Zinda v. Louisiana-Pacific Corp., LOUISIANA-PACIFIC

• Decision Date: 26 May 1987
• Docket Number: LOUISIANA-PACIFIC
• Citation: 409 N.W.2d 436,140 Wis.2d 277
• Parties: Allan D. "Rick" ZINDA, Plaintiff-Respondent and Cross-Appellant, v.CORPORATION and Hartford Accident and Indemnity Co., a foreign insurance company, Defendants-Appellants and Cross-Respondents. 86-0737 . Orally
• Court: Wisconsin Court of Appeals

Page 436

409 N.W.2d 436

140 Wis.2d 277

Allan D. "Rick" ZINDA, Plaintiff-Respondent and Cross-Appellant, v. LOUISIANA-PACIFIC CORPORATION and Hartford Accident and Indemnity Co., a foreign insurance company Defendants-Appellants and Cross-Respondents.

86-0737

Court of Appeals of Wisconsin.

Orally Argued Feb. 11, 1987.

Opinion Released May 26, 1987.

Opinion Filed May 26, 1987.

David Weiby and Maria Cuzzo, argued, Superior, for plaintiff-respondent and cross-appellant.

James R. Scott, Milwaukee, for defendants-appellants and cross-respondents.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

LaROCQUE, Judge.

Louisiana-Pacific Corporation (L-P) and its insurer, Hartford Accident and Indemnity Company, appeal a $100,000 judgment on a jury verdict finding that L-P made a defamatory statement about its former employee, Allan D. "Rick" Zinda, and that it invaded Zinda's privacy. The issues on appeal are whether L-P abused its claimed conditional privilege to make the defamatory statement, whether there was credible evidence to support the finding that L-P's statement was substantially untrue and to find that L-P invaded Zinda's privacy, and whether the damage award was excessive. Zinda cross-appeals a summary judgment dismissing his claims for punitive damages and damages for wrongful discharge. We affirm the judgment on the verdict as to liability and the summary judgment, and reverse and remand for a new trial on damages.

The following facts are essentially undisputed. Several years before he began working at L-P's Hayward plant, Zinda had been injured in a fall through his garage roof. Zinda applied for work with L-P in 1983 and completed a standard application form as well as a medical history form. An L-P personnel officer interviewed him and recorded Zinda's answers. After Zinda was hired, he filed a product liability suit ¹ against L-P for negligently manufacturing the waferboard through which he had fallen. L-P's director of personnel, Donald Plante, upon receiving the summons and complaint, compared its allegations as to Zinda's injuries with the answers on the medical history form and found what he considered to be irreconcilable inconsistencies. Plante immediately suspended and later terminated Zinda's employment.

Plante published a notice concerning Zinda's termination in The Waferwood Press, an L-P plant newspaper, under the column heading "Comings and Goings." The notice read: "5/29/84 Terminate Al Zinda Falsification of Emp. forms." The newspaper was distributed to the employees by placement in the plant lunchroom. Employees routinely took the newspaper out of the work place. A copy of the newspaper reached the Hayward Community Hospital, where Mrs. Zinda worked, and several of her co-workers read the reference to Zinda's termination. Zinda sued L-P for libel, invasion of privacy, and wrongful discharge.

LOSS OF CONDITIONAL PRIVILEGE

L-P first claims that the trial court erred by deciding as a matter of law that its communications through The Waferwood Press were not conditionally privileged. We need not address this issue because we conclude that L-P, as a matter of law, abused any privilege it may have had when it engaged in excessive publication.

Conditional privilege may be asserted as a defense to a defamation action. Ranous v. Hughes, 30 Wis.2d 452, 467-68, 141 N.W.2d 251, 258 (1966). An otherwise defamatory communication is conditionally privileged if it is made in good faith by a person who has a sufficiently important interest in a particular subject and to a person with a corresponding interest in the subject. Converters Equip. Corp. v. Condes Corp., 80 Wis.2d 257, 264, 258 N.W.2d 712, 715 (1977). The defense of conditional privilege may be lost if the privilege is abused. Ranous, 30 Wis.2d at 468, 141 N.W.2d at 258-59.

The conditional privileges section of Restatement (Second) of Torts (1977), has been endorsed by the Wisconsin Supreme Court. Convertors Equip. Corp., 80 Wis.2d at 264, 258 N.W.2d at 716. A privilege to communicate is abused, and its protection lost, if "the publication was made to some person not reasonably believed to be necessary for the accomplishment of the particular privilege...." Ranous, 30 Wis.2d at 468, 141 N.W.2d at 259 (citing Restatement of Torts sec. 603 at 269-70 (1938)). Where, as here, the material facts are not in dispute, the question of abuse of privilege is one of law that we may decide without deference to the trial court. See Ranous, 30 Wis.2d at 469, 141 N.W.2d at 259.

