Willis v. United Family Life Insurance

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 FAMILYS 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 *662after 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 SE2d 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 SE2d 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 SE2d 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 SE2d 699) *663(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 SE2d 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 SE2d 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 SE2d 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.

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 *664committed to taking decisive actions when our business standards are not met.’ ” 220 Ga. App. at 839 (1). 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.

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. &c. Ins. Co., 216 Ga. App. 809, 813 (455 SE2d 842) (1995); see also Kitchen Hardware, Ltd. v. Kuehne & Nagel, Inc., 205 Ga. App. 94, 96 (2) (421 SE2d 550) (1992). Compare Zielinski, supra, 215 Ga. App. at 98 (1) (general announcement of theft investigation to employees “without a duty and authority to control or have knowledge” constituted publication).

We conclude that an insurer has a duty to communicate to its policyholders information which might, if not revealed, cause their coverage to lapse or be cancelled. Once United Family was made aware of White’s misappropriation of premiums and consequent lapses of coverage, it was appropriate for United to notify its policyholders of the potential problem, without making explicit reference to *665criminal or improper conduct on anyone’s part. Because White had worked out of Willis’s funeral home, it was also appropriate for United to notify its policyholders not to make payments at a place where White might receive and divert them.2 Had. a claim been made on a policy that lapsed due to diversion of premiums after United Family became aware of White’s conduct but failed to notify its policyholders, United Family could have been subjected to claims for bad faith penalties and attorney fees under OCGA § 33-4-6. See, e.g., Globe Life &c. Ins. Co. v. Ogden, 182 Ga. App. 803 (357 SE2d 276) (1987) (insurer liable for bad faith penalties after its agent misappropriated premiums and policy lapsed).

The communications also were appropriately limited to those authorized to receive them. United Family did not publish notices in a newspaper, poster, or circular exposed to the view of the general public, nor did it send a general mailing including past and prospective customers. Instead, it mailed individually addressed notices to its policyholders. As in Haezebrouck, supra, only those directly concerned were notified. Even construing the allegations of the complaint in his favor, Willis can prove no set of facts defeating this privilege; the status of the letters’ recipients as policyholders was alleged by Willis himself. The trial court did not err in granting United’s motion to dismiss on Willis’s defamation claims.

2. Willis’s claim alleging tortious interference with business relations is based entirely on the same actions that he contends constituted defamation. To make out a case of tortious interference a plaintiff must show that a defendant: (1) acted improperly and without privilege, (2) acted purposely, with malice, and with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) caused the plaintiff to suffer some financial injury. Jenkins v. Gen. Hosps. of Humana, 196 Ga. App. 150, 151 (395 SE2d 396) (1990). The trial court correctly concluded that Willis could prove no set of facts , that would entitle him to relief, even considering his response to United’s motion and assuming all allegations in the complaint are true. Robin v. BellSouth Advertising &c. Co., 221 Ga. App. 360, 361-362 (3) (471 SE2d 294) (1996) (illustrating stringency of requirements).

3. Finally, based on the same factual allegations, Willis contests the dismissal of his claim for intentional infliction of emotional distress. The Jenkins court summarized the law in this area as well, stating that “Georgia permits a recovery for the tort of intentional infliction of emotional distress only for conduct which is of an outra*666geous or egregious nature or so terrifying or insulting as to humiliate, embarrass, or frighten the plaintiff. [Cit.]” 196 Ga. App. at 152. A claim under this theory, however, may not succeed where the defendant uttered “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. [Cit.]” Id. The trial court dismissed Willis’s claim on two grounds: (1) there was no outrageous conduct present; and (2) the conduct at issue was not directed at the appellant.

It was proper for the trial court to dismiss this claim on either ground. The conduct in this Case, the sending of the allegedly objectionable letters at issue, was not “outrageous.” This is a question of law and one resoundingly settled in favor of defendants. Johnson v. Savannah College of Art &c., 218 Ga. App. 66, 67 (460 SE2d 308) (1995); see Peoples v. Guthrie, 199 Ga. App. 119, 121-122 (2) (404 SE2d 442) (1991) (though accusations of dishonesty or lack of integrity in individual’s employment may be horrifying or traumatizing, they do not constitute intentional infliction of emotion distress); Sossenko v. Michelin Tire Corp., 172 Ga. App. 771, 772-773 (324 SE2d 593) (1984) (warnings, job transfers, and harassment directed towards “whistleblower” do not constitute intentional infliction of emotional distress). Compare American Finance &c. Corp. v. Coots, 105 Ga. App. 849 (125 SE2d 689) (1962) (bill collector terrorized plaintiff and his pregnant wife at gunpoint); Stephens v. Waits, 53 Ga. App. 44 (184 SE 781) (1936) (defendant physically intimidated mourners at graveside).

The conduct in this case,' moreover, was not directed at Willis. Willis’s failure to show this essential element also supports the dismissal of his claim. See Tucker v. News Publishing Co., 197 Ga. App. 85, 87 (2) (397 SE2d 499) (1990) (student injured in attack unsuccessfully sued defendant newspaper for merely printing stories about the attack); see also Carter v. Willowrun Condo. Assn., 179 Ga. App. 257, 260 (5) (345 SE2d 924) (1986) (condominium renters unsuccessfully sued president of association after president sent objectionable letter to condominium owners). The mere sending of letters not directed at Willis’s person and containing only a collateral reference to Willis’s place of business will not support a claim for intentional infliction of emotional distress.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., and Ruffin, J., concur. McMurray, P. J., Beasley and Eldridge, JJ, concur in part and dissent in part.

We do not reach the issue of whether United’s letters are subject to the exception to the publication rule as established in Kurtz v. Williams, 188 Ga. App. 14 (3) (371 SE2d 878) (1988).

This would be of particular importance to policyholders who did not happen to recall White’s name.