Opinion
01 C 6183
October 22, 2003
Paul Porter, a former Field Vice President for Bankers Life Casualty Company ("Bankers"), is suing his former employer. Upon becoming aware of possible insurance fraud in Porter's region, Bankers conducted an investigation, terminated him, and replaced him with Dean Aldridge. Porter claims that Aldridge subsequently defamed him in front of other employees. First, Aldridge allegedly made statements about Porter to Bankers employees or agents during the business and non-business portions of the December 2000 Bankers managers meeting in Dallas, Texas. Aldridge also allegedly made statements during an April 2001 Bankers sales meeting in Memphis, Tennessee to the effect that Porter has been "caught with his hand in the cookie jar." Finally, Aldridge allegedly made admonitions during working hours, on the telephone or in person at various Bankers locations, to Bankers employers that they should not associate with crooks (and related comments to them about associating with crooks and playing golf with crooks), and that if he, Aldridge, learned they were associating with Porter they would be fired.
Porter also claims that some Bankers employees defamed him in front of third parties. First, Porter claims to have testimony from former Bankers employees Shawn Condon and Huey Kelly that United American Insurance Company employees had heard from unidentified sources that Porter and others had been taken out of their respective offices in handcuffs. Porter also claims to have testimony from Condon and former Bankers employees Kendra Folleth and Dennis McComb that employees of various other insurance companies said they would not hire Porter based upon what they had heard from unidentified sources about him and about his reputation.
Last year, Bankers moved for summary judgment, and I substantially granted the motion and dismissed all of Porter's claims except for his slander claims. Bankers now moves for summary judgment on these claims. Summary judgment is appropriate if, after drawing all reasonable inferences in favor of the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 320 (7th Cir. 1992). The question is thus "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
In my prior ruling, I ruled that intra-corporate communications — those between agents or officers of the corporation in connection with their duties for the corporation — are not "published" and thus are not slanderous as a matter of law. Although I found that many statements attributed to Aldridge may qualify as intra-corporate communications, I found that some of them (specifically those made while socializing with sales subordinates) may not qualify because they may have been made outside the scope of his duties for Bankers. Unfortunately, I failed to consider that Mississippi law holds that an "employer is liable for the torts of his employee only when they are committed within the scope of employment." Adams v. Cinemark USA, Inc. 831 So.2d 1156, 1159 (Miss. 2002). "[T]o be `within the scope of employment,' the act must have been committed in the course of and as a means for accomplishing the purposes of the employment and therefore in furtherance of the master's business." Id. Therefore, Porter cannot recover from Bankers for slanderous statements made by Aldridge outside the scope of his employment. Accordingly, summary judgment is appropriate as to all of Aldridge's alleged statements made to other employees. If Aldridge was acting for Bankers at the time of the alleged statements, the communications were non-published intra-corporate communications; if he was not, Bankers cannot be held vicariously liable for what he said.
As for Porter's claims regarding slanderous statements to third parties outside the corporation, his "evidence" to support each of these claims is inadmissible hearsay. Fed.R.Evid. 802. Although the testimony of someone who heard the defendant make an allegedly defamatory statement is not hearsay, testimony that someone heard someone else talk about having heard alleged defamation is inadmissible hearsay. Bularz v. Prudential Ins. Co. of Am., 93 F.3d 372, 377-78 (7th Cir. 1996). Porter has come forward with no testimony by someone who heard — firsthand — anyone slander Porter to a third party who is not a Bankers agent or employee. Accordingly, summary judgment with respect to any claim of slander based on statements made to persons outside of Bankers is appropriate.
For the reasons above, Bankers' Renewed Motion for Summary Judgment is GRANTED.