Downey v. Chutehall Construction Co.

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13-P-819 Appeals Court

CHRISTOPHER DOWNEY & another1 vs. CHUTEHALL CONSTRUCTION CO.,
LTD.; THE FOLLETT COMPANY, INC., third-party defendant.

No. 13-P-819.

Suffolk. September 15, 2014. - November 13, 2014.

Present: Berry, Kafker, & Carhart, JJ.

Libel and Slander. Consumer Protection Act, Unfair or deceptive
act. Privileged Communication. Evidence, Opinion,
Privileged communication. Practice, Civil, Summary
judgment, Entry of judgment.

Civil action commenced in the Superior Court Department on
July 2, 2010.

A motion for partial summary judgment was heard by Judith
Fabricant, J., and entry of final and separate judgment was
ordered by her.

John D. Fitzpatrick for Chutehall Construction Co., Ltd.
Heather Gamache for The Follett Company, Inc.

KAFKER, J. Homeowners Christopher and Mairead Downey (the

Downeys) hired a contractor, The Follett Company, Inc.

(Follett), to investigate the cause of their leaky roof.

1
Mairead Downey.
2

Follett reported that the roof had been installed a number of

years earlier over fiberboard roof insulation that was soaking

wet, thereby causing the later leakage. The Downeys then sued

the installer of the roof, Chutehall Construction Co., Ltd.

(Chutehall), for substandard workmanship, and Chutehall brought

third-party defamation and G. L. c. 93A claims against Follett,

asserting that the statement about installing the roof over the

soaking wet fiberboard insulation was false and defamatory. A

Superior Court judge granted Follett's motion for summary

judgment on Chutehall's claims against Follett. Follett then

filed a motion for the entry of a separate and final judgment

pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), which

Chutehall opposed. The judge allowed Follett's motion, judgment

entered, and this appeal followed.

On appeal, Chutehall argues that the judge erred in

deciding as a matter of law (1) that Follett's report about the

roof constituted a statement of opinion not fact, (2) that

Follett was not negligent in making the statement, and (3) that

the statement was protected by a conditional privilege.

Chutehall also argues that the judge erred in allowing the

motion for entry of separate and final judgment. We conclude

that the statement by Follett was protected by a conditional

privilege that was not abused, and therefore, summary judgment

was properly allowed on the defamation claim. As the c. 93A
3

claim depends on the merits of the defamation claim, summary

judgment was properly allowed on this claim as well. There was

no error in the entry of judgment pursuant to Mass.R.Civ.P.

54(b).

1. Background. In 2005, the Downeys entered a contract

with Chutehall pursuant to which Chutehall installed a new

rubber roof system on the Downeys' townhouse in the Beacon Hill

section of Boston. In 2009, another contractor, hired by the

Downeys to install a rooftop heating, ventilation, and air

conditioning (HVAC) unit for their home, cut a hole in the roof

and discovered that the underlying roof system was wet. At the

contractor's suggestion, the Downeys engaged Follett and J.M.

Lydon Corp. (Lydon), both roofing contractors, to inspect the

roof. In addition, the Downeys hired Gregory R. Doelp, a

structural engineer, to evaluate the roof and any proposals

submitted by Follett and Lydon. After Follett, Lydon, and Doelp

performed their on-site investigations of the roof, the Downeys

requested that they each prepare written findings of their

observations. Specifically, the Downeys requested that Follett

help them understand why the roof was wet and what had caused

the leakage problems. Follett's written report, titled "Roof

Observations," stated, "This roof was installed over a EPDM roof

system that had fiberboard roof insulation that was soaking

wet." Follett recommended that the entire roofing system be
4

removed and replaced. The Downeys ultimately hired Follett to

carry out this recommendation.

