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Hawkins v. Harris

July 27, 1995

LINDA HAWKINS, PLAINTIFF-APPELLANT,
v.
BRIAN HARRIS, STEPHEN HOPKINS, BRAFF, EWH&S, SEARCH INVESTIGATIONS, INC., ALEX TOIA, STATE FARM INSURANCE CO., AND NEW JERSEY AUTOMOBILE FULL INSURANCE UNDERWRITING ASSOCIATION (JUA), DEFENDANTS-RESPONDENTS, AND HANOVER INSURANCE CO., DEFENDANT.



On appeal from the Superior Court, Appellate Division.

The opinion of the Court was delivered by O'hern, J. Justices Pollock, Garibaldi and judge Michels join in Justice O'HERN's opinion. Justice Handler filed a separate Dissenting opinion in which the Chief Justice and Justice Stein join. Justice Coleman did not participate.

The opinion of the court was delivered by: O'hern

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

LINDA HAWKINS V. BRIAN HARRIS, ET AL. (A-6-94)

Argued September 12, 1994 -- Reargued May 1, 1995 -- Decided July 27, 1995

O'HERN, J., writing for a majority of the Court.

The issue on appeal is whether the absolute privilege accorded to statements made by participants in judicial proceedings extends to statements made by private investigators employed by the parties or their representatives.

On July 1, 1987, Linda Hawkins was involved in an automobile accident that left her physically and mentally disabled. On July 14, 1987, Hawkins had another automobile accident that worsened her condition. Hawkins filed lawsuits against the two responsible parties. Those matters were consolidated for discovery and trial and a jury returned a verdict in favor of Hawkins for over $400,000.

On April 10, 1981, Hawkins filed a seven-count complaint against various attorney-defendants, insurer-defendants, and investigator-defendants involved in the underlying personal injury litigation. The insurer-defendants were the insurers of the various defendants in the automobile accident. The lawyer-defendants were attorneys for one of the motorists in the underlying case. The lawyer-defendants and insurer-defendants had hired the investigator-defendants to gather information about the accidents and the resulting damages claimed by Hawkins. Hawkins's complaint included allegations that the investigator-defendants defamed her during their investigation. Her complaint was eventually dismissed by the trial court for failure to state a cause of action.

Hawkins appealed the dismissal of her complaint. The Appellate Division reversed the trial court's dismissal of her claims for invasion of privacy, negligent infliction of emotional distress and conspiracy but affirmed the trial court's dismissal of Hawkins' other claims. One member of the Appellate Division panel Dissented from that part of the decision affirming the dismissal of Hawkins' defamation claims against the investigator-defendants. According to Hawkins' complaint, the investigator-defendants had portrayed her as an unfaithful spouse, an insurance cheat, and as a suborner of perjury. The Dissent found that those allegations could amount to actionable defamation unless privileged. The Dissent acknowledged that lawyers are given an absolute immunity for statements made in the course of judicial proceedings so that they may exercise unfettered judgment in their clients' interests. Nonetheless, the Dissent opined that investigators should be limited to a qualified privilege, being held liable for otherwise defamatory statements the investigator knows to be false, or utters in reckless disregard of its truth or falsity.

Hawkins appeals to the Supreme Court as of right on the basis of the Dissent below.

HELD: Relevant statements made in the course of pretrial discovery by private investigators employed by the parties or their representatives are protected by an absolute privilege and are, therefore, immune from liability.

1. Although defamatory, a statement will not be actionable if it is subject to an absolute or qualified privilege. A statement made in the course of judicial, administrative, or legislative proceedings is absolutely privileged and wholly immune from liability. That immunity is predicated on the need for unfettered expression. The extension of an absolute privilege to jurors, witnesses, and parties and their representatives is grounded in similar public-policy concerns. The defamatory statement, however, must have some relation to the nature of the proceedings in order to be privileged. (pp. 5-9)

2. The absolute privilege applies to any communication 1) made in judicial or quasi-judicial proceedings; 2) by litigants or other participants authorized by law; 3) to achieve the objects of the litigation; and 4) and has some connection or logical relation to the action. Whether a defendant is entitled to the privilege is a question of law. The litigation privilege extends to all statements or communications made in connection with the judicial proceeding. The privilege also extends to preliminary conversations and interviews between a prospective witness and an attorney if they are related or connected to the pending action. (pp. 9-10)

3. The pretrial Discussions between the investigator-defendants and the witnesses were made in the course of the underlying personal injury litigation and were undertaken to achieve the objects of the litigation. The allegedly defamatory statements concerning insurance fraud and the subornation of a witness were clearly relevant to the underlying litigation. However, there is less certainty about the relevance of Hawkins' claimed infidelity. (pp. 10-14)

4. The litigation privilege should extend to those who aide an attorney in the course of legal proceedings. Thus, the privilege should extend to the relevant statements an investigator has made in the course of pretrial discovery. To protect from investigator abuse, courts have the power and authority to impose sanctions on parties for an abuse of the discovery process. In addition, some private investigators will be subject to State licensure procedures. Finally, an attorney may be held professionally responsible for a lack of supervision of such investigators. (pp. 14-18)

5. The litigation privilege is not a license to defame. A statement is privileged only if it has some relation to the proceeding. Because of the unusual procedural posture of this case, the trial court may not have fully considered the relevance to the underlying litigation of the investigator's alleged suggestion of Hawkins' adultery. However, this issue is not before the Court on appeal. (p. 18)

Judgment of the Appellate Division is AFFIRMED.

