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02/24/95 DONALD SCHRIMSHER v. LIBERTY NATIONAL LIFE

February 24, 1995

DONALD SCHRIMSHER
v.
LIBERTY NATIONAL LIFE INSURANCE COMPANY AND JOSEPH CAMPBELL



Appeal from Madison Circuit Court. (CV-92-989). William D. Page, Trial Judge.

Released for Publication June 25, 1995.

Almon, Houston, Ingram, Cook, and Butts, JJ., concur. Maddox, J., concurs specially Shores, J., recused.

The opinion of the court was delivered by: Almon

ALMON, JUSTICE.

Donald Schrimsher appeals from a summary judgment in favor of Liberty National Life Insurance Company and Joseph Campbell in Schrimsher's action alleging defamation. The issue is whether the alleged defamatory statements made by a manager for Liberty National to agents of the company were published, and, if published, whether they were conditionally privileged.

Donald Schrimsher was an insurance agent for Liberty National in the Huntsville, Alabama, office. Schrimsher's duties included selling, collecting on, and servicing insurance contracts. Schrimsher reported to his immediate supervisor, Mark Allen, who was a sales manager for Liberty National; and to Joe Campbell, the district manager in the Huntsville office.

In September 1990, while Schrimsher was out of town on vacation, Allen went to Schrimsher's home and obtained Schrimsher's policy collection book, which contained information about the policies and accounts Schrimsher serviced. In reviewing the policy collection book, Allen discovered an apparent $250 deficiency between the amount Schrimsher had collected and the amount he had remitted to Liberty National.

Liberty National offered evidence that it has a strict company policy by which agents will be terminated if there is a deficiency. Pursuant to this policy Schrimsher was terminated from his agency relationship with Liberty National, during the week of September 15, 1990. According to the affidavit of Brent Duncan, an agent of Liberty National, on Monday September 17, before Schrimsher had returned from vacation, Campbell told Duncan that Schrimsher had been terminated for "misappropriating or stealing company funds." Duncan says that Campbell made this statement in the Liberty National office before Schrimsher returned from vacation and before Schrimsher had been notified of his termination. Duncan's affidavit further stated that he was not in a managerial or secretarial role with Liberty National and that he was a co-worker with Schrimsher. There was also evidence that before Schrimsher returned from vacation Campbell told several other agents of Schrimsher's alleged misappropriation.

After Schrimsher filed his defamation action against Liberty National and Campbell, both defendants moved for a summary judgment, asserting that the statements either were not published or were conditionally privileged. The circuit court entered a summary judgment, holding that Campbell's statements were conditionally privileged communications and that Schrimsher had failed to present substantial evidence of actual malice after the defendants had made a prima facie showing of the lack of a genuine issue as to any material fact.

This Court recently addressed the issues of publication and the conditional privilege as they relate to defamation actions brought against corporate defendants. Cantrell v. North River Homes, Inc., 628 So. 2d 551 (Ala. 1993). In Cantrell, we considered whether statements made by an agent of a corporation to other employees were published and whether they were privileged communications.

"'To establish a prima facie case of defamation, the plaintiff must show that defendants published a false and defamatory statement concerning the plaintiff to a third person. Statements made subject to a qualified [or conditional] privilege are not actionable unless the plaintiff can prove that the defendant acted with malice.

"'....

"'... communication may be conditionally privileged if it is one in which the party has an interest, and is made to another having a corresponding interest. More specifically, this Court has held that communications among employees in the course of transacting the company's business and in ...


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