In 2010, the Downeys filed a complaint in Superior Court

against Chutehall to recover damages to their townhouse

allegedly caused by substandard roofing work performed by

Chutehall in 2005. In response to the Downeys' lawsuit,

Chutehall asserted third-party claims against Follett for

defamation and violation of G. L. c. 93A, alleging Follett's

statement that the roof was installed over wet insulation was

false and defamatory.2 Chutehall's c. 93A claim is based

entirely on its allegation of defamation. On Follett's motion

for summary judgment, the Superior Court judge ruled that the

alleged defamatory statements were not statements of fact, but

of Follett's professional opinion, that the statements were not

negligently made, and that, in any event, they were

conditionally privileged. The judge further ruled that because

Chutehall's c. 93A claim rested entirely on the allegation of

defamation, that claim must fail as well. A separate and final

2
Originally, Chutehall's defamation claim was based on two
statements: the statement made by Follett in the "Roof
Observations" report, and a written statement made by
Christopher Downey in a prelitigation demand letter to
Chutehall, in which Downey wrote that Follett "noted that the
roofing workmanship was in fact poor and substandard."
Chutehall has waived the issue of this second statement on
appeal, and the only statement we considered is Follett's
written statement.
5

judgment entered pursuant to Mass.R.Civ.P. 54(b), and Chutehall

filed a timely notice of appeal.

2. Discussion. The defendant must prevail on its motion

for summary judgment "if [it] demonstrates, by reference to

material described in Mass. R. Civ. P. 56 (c), unmet by

countervailing materials, that the [plaintiff] has no reasonable

expectation of proving an essential element of [its] case."

Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716

(1991). "A complete failure of proof concerning an essential

element of the [plaintiff's] case renders all other facts

immaterial." Id. at 711. We view the evidence in the light

most favorable to the nonmoving party. See Currier v. National

Bd. of Med. Examiners, 462 Mass. 1, 11 (2012); Dragonas v.

School Comm. of Melrose, 64 Mass. App. Ct. 429, 430 (2005).

a. Chutehall's defamation claim. In order for Chutehall

to recover on its defamation claim, it must establish that (1)

Follett published a defamatory statement of and concerning

Chutehall; (2) the statement was a false statement of fact (as

opposed to opinion); (3) Follett was at fault for making the

statement and any privilege that may have attached to the

statement was abused; and (4) Chutehall suffered damages as a

result, or the statement was of the type that is actionable

without proof of economic loss. See Stone v. Essex County

Newspapers, Inc., 367 Mass. 849, 858-859 (1975); Phelan v. May
6

Dept. Stores Co., 443 Mass. 52, 55-56 (2004); Restatement

(Second) of Torts §§ 558, 599, 600 (1977).

i. Distinction between opinion and fact. To determine

whether the statement in question is defamatory, the court must

decide whether it is an assertion of fact or opinion. The

distinction is often subtle and difficult, particularly at the

summary judgment stage. King v. Globe Newspaper Co., 400 Mass.

705, 709 (1987), cert. denied, 485 U.S. 940 and 485 U.S. 962

(1988), quoting from Janklow v. Newsweek, Inc., 788 F.2d 1300,

1302 (8th Cir.), cert. denied, 479 U.S. 883 (1986) ("It is hard

to draw a bright line between 'fact' and 'opinion'"). The

determination is considered a question of law only when it is

unambiguous. See ibid. See also Driscoll v. Board of Trustees

of Milton Academy, 70 Mass. App. Ct. 285, 296 (2007); Gray v.

St. Martin's Press, Inc., 221 F.3d 243, 248 (1st Cir. 2000),

cert. denied, 531 U.S. 1075 (2001). In contrast, "the

determination whether a statement is a factual assertion or a

statement of pure opinion is a question of fact if the statement

reasonably can be understood both ways." King v. Globe

Newspaper Co., supra. See Aldoupolis v. Globe Newspaper Co.,

398 Mass. 731, 733-734 (1986). Therefore, in a defamation

action, "the defendant is entitled to summary judgment if the

challenged statement cannot reasonably be construed as a

statement of fact." King v. Globe Newspaper Co., supra.
7

"However, if a statement is susceptible of being read by a

reasonable person as either a factual statement or an opinion,

it is for the jury to determine." Aldoupolis v. Globe Newspaper

Co., supra.

In determining whether an assertion is a statement of fact

or opinion, "the test to be applied . . . requires that the

court examine the statement in its totality in the context in

which it was uttered or published. The court must consider all

the words used, not merely a particular phrase or sentence. In

addition, the court must give weight to cautionary terms used by

the person publishing the statement. Finally, the court must

consider all of the circumstances surrounding the statement,

including the medium by which the statement is disseminated and

the audience to which it is published." Cole v. Westinghouse

Bdcst. Co., 386 Mass. 303, 309, cert. denied, 459 U.S. 1037

(1982), quoting from Information Control Corp. v. Genesis One

Computer Corp., 611 F.2d 781, 784 (9th Cir. 1980).