JUSTICE HANDLER, Dissenting, in which the CHIEF JUSTICE and JUSTICE STEIN join, is of the view that investigators should be limited to a qualified privilege with respect to defamatory statements made in the course of an investigation that is not a direct part of a judicial proceeding. A qualified privilege is sufficient to protect investigators and the attorneys who hire them without impinging on the investigator's ability to conduct a fruitful investigation. The fact that investigators may assist attorneys in preparing a case does not justify extending an unqualified and absolute privilege to those investigators for statements made in the course of investigations. Because informal discovery undertaken by investigators is not subject to judicial supervision, it is subject to abuse. Therefore, the absolute privilege should not be extended to investigators absent adequate safeguards. As exemplified by this case, the grant of immunity coupled with the absence of any ethical or legal constraints becomes a license to defame.

JUSTICES POLLOCK, GARIBALDI and JUDGE MICHELS join in JUSTICE O'HERN's opinion. JUSTICE HANDLER filed a separate Dissenting opinion in which the CHIEF JUSTICE and JUSTICE STEIN join. JUSTICE COLEMAN did not participate.

O'HERN, J.

Plaintiff alleges that in the course of her personal injury action against two motorists, she was subjected to repeated indignities by private investigators acting on behalf of an insurance company and a law firm representing one of the motorists. The Appellate Division has ordered a trial to determine whether defendants intentionally inflicted emotional distress on plaintiff, and whether defendants invaded plaintiff's privacy. The Appellate Division was divided on one issue, which is the subject of this appeal. The question is whether the absolute privilege accorded to statements made by participants in judicial proceedings extends to statements made by private investigators employed by the parties or their representatives. We agree with the majority of the Appellate Division panel that the absolute privilege does extend to statements made by private investigators. We affirm the judgment below.

I

Because the case arises on the defendants' motions for summary judgment, we may accept as true the facts as set forth in plaintiff's papers. On July 1, 1987, plaintiff, Linda Hawkins, had an automobile accident, which left her physically and mentally disabled. On July 14, 1987, Mrs. Hawkins was involved in another automobile accident, which worsened her condition. She filed lawsuits against the two responsible motorists. The two cases were consolidated for discovery and trial. A jury returned a verdict in favor of Mrs. Hawkins for approximately $435,000. Thereafter, the motorists in the underlying action settled the case for $350,000.

On April 10, 1991, plaintiff filed a seven-count complaint against various attorneys, insurance companies, and investigators involved in the underlying litigation. We shall refer to them as the lawyer-defendants, the insurer-defendants, and the investigator-defendants. The insurer-defendants were the insurers of the various defendants in the automobile accident case. The lawyer-defendants were attorneys for one of the motorists in the underlying case. The lawyer-defendants and insurer-defendants had hired the investigator-defendants -- Search Investigations, Inc., and Alex Toia -- to gather information about the accidents and the consequential damages claimed by plaintiff. Plaintiff's complaint included allegations that the investigator-defendants defamed her during their investigation.

All defendants moved to dismiss plaintiff's complaint for failure to state a cause of action. Plaintiff moved to amend her complaint. Judge Yanoff dismissed the complaint and denied plaintiff's motion to amend. Thereafter, Judge Loftus signed an order granting the plaintiff leave to amend her complaint. When defendants notified Judge Loftus of Judge Yanoff's previous denial of the motion to amend, Judge Loftus vacated her order.

The Appellate Division clarified plaintiff's right to file an amended complaint and reversed the trial court's dismissal of plaintiff's claims for invasion of privacy, negligent infliction of emotional distress, and conspiracy. The Appellate Division affirmed the trial court's dismissal of plaintiff's other claims. One member of the Appellate Division panel Dissented from the part of the decision affirming the dismissal of plaintiff's defamation claims against the investigator-defendants. He found three allegations in the amended complaint especially troubling: (1) investigator-defendants contacted an attendant at Mrs. Hawkins' health club and asked him how long he had been having an affair with her; (2) investigator-defendants twice contacted Mrs. Hawkins' minister and informed him that she and her husband were committing insurance fraud; and (3) investigator-defendants contacted Mrs. Hawkins' housekeeper and asked her how much money Mrs. Hawkins was paying her to lie.

Those words, portraying plaintiff as an unfaithful spouse, insurance cheat, and as a suborner of perjury, could amount to actionable defamation unless privileged. The Dissenting member of the panel acknowledged that lawyers are given an absolute immunity for statements made in the course of judicial proceedings so that they may exercise unfettered judgment in their clients' interest. Nevertheless, he would "limit investigators to the benefit of a qualified privilege, holding them responsible for otherwise defamatory language if the [investigator] knows the statement to be false, or utters it in reckless disregard of its truth or falsity." Plaintiff appeals to us as of right on the basis of the Dissent below. The only issue before us, then, is whether the investigator-defendants' statements were absolutely privileged.

II

Although defamatory, a statement will not be actionable if it is subject to an absolute or qualified privilege. A statement made in the course of judicial, administrative, or legislative proceedings is absolutely privileged and wholly immune from liability. That immunity is predicated on the need for unfettered expression critical to advancing the underlying government interest at stake in those settings.

[Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539, 563, 569 A.2d 793 (1990) (citations omitted).]

The trouble with privileges is that they are granted to good and bad alike. A legislator has an absolute privilege on the floor of a chamber to revile, to defame, or to distort the truth. Invoking the Speech and Debate Clause, U.S. Const. art. I, ยง 6, a lawmaker may use this provision "as a cloak of immunity from prosecution while he [is] smearing the reputations and characters of American citizens whom the Bill of Rights [had] been designed to protect." Albert Coates, Preserving the Constitution: The Autobiography of Senator Sam Ervin, 63 N.C. L. Rev. 993, 994 (1985) (book review). We accept such a privilege because it is more important to allow a lawmaker to speak and vote freely on matters of public concern than it is to punish the lawmaker as a rogue. The Speech and Debate Clause protects the integrity of the legislative process ...


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