Reinsurance Law Blog : Oklahoma Insurance Lawyer & Attorney : Stauffer & Nathan Law Firm

The 10th Circuit has affirmed the dismissal of a lawsuit against John Grisham and others for the book, The Innocent Man.  The book details the wrongful conviction of Williamson and Fritz for the rape and murder of Debra Sue Carter. Both men were later exonerated after spending over a decade in jail.

(Ok, this isn't an insurance case, but I found it interesting)

The plaintiffs were Oklahoma District Attorney William Peterson; former Shawnee police officer Gary Rogers; and former Oklahoma state criminologist Melvin Hett each of whom played a role in the investigation or prosecution and conviction of Williamson and Fritz. The book did not portray these folks in a positive light, so they sued Grisham and others, claiming defamation, intentional infliction of emotional distress and false light invasion of privacy. The district court dismissed the suit for failure to state a claim and the Tenth Circuit affirmed, finding that since the plaintiffs were public officials, any statements critical of them were privileged, so long as there was no accusation of criminal activity.  

Because no special damages were claimed, the plaintiffs had to allege libel per se; but 12 OS § 1443.1 applied because the plaintiffs were public officers and states that “[a]ny and all criticisms upon the official acts of any and all public officers” are privileged and cannot be considered libelous, unless a defendant makes a false allegation that the official engaged in criminal behavior. To fall into this category, “the words alleged to have been spoken of the plaintiff, when taken in their plainest and most natural sense, and as they would be ordinarily understood, [must] obviously import the commission of crime punishable by indictment.”

 

The court states: 

Plaintiffs point to no statement in which defendants directly accuse any plaintiff of a crime.

Plaintiffs expect us to scale a mountain of inferences in order to reach the conclusion that defendants’ statements impute criminal acts to plaintiffs and render the statutory privilege of § 1443.1 inapplicable. We decline to engage in such inferential analysis, or to take a myriad of other analytical leaps plaintiffs ask us to make. Any connection between defendants’ statements and an accusation of criminal activity is far too tenuous for us to declare them as unprivileged for purposes of § 1443.1.

Since the statements were privileged for defamation purposes, the court found them privileged for claims of intentional infliction of emotional distress and for false light invasion of privacy.

See, Peterson v. Grisham

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While the insurer had waived certain privileges relating to the settlement of the underlying claim, based on the insurer’s concession that it would not advance an advice of counsel defense, the waiver would not be expanded to include all privileged communications and work product of the insurer’s attorneys.  The decision clarifies a prior decision which found a waiver of attorney client privileges related to the settlement of underlying asbestos claims. 

Previously, the court found that USF&G waived the attorney-client privilege as to communications between its officer, James Kleinberg, and Robert Omrod, the in-house lawyer whose advice Kleinberg disclosed at his examination before trial regarding preparation of the reinsurance billing.

“During the testimony of Kleinberg, many questions were asked regarding USF&G's decision to allocate all claims to a single treaty year as opposed to spreading them over the several coverage years. This witness repeatedly revealed the advice he received regarding preparation of the bill. Consequently, he placed this matter at issue,” the panel concluded. “Therefore, the Reinsurers may seek testimony and production of documents regarding presentation of the reinsurance claim . . .  only to the extent that the discovery relates to disclosures made during James Kleinberg's examination before trial testimony.”

The reinsurers urged a broad subject matter waiver, but USF&G asserted that it did not intend to advance an “advice of counsel” defense. Citing Kirschner v. Klemons (2001 WL 1346008, 2001 S.D.N.Y.), the court ruled that in light of USF& G's representation, there is no need to expand the waiver.

“However, the scope of the waiver is narrowed in reliance on USF & G's representation that ‘advice of counsel’ is not at issue,” the court concluded. “Accordingly, the court should strictly enforce this disclaimer at trial, and USF&G should not be permitted to raise this defense to Reinsurers' claims.”

In its Dec. 8 order, the court clarified that its citation to Kirschner “ought to have made it clear that, based on cedant's representation that it did not intend to use ‘advice of counsel’ as a defense, our finding of waiver did not extend to cedant's communications with any other attorneys concerning this subject matter.”

'In view of cedant's concession, however, that it will not raise the “advice of counsel” defense and make any reference to attorney-client communications by cedant at the trial, we agree that the court should not permit cedant to raise this defense to reinsurers' claims, or refer to any such communications,” the court ruled.

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