We do not consider this assertion an unambiguous statement

of opinion appropriate for summary judgment. The defamatory

statement on its face appears directly and definitively factual.3

"This roof was installed over a EPDM roof system that had

fiberboard roof insulation that was soaking wet." Importantly,

3
In his deposition, Follett states that it would have been
"impossible" for the insulation not to have been wet when the
roof was installed. See part 2.a.iii, infra.
8

in contrast to statements of opinion, statements that present or

imply the existence of facts that can be proven true or false

are actionable. See Levinsky's, Inc. v. Wal-Mart Stores, Inc.,

127 F.3d 122, 127 (1st Cir. 1997), citing Milkovich v. Lorain

Journal Co., 497 U.S. 1, 18-19 (1990); Gray v. St. Martin's

Press, Inc., 221 F.3d at 248, also citing Milkovich, supra at

18-20. Here, Follett stated that the Downeys' roof had been

installed over wet insulation. This appears to be an assertion

of fact that, at least in theory, could be verified as either

true or false.4

Nevertheless, as the motion judge pointed out, the

installation of the roof was done four years earlier when

Follett was not present, and thus the motion judge concluded

that the statement "can reasonably be understood only as an

expression of Follett's professional judgment, based on its

observations at the time it examined the roof." The published

statement is not, however, in any way introduced as an

expression of opinion. See, e.g., Information Control Corp. v.

Genesis One Computer Corp., 611 F.2d at 784 (statement

"cautiously prefaced as representing 'the opinion of . . .

management'"). Nor is the statement expressly qualified or

limited as being based on the results of particular

4
In Doelp's deposition, for example, he stated that he
could have figured out why the insulation was wet but was never
asked to make that determination. See part 2.a.iii, infra.
9

observations. See Restatement (Second) of Torts § 566 comment c

& illustration 4 ("A writes to B about his neighbor C: 'He

moved in six months ago. He works downtown, and I have seen him

during that time only twice, in his backyard around 5:30 seated

in a deck chair with a portable radio listening to a news

broadcast, and with a drink in his hand. I think he must be an

alcoholic.' The statement indicates the facts on which the

expression of opinion was based and does not imply others.

These facts are not defamatory and A is not liable for

defamation"). Finally, the audience, i.e., ordinary homeowners,

could, we conclude, reasonably be expected to understand

Follett's statement as one of determined fact and not just a

qualified opinion, despite their understanding that Follett did

not personally observe the installation. See Cole v.

Westinghouse Bdcst. Co., 386 Mass. at 309.

In sum, although it is a close question, we conclude that

the unqualified factual assertion here, which might have been

proven true or false, could reasonably be construed as a

defamatory statement of fact. Summary judgment should not have

been granted on the ground that it was an unambiguous opinion.

We therefore turn to the questions of fault and privilege.

ii. Demonstration of fault. Private persons or entities

may recover on defamation claims on proof that the defendant was

negligent in publishing defamatory statements, which reasonably
10

could be interpreted to refer to the plaintiff, assuming proof

of all other elements of a claim for defamation has been

provided. See Stone v. Essex County Newspapers, Inc., 367 Mass.

at 858; New England Tractor-Trailer Training of Conn., Inc. v.

Globe Newspaper Co., 395 Mass. 471, 477 (1985). If, however, a

conditional privilege applies to the communication, negligence

is not enough, as at least recklessness is required. See Bratt

v. International Bus. Machs. Corp., 392 Mass. 508, 514 (1984).

We turn to the privilege issue next, as we consider it

dispositive in the instant case.

iii. Conditional privilege. "The burden is on the

defendant[] to prove, when the issue is properly raised, the

existence of a privilege to publish a defamatory communication."

Jones v. Taibbi, 400 Mass. 786, 802 (1987). Where, as here, a

defendant in a defamation action establishes the existence of a

privilege, the burden rests upon the plaintiff to raise a trial-

worthy issue of an abuse of that privilege. See Judd v.

McCormack, 27 Mass. App. Ct. 167, 173 (1989); Dragonas v. School

Comm. of Melrose, 64 Mass. App. Ct. at 438. In this case, this

would require Chutehall to have introduced sufficient evidence

to establish that Follett published the statements recklessly.

Based on our review of the record, we conclude that Chutehall's

defamation claim failed as a matter of law because the statement
11

is conditionally privileged, and there is no genuine issue of

material fact regarding recklessness.

