Allen v. Thomson Newspapers, Inc.

893 So. 2d 227, 4 La.App. 3 Cir. 1344, 2005 La. App. LEXIS 119, 2005 WL 233866
CourtLouisiana Court of Appeal
DecidedFebruary 2, 2005
DocketNo. 04-1344
StatusPublished
Cited by2 cases

This text of 893 So. 2d 227 (Allen v. Thomson Newspapers, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. Thomson Newspapers, Inc., 893 So. 2d 227, 4 La.App. 3 Cir. 1344, 2005 La. App. LEXIS 119, 2005 WL 233866 (La. Ct. App. 2005).

Opinion

| GREMILLION, Judge.

The defendant, Richard J. Schmidt, appeals the trial court’s grant of summary judgment in favor of his homeowner insurer, State Farm Insurance Company, and dismissing the claims of the plaintiff, Janice Trahan Allen, against it with prejudice, but reserving all of her claims against Schmidt. For the following reasons, we affirm.

FACTS;-

This matter stems from the highly publicized case in which Schmidt, a Lafayette gastroenterologist, was convicted of attempting to murder his lover,- Allen, by injecting her with the HIV virus. In this instance, Allen filed suit against- Various defendants as a result of an interview given by Schmidt to a reporter for ABC Newsj in which he stated that Allen was a “stalker.” Subsequent to the airing of this [229]*229interview on national television, a- story was published in The Advertiser, a Lafayette newspaper, bearing the headline, “Schmidt Calls Victim Stalker.” As a result of the interview and the story, Allen filed suit against the paper’s publisher and the editor and reporter responsible for the February 20, 1999 story, as well as against Schmidt. She settled her claims against the publisher, editor, and reporter, dismissing them from the suit.

Allen later amended her petition to name State Farm as an additional defendant. State Farm had issued a policy of homeowners liability insurance to Schmidt, which Allen alleged provided coverage for the damages she suffered as a -result of Schmidt’s defamatory statement. After answering Allen’s petition, State Farm filed a motion for partial summary judgment alleging that Schmidt’s 1 ¡.homeowners policy excluded coverage for claims arising from defamation. Following a hearing, the trial court granted the motion and rendered a judgment dismissing State Farm from this suit. This appeal by Schmidt followed.

ISSUES

On appeal, Schmidt argues that the trial court erred in finding that Allen’s claims are excluded from coverage under his homeowner’s policy with State Farm and that it erred in failing to find that State Farm has a duty to defend him. Allen has also raised an assignment of error on appeal, but since ■ she .failed to answer Schmidt’s appeal, we need not address that assignment. La.Code Civ.P. art. 2133.

STANDARD OF REVIEW

The standard of review pertaining to summary judgment is well established, as provided byLa.Code Civ.P. art. 966. Accordingly, we will undertake a de novo review of the matter. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191.

DEFAMATION

In his first assignment of error, Schmidt argues that the trial court erred in finding that Allen’s claims, if proven, would be excluded from coverage under his homeowners policy. The State Farm policy issued to Schmidt contains a provision excluding coverage for bodily injury “which is either expected or intended by an insured” or “to any person ... which is the result of willful and malicious acts of an insured.”

The supreme court, in the recent case of Costello v. Hárdy, 03-1146, pp. 12-14 (La.1/21/04), 864 So.2d 129, 139-41 (footnotes omitted), explained the law |spertaining to defamation as it stands in Louisiana:

Defamation is a tort which involves the invasion of a person’s interest in his or her reputation and good name. Fitzgerald v. Tucker, 98-2313, p. 10 (La.6/29/99), 737 So,2d 706, 715; Trentecosta v. Beck, 96-2388, p. 10 (La.10/21/97), 703 So.2d 552, .559; Sassone v. Elder, 626 So.2d 345, 350 (La. 1993). “Four elements are necessary to establish a defamation cause of action: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.” Trentecosta, 96-2388 at 10, 703 So.2d at 559 (citing RESTATEMENT (SECOND) OF TORTS § 558 (1977)). The fault requirement is .often set forth in the jurisprudence as malice, actual or implied. See, Cangelosi v. Schwegmann Bxos. Giant Super Markets, 390 So.2d 196, 198 (La.1980) (which also considers falsity as a fifth and separate element); 12 WILLIAM E. CRAWFORD, LOUI[230]*230SIANA CIVIL LAW TREATISE: TORT LAW § 17.4 at 312 (2000). Thus, in order to prevail on a defamation claim, a plaintiff must prove “ ‘that the defendant, with actual malice or other fault, published a false statement with defamatory words which caused plaintiff damages.’ ” Trentecosta, 96-2388 at' 10, 703 So.2d at 559 (quoting Sassone, 626 So.2d at 350). If even one of the required eléments of the tort is lacking, the cause of action fails. Douglas v. Thomas, 31,470, p. 3 (La.App. 2 Cir. 2/24/99), 728 So.2d 560, 562[,] writ denied, 99-0835 (La.5/14/99), 741 So.2d 661; Kosmitis v. Bailey, 28,585, p. 2 (La.App. 2 Cir. 12/20/96), 685 So.2d 1177, 1180.
■ Defamatory wprds are, by definition, words which tend to harm the reputation of another so as to lower the person in the estimation of the community, to deter others from associating or dealing with the person, or otherwise expose a person to contempt or ridicule. Fitzgerald, 98-2313 at 11, 737 So.2d at 716; Trentecosta, 96-2388 at 10, 703 So.2d at 559 (citing RESTATEMENT (SECOND) OF TORTS § 559 cmt. (e) (1977)). Words which convey an element of personal disgrace, dishonesty, or disrepute are defamatory. Fitzgerald, 98-2313 at 11, 737 So.2d at 716. The question of whether a communication is capablé of a particular meaning and whether that meaning is defamatory is ultimately a legal question for the court. Sassone, 626 So.2d at 352. The question is answered by determining whether a listener could have reasonably understood the communication, taken in context, to have been intended in a defamatory sense. Id. To be actionable, the words must be communicated or “published” to someone other than the plaintiff. Kosmitis, 25,585 at 3, 685 So.2d at 1180.
In Louisiana, defamatory words have traditionally been classified into two categories: those that are defamatory per se and those that are [¿susceptible of a defamatory meaning. Lemeshewsky v. Dumaine, 464 So.2d 973, 975 (La.App. 4 Cir.1985). Words which expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, even without considering extrinsic facts or surrounding circumstances, are considered defamatory per se. . Kosmitis, 28,585 at 4, 685 So..2d at 1180; Lemeshewsky, -464 So.2d at 975; 12 CRAWFORD, LOUISIANA CIVIL LAW TREATISE: TORT LAW § 17.8 at 315. When a plaintiff proves publication of words that are defamatory per se, the elements of falsity and malice (or fault) are presumed, but may be rebutted by the defendant. Kosmitis, 28,585 at 4, 685 So.2d at 1180. The element of injury may also be presumed. Id.
When the words at issue are not defamatory per se, a plaintiff must prove, in addition to defamatory meaning and publication, the elements of falsity, malice (or fault) and injury. Kosmitis, 28,-585 at 4, 685 So.2d at 1180. In cases involving statements made about a public figure, where constitutional limitations are implicated, a plaintiff must prove actual malice, i.e., that the defendant either knew the statement was false or acted with reckless disregard for the truth. See, Romero v. Thomson Newspapers (Wisconsin), Inc., 94-1105, p. 5 (La.1/17/95), 648 So.2d 866, 869.

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Bluebook (online)
893 So. 2d 227, 4 La.App. 3 Cir. 1344, 2005 La. App. LEXIS 119, 2005 WL 233866, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-thomson-newspapers-inc-lactapp-2005.