Summary Judgment Still Possible in Virginia State Court

On October 4, 2012, the Virginia Supreme Court rejected the appeal of a personal trainer, represented by Virginia Beach lawyer Jeremiah A. Denton III, and allowed to stand the summary judgment order entered by the Norfolk Circuit Court against the trainer on her defamation claim. This shows just how serious the Virginia Supreme Court is about the absolute privilege that extends to defamatory statements made in demand letters preliminary to contemplated litigation and sent in good faith. Summary judgment is appropriate if a defamation claim is based on a privileged statement.

Darryl and Julie Cummings were members of the Norfolk Yacht and Country Club (“NYCC”). Deborah Allison, a personal trainer at NYCC and at Norfolk Academy, pursued and entered into a physical relationship with Julie. Darryl reported Addison’s actions to NYCC management. Though the NYCC warned her not to pursue Julie Cummings on NYCC property, Addison disobeyed and was fired. Cummings and his wife ultimately divorced.

Darryl sued Addison for intentional infliction of emotional distress, tortious interference, and professional malpractice. Addison counterclaimed for intentional infliction of emotional distress, tortious interference with norfolk.JPGcontract, tortious interference with a contract expectancy, and defamation. Addison’s claims stemmed from Cummings’ email to the NYCC president, a draft complaint he sent to NYCC’s attorney, and emails he sent to Norfolk Academy’s headmaster.

In the NYCC email, Cummings stated, “The Cummings family did not join the club for an employee to become a predator, stalk, and harass them or for an environment that would encourage this kind of behavior.” Addison claimed this was libel per se but the Court found it mere opinion and therefore not actionable.

Addison also claimed Cummings’ draft complaint defamed her. As the Virginia Supreme Court clarified in June 2012, communications made outside of court but preliminary to proposed judicial proceedings will be absolutely privileged from defamation liability where (1) the statement is made preliminary to a proposed judicial proceeding; (2) the statement is “material, relevant or pertinent” to the proceeding; (3) the proceeding is contemplated in good faith and is under serious consideration; and (4) the communication is disclosed only to persons having an interest in the proposed proceeding.

The court applied an earlier version of this test and found that privilege should apply because the draft complaint had “some relation to a proceeding that is contemplated in good faith and under serious consideration” and because the draft complaint was substantially similar to the actual complaint.

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