Under Massachusetts law, a publication will be deemed

conditionally privileged if the publisher of the statement and

the recipient have a common interest in the subject and the

statement is "reasonably calculated to further or protect that

interest." Sheehan v. Tobin, 326 Mass. 185, 190-191 (1950)

(citation omitted). See Humphrey v. National Semiconductor

Corp., 18 Mass. App. Ct. 132, 133 (1984) (privilege applies to

employee of one company making disparaging comments about

performance of employee of another company with which first has

business relationship); Flotech, Inc. v. E.I. Du Pont de Nemours

& Co., 814 F.2d 775, 778 (1st Cir. 1987) (privilege applies to

company's statement that it views its own product as ineffective

for particular purpose even if statement implies ineffectiveness

of third party's product); Restatement (Second) of Torts § 596.

The courts have consistently recognized the common interest

privilege within the business context. See Bratt v.

International Bus. Machs. Corp., 392 Mass. at 512-513

("Massachusetts courts have recognized that a person may possess

a conditional privilege to publish defamatory material if the

publication is reasonably necessary to the protection or

furtherance of a legitimate business interest"); Humphrey v.

National Semiconductor Corp., supra at 133-134.
12

Despite Chutehall's assertions to the contrary, Follett's

statement involved a common business interest between Follett

and the Downeys, i.e., the evaluation of the likely source of

the roof's leak so that repairs could be made. Follett's

statement furthered this common business interest as it affected

the Downeys' decision on how they should proceed in addressing

the roof's leakage. Additionally, the statement was made in

Follett's professional capacity and only after the Downeys

specifically requested Follett to explain the source of the

leak. The exchange between Follett and the Downeys is assuredly

of the type contemplated by the privilege, and to claim

otherwise would rob the privilege of its intended purpose.

This conclusion is supported by case law from other

jurisdictions as well. As seen in Briggs v. Newton, 984 P.2d

1113, 1121 (Alaska 1999), the common business interest privilege

was applied to a statement made by a contractor to his client

regarding the work of prior contractors. The Alaska Supreme

Court emphasized that the business privilege is "clearest when a

legal relationship exists between the defendant and the person

on whose behalf" he is making the contested statement, and the

communication serves the purposes of that legal relationship.

Ibid. (citation omitted). In Briggs, as in the instant case,

the defendant and his client had a contractual relationship

related to the need for repair work on the house, and the
13

communication was included in a document that was designed to

explain the need for such repair work.

Moreover, nothing in the record suggests that this

conditional privilege was forfeited by Follett. Massachusetts

case law maintains that a publisher may abuse, and lose, a

conditional privilege in a number of ways, including if the

plaintiff offers proof that the defendant (1) acted out of

malice, (2) knew the information was false, (3) had no reason to

believe the information to be true, (4) acted in reckless

disregard of the truth or the defendant's rights, or (5)

published the information unnecessarily, unreasonably, or

excessively. See Bratt v. International Bus. Machs. Corp., 392

Mass. at 513-515; Dragonas v. School Comm. of Melrose, 64 Mass.

App. Ct. at 438-439. As underscored by the Supreme Judicial

Court, "whatever the manner of abuse, recklessness, at least,

should be required" to overcome the privilege. Bratt v.

International Bus. Machs. Corp., supra at 515. See Dexter's

Hearthside Restaurant, Inc. v. Whitehall Co., 24 Mass. App. Ct.

217, 223 (1987) ("Recklessness is the minimum level of

misconduct"). Negligence is not enough to cause the loss of the

privilege.

Recklessness is a difficult standard to meet. "[R]eckless

conduct is not measured by whether a reasonably prudent man

would have published or would have investigated before
14

publishing." HipSaver, Inc. v. Kiel, 464 Mass. 517, 530 (2013),

quoting from St. Amant v. Thompson, 390 U.S. 727, 731 (1968).

Rather, the defendant's conduct is measured by what the

defendant had reason to believe. See Foley v. Polaroid Corp.,

400 Mass. 82, 95-96 (1987). "There must be sufficient evidence

to permit the conclusion that the defendant in fact entertained

serious doubts as to the truth of his publication." HipSaver,

Inc. v. Kiel, supra. Cf. Garrison v. Louisiana, 379 U.S. 64, 74

(1964) (equating "reckless disregard" with "high degree of

awareness of . . . probable falsity").

