J. Kent Holland
ConstructionRisk, LLC

A homeowner hired a firm to investigate the cause of their leaky roof, and based on the investigator’s report that the roof had been installed over soaking wet fiber-board roof insulation, the homeowner sued the roof installer, who in turn brought a third-party defamation claim against the investigator, asserting that his statement concerning the installation of the roof was false and defamatory. Motion for summary judgment was granted for the investigator and affirmed on appeal, on the basis that the statement was conditionally privileged and the investigator did not act with reckless disregard for the truth so as to waive the privilege. Downey v. Chutehall Construction, 19 N.E. 3d 470 (Mass. 2014).

Were thees statements of “fact” or “opinion”?  The contractor argued that the report about the roof did not constitute an “opinion” that was entitled to protection, but instead contained “statements of fact.” The trial court judge ruled that the alleged defamatory statements were not statements of facts but were professional opinions, were not negligently made, and were protected by conditional privilege.

The appellate court reviewed the language of the report to determine whether it contained factual statements or opinion conclusions. The court explained, “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…. [ ] In a defamation action, ‘the defendant is entitled to summary judgment if the challenged statement cannot reasonably be constructed as a statement of fact.’ ‘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.’” In other words, summary judgment would have to be denied so that a jury could consider the details of the report and decide if it contains statements of “fact” or “opinion.”

Based on the statement in the report here, however, the appellate court held the trial court erred in finding it was opinion instead of fact. The statement in question in the report was, “This roof was installed over a EPDM roof system that had fiberboard roof insulation that was soaking wet.” As stated by the court, “Here, [investigator] stated that the [ ] 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.”

For this reason, the appellate court concluded, “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.” The published statement by the investigator was not, according to the court, “in any way introduced as an expression of opinion.” “Nor was the statement expressly qualified or limited as being based on the results of particular observations.”

Thus, the court concluded, “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.” Therefore, summary judgment should not have been granted on the basis that the statement was “opinion” and not a statement of fact. The court went on, however, to uphold the summary judgment for other reasons.

Conditional Privilege Applied.  The investigator had been hired to investigate the cause of the leak and report its findings to the homeowner, which is exactly what he did, and the statements in his report were deemed to be “conditionally privileged.” The court found the statement involved a “common business interest” between the homeowner and investigator, “i.e., the evaluation of the likely source of the roof’s leak so that repairs could be made.” [The] statement furthered this common business interest as it affected [homeowner’s] decision on how they should proceed in addressing the roof’s leakage.

Where such conditional privilege applies to the communication, the privilege survives even if there was negligence on the part of the investigator. It would only be lost if the statement was “recklessly” made. The court found that the contractor failed to introduce sufficient evidence to establish that the investigator published the statements “recklessly.”

Comment: A lesson learned from this decision is the importance in stating professional opinions in a manner that they appear on their face to be “opinions” and not statements of fact.

The investigator in this case is fortunate that the court applied conditional privilege in spite of finding the statement to be a statement of fact rather than opinion. If the statement had been presented as “opinion,” the contractor would have had a higher burden of proof to prevail in a defamation suit.

It is important when issuing reports such as the type involved here to include a description of what was done to evaluate the problem, any assumptions and limitations on what was observed, and language to make it clear that the conclusions are “professional opinions” based on what was observed. Plainly and succinctly state opinions as “opinions” rather than as facts.


About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 18, No. 2 (February 2016).

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