Dulgarian v. Stone

420 Mass. 843
CourtMassachusetts Supreme Judicial Court
DecidedJuly 24, 1995
StatusPublished
Cited by69 cases

This text of 420 Mass. 843 (Dulgarian v. Stone) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dulgarian v. Stone, 420 Mass. 843 (Mass. 1995).

Opinion

Abrams, J.

In late May, 1989, WBZ-TV4 broadcast a three-part “I-Team” investigative report entitled “Highway Robbery?”. The report concerned potential conflicts of interest between automobile body repair shops and drive-in appraisal services for automobile insurance companies. One portion of the second segment of the report focused on the plaintiffs. As a result of the broadcast of the investigative report, the plaintiffs brought this action for defamation (slander and libel), interference with business relations, injurious falsehood, and violation of G. L. c. 93A, § 11 (1994 ed.). A Superior Court judge allowed the defendants’ motion for summary judgment on all counts. The plaintiffs appealed. We transferred the case here on our own motion. We affirm.

1. Facts. The facts are not disputed. On May 23, 1989, WBZ-TV4 broadcast a segment of a three-part investigative report entitled “Highway Robbery?”. The text of the portion of the broadcast relating to the plaintiffs’ operations is as follows:

Reporter: “Our investigation uncovered another area of potential abuse involving appraisal services. Those services do damage estimates on cars after collisions. The law says it’s a conflict of interest for an appraiser to use a body shop for drive-in estimates. Here’s why: there could be collusion whereby the appraiser could steer business to the nearby shop. That could create an unfair advantage.
“On a recent Saturday we saw car after car pulling into an Allstate drive-in appraisal service operated out of this body shop in Lowell . . . The owner of the shop insists this is perfectly legal. . . .”
[845]*845Bulgarian: “People have a choice. They don’t have to come here. We don’t ask them to come here. They’re given a choice of shops by the insurance company and they can go where they want.”
Reporter: “In addition, Bulgarian has his own independent appraisal service housed in another part of the building . . . .”
Bulgarian: “They’re two individual businesses. They pay taxes differently. They’re registered differently. OK?”
Reporter: “We showed videotapes of Bulgarian’s operations to a former member of the appraisers board who helped write the conflict of interest regulations, and to this current member. Both said that there appeared to be a violation of the law. “In your opinion, does this present a conflict of interest?”
Jansson:3 “It certainly does, in my opinion.”
Reporter: “We found similar set-ups at two other locations in Lowell, with body shops and appraisal services owned by the same people. Here, at Towne Auto Body, in the same building, and at American Auto Body, in two buildings on the same property. Our experts said both locations appear to be conflicts of interest. So what does this mean to the consumer? Possibly less competition among body shops, and higher prices for repairs, as the man who helped write the law explains.”
[846]*846Bisceglia:4 “We had hoped to have an open market, with no undue pressure put on the consumer to try to force him to go somewhere. Let him use the whole marketplace to pick his own bodyshop without someone trying to steer him or lowball to a specific shop.”
Reporter: “Late last week, Allstate told us that they have stopped using the National Auto Body site for drive-in appraisals because they also have concluded that there was a conflict of interest. . . .”

2. Summary judgment. “Summary judgment is appropriate when ‘there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.’ Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974).” Symmons v. O’Keeffe, 419 Mass. 288, 293 (1995). “[The] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates . . . that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Id., quoting Wheatley v. American Tel. & Tel. Co., 418 Mass. 394, 397 (1994). See Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991) (moving party’s “burden need not be met by affirmative evidence negating an essential element of the plaintiff’s case, but may be satisfied by demonstrating that proof of that element is unlikely to be forthcoming at trial”).

“[S]ummary judgment procedures are especially favored in defamation cases. . . . ‘Allowing a trial to take place in a meritless case “would put an unjustified and serious damper on freedom of expression.” ’. . . Even if a defendant in a libel case is ultimately successful at trial, the costs of litigation may induce an unnecessary and undesirable self-censorship.” [847]*847(Citations omitted.) King v. Globe Newspaper Co., 400 Mass. 705, 708 (1987), cert. denied, 485 U.S. 940 and 962 (1988).

3. Defamation, a. Legal principles. The speech at issue was a news broadcast about a matter of public concern. “[I]n order for [such speech] to be the basis of a recovery from th[e] media defendant [s], the plaintiffs must prove not only that the statements were defamatory but also that they were false.” Friedman v. Boston Broadcasters, Inc., 402 Mass. 376, 381 (1988). See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986) (where plaintiff is a private figure and newspaper articles are a matter of public concern, there is “a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages”). This requirement insulates from liability statements that are not provable as false. Hepps, supra at 778. See Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724, 727 (1st Cir.), cert. denied, 504 U.S. 974 (1992) (“statements made by a media defendant ‘must be provable as false’ before there can be defamation liability”); National Ass’n of Gov’t Employees, Inc. v. Central Broadcasting Corp., 379 Mass. 220, 230 (1979), cert. denied, 446 U.S. 935 (1980), quoting Hotchner v. Castillo-Puche, 551 F.2d 910, 912 (2d Cir.), cert. denied sub nom. Hotchner v. Doubleday & Co., 434 U.S. 834 (1977) (“An assertion that cannot be proved false cannot be held libelous”). The Superior Court judge correctly granted summary judgment because the plaintiffs had no reasonable expectation of proving the statements in the broadcast false. See Symmons, supra at 293, quoting Wheatley, supra at 397.

b. Discussion. The relevant portion of the report began by stating that the “I-Team” investigation uncovered another area of “potential abuse.” To prove the statement false, the plaintiffs would have to prove that there was no possibility, however slight, of any form of abuse in the matter under investigation. The plaintiffs did not have a reasonable expectation of proving the statement false.

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Bluebook (online)
420 Mass. 843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dulgarian-v-stone-mass-1995.