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Harvey v. Krouse

Court of Appeals of Louisiana, Fourth Circuit

April 18, 2018

ROBERT G. HARVEY, SR.
v.
ALLEN J. KROUSE, III

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-12611, DIVISION "C" Honorable Sidney H. Cates, Judge

          Donald C. Douglas, Jr. THE DOUGLAS LAW FIRM, LLC COUNSEL FOR PLAINTIFF/APPELLANT

          Gus A. Fritchie, III Edward W. Trapolin IRWIN FRITCHIE URQUHART & MOORE, LLC COUNSEL FOR DEFENDANT/APPELLEE, ALLEN J. KROUSE, III

          Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Dennis R. Bagneris, Pro Tempore)

          Dennis R. Bagneris, Pro Tempore Judge

          Appellant, Robert G. Harvey, Sr. ("Harvey"), appeals the judgment of the district court granting summary judgment in favor of defendant, Allen J. Krouse, III ("Krouse"), and dismissing the defamation claims filed by Harvey against Krouse. For the reasons that follow, we find that the judgment of the district court should be affirmed.

         FACTUAL AND PROCDURAL BACKGROUND

         This matter stems from a personal injury suit filed following an automobile accident in December 2014 in which Appellant, Harvey, represented the plaintiff, Antoine M. Saacks, Jr. ("Saacks").[1] The lawsuit was filed in state court and removed to federal court. Appellee, Krouse, represented the insurance company defendant, Privilege Underwriters Reciprocal Exchange ("PURE"). Following discovery of medical records which suggested to PURE that the plaintiffs claim may have been fraudulent, on December 20, 2016, PURE, through Krouse, sought leave to file an amended answer that alleged, inter alia, that "suspicious circumstances in this case show Plaintiff's intent to defraud PURE in his uninsured motorist claim for . . . the accident of December 30, 2014." While the allegations of the amended answer touch on a wide range of alleged failures by Saacks to cooperate with PURE in its claim investigation, they center on the fact that following the accident, in his recorded statement to PURE, Saacks explicitly and unequivocally denied ever having received treatment for his neck or back; however, PURE alleged that subsequent discovery revealed that he had received extensive prior treatment for these injuries, and had brought three prior personal injury lawsuits for similar or even identical injuries, and was represented by Harvey in two of them.

         With respect to Harvey, the sole specific allegation states that "at the time PURE requested relevant medical records from [Saacks] concerning his alleged injuries from the December 30, 2014 accident, both [Saacks] and his attorney, Harvey, knew of the existence of these prior lawsuits and pre-existing injuries, " that Harvey represented Saacks in two of the prior cases (Spruell and Hawkes), and that despite their knowledge, Saacks and Harvey failed to tender the requested relevant medical records and concealed the lawsuits involving the same injuries Saacks claimed he sustained on December 30, 2014. Amended Answer, ¶ 7.

         On December 27, 2016, Harvey moved to strike the amended answer and for Federal Rule 11 sanctions against Krouse, and on December 28, 2016, filed the instant defamation suit against Krouse and PURE alleging that the statements made by Krouse in the amended answer were defamatory per se, untrue, and made without any probable cause. Subsequent to the filing of the instant defamation suit, on January 18, 2017, the United States Magistrate Judge denied both Harvey's motion to strike and Rule 11 sanctions request, specifically finding that "the amendment was sought simply to conform the pleadings to the evidence that ha[d] been revealed through discovery."

         On January 27, 2017, PURE removed the defamation case to federal court, alleging that Krouse was improperly joined and that diversity jurisdiction was present. However, on March 9, 2017, before an answer was filed, Harvey voluntarily dismissed PURE, leaving Krouse, undisputedly a Louisiana citizen, the sole defendant. Accordingly, the matter was remanded to state court.

         On March 31, 2017, Krouse filed a "Peremptory Exception of No Cause of Action and Alternative Motion for Summary Judgment." Following a hearing on June 23, 2017, the district court granted Krouse's motion for summary judgment in a judgment entered on September 12, 2017. In so ruling, the district court stated that "upon finding that the statements alleged to be defamatory are protected by the qualified privilege provided by LSA-R.S. 14:49(4), and that the statements were not made about plaintiff herein personally, but in his capacity as disclosed agent for his client, which is clear from the Motion for Leave to Amend Answer filed in the Federal Court proceeding: and upon further finding that there is no evidence that the alleged defamatory statements were made with malice, " summary judgment dismissing the claims was granted. This timely appeal followed.

          ISSUES PRESENTED FOR REVIEW

         On appeal, Harvey contends that the district court erred in the following respects: (1) the motion for summary judgment should not have been considered because it was premature; (2) there was no record evidence introduced at the hearing upon which the district court could base his ruling; (3) plaintiff was not and should not have been required to prove malice; (4) defendant's alleged defamatory statements were not ...


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