Follett's deposition, through its designee, Donald Follett,

demonstrates that he undertook an investigation before

proffering the conclusion that the most recently installed roof

had been put in over wet insulation. Donald Follett conducted

two on-site inspections of the roof and made several test cuts

in the roofing system. He determined that the top roof membrane

and insulation was dry but the underlying roof materials were

soaking wet. He also concluded that the wetness at the higher

elevations was consistent with the wetness at the lower areas.

He stated that at the very top area of the roof there were "no

penetrations for water to get in." These test cuts and

observations led him to conclude that the uppermost roofing

system had been installed over wet insulation. Indeed he stated

at his deposition that "it would have been impossible that that
15

roof . . . insulation was not wet" when the roof was installed.

He described himself as "convinced," so much so that once he

made the test cuts, he did not do further investigation

regarding leaks.

Similarly, the facts led Lydon, the other roofing

contractor that examined the Downeys' roof, to conclude, "This

roof would be adequate if it was not installed over a wet roof."

Doelp, the engineer hired by the Downeys to evaluate the roof

and the repair proposals made by Follett and Lydon, testified

that Follett's conclusion was plausible, and that Donald

Follett, a roofer, would be in a "better position than I would

be to make that judgment."

Doelp did, however, acknowledge some uncertainty. Based on

his own investigation, Doelp testified that he could not be sure

Chutehall's 2005 work on the Downeys' roof was the source of the

leakage problems, as he had also identified other potential

sources of the wetness of the insulation and leakage. He noted,

for example, that there were potential leak problems around the

head house, chimney, and metal parapet. He further stated that

the water "could have been there when they put the roof over.

[But] [i]t could have happened later." He did not know. He

speculated that he "could figure that out, but . . . was never

asked to do that."
16

The record here does not support a finding of recklessness.

The facts at Follett's disposal provided solid reasons to

believe the statement it made to the Downeys. Donald Follett

testified that he was firmly convinced by his investigation.

Although there is a question whether Follett should have done

more to investigate the source of the leak, and that leads to

some uncertainty about the correctness of its conclusions, in

the absence of any evidence that Follett "entertained serious

doubts as to the truth of [the] publication," HipSaver, Inc. v.

Kiel, 464 Mass. at 530, Chutehall has failed to demonstrate a

genuine issue of material fact regarding recklessness. The

judge did not err in allowing Follett's motion for summary

judgment on Chutehall's defamation claim.

b. The G. L. c. 93A claim. As conceded by Chutehall, its

G. L. c. 93A claim is based on the alleged defamatory statements

made by Follett. Accordingly, this claim rises or falls on the

outcome of the defamation claim. Dulgarian v. Stone, 420 Mass.

843, 853 (1995) ("[W]here allegedly defamatory statements do not

support a cause of action for defamation, they also do not

support a cause of action under G. L. c. 93A"). Therefore, the

trial judge properly allowed Follett's motion for summary

judgment on Chutehall's G. L. c. 93A claim.

c. Final and separate judgment. Under Mass.R.Civ.P.

54(b), "the court may direct the entry of a final judgment as to
17

one or more but fewer than all of the claims or parties . . .

upon an express determination that there is no just reason for

delay and upon an express direction for the entry of judgment."

"Whether there are multiple claims in an action and whether

those claims have been finally adjudicated are matters of law

subject to plenary review by an appellate court." Long v.

Wickett, 50 Mass. App. Ct. 380, 386 (2000). "The determination

of the presence or absence of a just reason for delay, on the

other hand, is left to the sound discretion of the trial judge

and is subject to reversal only for an abuse of that

discretion." Ibid. The record supports the trial judge's

decision that there was no just reason for delay given that

Chutehall's claims against Follett were independent of the

claims between Chutehall and the Downeys.5 We decline to vacate

the entry of separate and final judgment.

3. Conclusion. For the reasons discussed above, the judge

did not err in allowing Follett's motion for summary judgment on

Chutehall's defamation and c. 93A claims or in entering a

separate and final judgment as to those claims.

Judgment entered January 22,
2013, pursuant to
Mass.R.Civ.P. 54(b)
affirmed.

5
Although not argued by the parties, we also note that the
issue may be moot, as the remaining claims between Chutehall and
the Downeys have proceeded to judgment.