Irwin v. Cohen , 40 Conn. Super. Ct. 259 ( 1985 )

The plaintiff, James B. Irwin, Sr., brought this action for defamation against the named defendant Gary I. Cohen, an attorney (hereinafter the defendant), and his partners in the law firm of Carmody Torrance. The alleged defamatory statements were contained in a letter sent from the defendant to the plaintiff's former counsel, Paul Smith.

The following facts are not in dispute. The defendant was representing Mrs. Irwin in two disputes with her former husband, the plaintiff herein. One dispute was in arbitration, and involved an employment contract between Mrs. Irwin and Integrated Control Systems, Inc., a company of which Mr. Irwin was President. The other dispute involved a motion by Mr. Irwin for termination of child support for the couple's child, James Irwin, Jr.

During the time the defendant was representing Mrs. Irwin, Attorney Smith sent him a letter captioned, "Irwin v. Irwin."¹ That letter accused Mrs. Irwin of liability for damages caused by an automobile accident in which James Irwin, Jr., was a driver. The automobile was the property of the corporation. In response to that letter, and also captioned "Irwin v. Irwin," the defendant sent Attorney Smith a letter containing the alleged defamatory statements.² The plaintiff claims that the defendant, with malice, published defamatory remarks about him by allowing both the secretaries of the defendant and Attorney Smith to read the letter.

The defendant asserts two special defenses, that the defamatory statements were substantially true, and that the communication was protected by the doctrine of absolute privilege. The defendants filed this motion for summary judgment premised upon the doctrine of absolute privilege.

Summary judgment shall be rendered when the documents submitted demonstrate that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Practice Book § 384; Burns v. Hartford Hospital, 192 Conn. 451,472 A.2d 1257 (1984). Whether the pleadings in the present case raise genuine issues of material fact concerning the nature of the alleged defamatory statements need not be addressed. If the defense of absolute privilege applies, the doctrine of absolute privilege bars an action for defamation. Hassett v. Carroll, 85 Conn. 23,81 A. 1013 (1911).

Section 586 of the Restatement (Second), Torts, states that: "[a]n attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding." Comment c of § 586 states that the privilege ". . . is available only when the defamatory matter has some reference to the subject matter of the proposed or pending litigation, although it need not be strictly relevant to any issue involved in it."

The defendant contends that the communication was in the context of, and had a relation to, an arbitration dispute, a motion to terminate child support, and a threatened action for damages, and therefore, whether defamatory or not, it is absolutely privileged. The plaintiff acknowledges that the communication may be subject to a privilege, but maintains that any possible privilege was abused and lost by the defendant.

The court announced the principles of privilege inHasset v. Carroll, supra, 35, as follows: "The publication of defamatory words may be under an absolute privilege, or under a qualified or conditional privilege.Under the former there is no liability, although defamatorywords are falsely and maliciously published. The class of absolutely privileged communications is narrow, and practically limited to legislative and judicial proceedings, and acts of State." (Emphasis added.) It is only the qualified or conditional privilege that may be abused or lost by malice, improper motive, or bad faith. Wright FitzGerald, Connecticut Law of Torts § 158 (2d Ed. 1968). "From earliest times, this state has recognized that the absolute privilege is to be extended for the protection of those participating in judicial proceedings and `extends to judges, counsel and witnesses.' Blakeslee Sons v. Carroll, 64 Conn. 223,232, 29 A. 473 (1894). The privilege is `. . . founded on public policy, which requires that a judge in dealing with the matter before him, a party in preparing or resisting a legal proceeding, and a witness in giving evidence in a court of justice, shall do so with his mind uninfluenced by the fear of an action for defamation or a prosecution for libel.' Kennedy v. Hilliard, 10 Ir. C.L. Rep., 195. . . .' Id. It is clear that this represents the law in a majority of the jurisdictions. Restatement (Second), Torts, § 587." Magnan v.Anaconda Industries, Inc., 37 Conn. Super. Ct. 38, 43,429 A.2d 492 (1980).

If the court determines that the defendant's communication was absolutely privileged, then the defendant is entitled to summary judgment. In deciding whether an absolute privilege exists, courts determine whether the alleged defamatory statements are sufficiently preliminary to, or during the course of a proposed or continuing judicial proceeding. Annot., 36 A.L.R. 3d 1328.

At the time the alleged defamatory communication was made, the defendant was representing Mrs. Irwin in two disputes. The letter from Attorney Smith was captioned "Irwin v. Irwin" and concerned the subject matter of the two on-going disputes between Mr. and Mrs. Irwin. The alleged defamatory communication was contained in a letter captioned "Irwin v. Irwin," and sent in response to, and referred specifically to, Attorney Smith's letter. Therefore, the alleged defamatory communication was sufficiently preliminary to, or during the course of, a proposed or continuing judicial proceeding.

Accordingly, the defendants' motion for summary judgment is granted.