Restatement (Second) of Torts sec. 604 (1977) provides:

Excessive Publication

One who, upon an occasion giving rise to a conditional privilege for the publication of defamatory matter to a particular person or persons, knowingly publishes the matter to a person to whom its publication is not otherwise privileged, abuses the privilege unless he reasonably believes that the publication is a proper means of communicating the defamatory matter to the person to whom its publication is privileged.

Comment:

a. Ordinarily, a privilege is abused by speaking defamatory words in the presence of persons whose knowledge of them is unnecessary to the protection of the interest in question. However, this is not true when the publication to those persons is reasonably incidental to the communication of the defamatory matter to the person whose knowledge is reasonably believed to be necessary or useful for the protection of the interest. In many cases, the communication, to be effective, must be made at a given time and place even though third persons are present who are likely to overhear it. In other cases, the difficulty of strictly private communication may be so great as to make it proper to speak when a third person is present. On the other hand, if the speaker unnecessarily publishes a slander to third persons to whom he is not privileged to publish it, the fact that by so doing he communicates the defamatory matter to a person to whom he is privileged to publish it does not prevent his conduct from being an abuse of the privilege.

L-P abused any privilege it may have had. Both Plante and his supervisor were fully aware that the newspapers were routinely removed from the premises. Further, the content of The Waferwood Press encouraged its removal. For example, a full page of the disputed edition was devoted to specifications and drawings for building a storage shed. In order to use the plan, an employee would almost certainly carry the newspaper out of the plant. Other columns reported social events of interest to family members and friends beyond those employed at L-P. The newspaper contained no suggestion that the defamatory material was to be treated as confidential. Given these undisputed facts, L-P knowingly published to excess.

Assuming without deciding that the company's asserted goals gave rise to a conditional privilege, ² those goals could easily

have been met by other means. Printing the defamation in a newspaper with no attempt to restrict publication was an abuse of the claimed privilege.

SUBSTANTIAL TRUTH

L-P also contends that no credible evidence supports the jury's "NO" answer to the verdict question, "Was the statement '5/29/84 Terminate Al Zinda Falsification of Emp. forms' substantially true"? The substantial truth of any statement is an absolute defense to a defamation action. Schaefer v. State Bar, 77 Wis.2d 120, 125, 252 N.W.2d 343, 346 (1977). The burden of proving the substantial truth of a statement is placed on the publisher. Denny v. Mertz, 106 Wis.2d 636, 661 n. 35, 318 N.W.2d 141, 153 n. 35 (1982).

Zinda testified that while he had previously sustained some injuries of the nature listed on the medical history form, he was in good health when he filled out the form. He also testified that he truthfully completed the form. The jury could reasonably have found Zinda's testimony credible.

The medical inquiry form is extremely vague. The form lists a series of health concerns, some phrased in the present tense, some in the past, and still others totally unspecified. For example, the form asks "Do You Have A Cold Now," "Are You In Good Health," "Do You Wear Glasses," and "Use Tranquilizers." Other questions inquire of "Previous Surgery," "Previous Hospitalization," or ask the applicant "Ever Feel Depressed." Numerous others, however, are obscurely presented: "Back Injury Or Disability," and "Fracture Or Broken Bone." The applicant is left to speculate whether the inquiry is into past or present problems.

When questions call for an applicant's judgment or opinion, any ambiguity should be construed against the company that prepared the form. See Nolden v. Mutual Bene. Life Ins. Co., 80 Wis.2d 353, 366, 259 N.W.2d 75, 81 (1977). In fact, Zinda marked "Yes" after "Previous Surgery" and "Previous Hospitalization" and, in a space to explain all "Yes" answers, he wrote, in part: "fall off [r]oof." Further, Zinda, when interviewed, was asked: "What accidents have you had on or off the job"? He answered: "Fell off roof--broke some bones--ribs, heel--no problem now."

The jury was charged with weighing the credibility of the witnesses. Hochgurtel v. San Felippo, 78 Wis.2d 70, 84 n. 5, 253 N.W.2d 526, 532 n. 5 (1977). Given Zinda's testimony, the ambiguous nature of the medical history form, and his interview answers, the jury's conclusion that Zinda did not falsify his employment forms was supported by credible evidence.

INVASION OF PRIVACY

L-P next claims that there was no credible evidence from which the jury could determine that L-P unreasonably invaded Zinda's privacy. Zinda's invasion of privacy claim is based on sec. 895.50(2)(c), Stats. ³ Section 895.50(2)(c) defines invasion of privacy as:

Publicity given to a matter concerning the private life of another, of a kind highly offensive to a reasonable person, if the defendant has acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter involved,...