in insurance fraud or operating their chiropractic business in a criminal, dishonest or immoral manner. Absent any such language, we cannot see how the inclusion of plaintiffs' advertisement in the seminar material, on its face, impugned plaintiffs' character or business as a matter of law.

We reje...