Montgomery Investigative Services, Ltd. v. Horne (Ct. of Special Appeals)

Filed March 12, 2007. Opinion by Judge Charles E. Moylan, Jr. (retired, specially assigned)

From the opinion's headnote:

HEADNOTE

DEFAMATION – QUALIFIED PRIVILEGE – ABUSE OF PRIVILEGE – THE FACTUAL BACKGROUND – THE INITIAL HIRING OF HORNE – THE CRIMINAL BACKGROUND CHECK – THE BACKGROUND CHECK REPORT – THE AGE DISCREPANCY – CONSEQUENCES OF THE FALSE REPORT – QUALIFIED PRIVILEGE AND THE PROOF OF MALICE – THE RECIPROCITY OF THE QUALIFIED PRIVILEGE – ACTUAL MALICE ON THE PART OF MIS AND TAMMY WHITE – JURY INSTRUCTION ON ACTUAL MALICE – THE RECKLESS DISREGARD OF TRUTH – ABUSE OF THE PRIVILEGE BY SOUTHERN SERVICES – HAPPY 40 V. MILLER – GENERAL MOTORS V. PISKOR – THE BEHAVIOR OF JAMES LAMBERT

In an appeal from a conviction below on defamation charges by an employee ("Horne") arising from his discharge by his employer ("Southern Services") based upon false information provided by an investigative service and its investigator (collectively, "MIS"), and a cross appeal taken by Horne against the dismissal below of such charges against Southern Services, the court AFFIRMED the judgments against MIS, and REVERSED the judgment in favor of Southern Services and REMANDED for a new trial against Southern Services.

Horne had been conditionally hired by Southern Services, pending receipt of a criminal background check requested from MIS. MIS erroneously reported to Southern Services that Horne had been convicted of theft and served 6 months in prison, and on the basis of that report, Horne was fired. Horne filed suit, and at the conclusion of the plaintiff's case, judgment was granted in favor of Southern Services on the basis that Horne had failed to make out a prima facie case of actual malice against it. A similar motion was denied against MIS, both then and at the end of the trial, and the jury subsequently rendered a verdict in favor of Horne against MIS. MIS appealed, and Horne cross-appealed against Southern Services.

The court found, as Horne had conceded, that Southern Services had a qualified privilege, but no merit in Horne's contention that MIS did not have the qualified privilege found by the trial court, elevating dicta in the Court of Appeals' Wetherby v. Retail Credit Co. case to the status of a holding in this case, finding that Southern Services' obvious business-related interest was reciprocally extended to MIS as the "flip side" of the same coin.

In similar fashion, the court had little trouble finding actual malice on the part of MIS, overcoming its qualified privilege, after first confirming over Horne's challenge the jury instruction given on actual malice, since it was straight out of the Maryland pattern jury instruction book and otherwise comported with the Maryland cases. The court found more than sufficient evidence below that MIS had, with reckless disregard to the truth, disregarded or overlooked several obvious inconsistencies when its raw data was considered against information it had been given about Horne, which should have, at the least, advised caution or further checks before presenting the unqualified summary of its results, and affirmed the trial judge's decision to let the matter go to the jury.

Finally, the court agreed that it was error to grant judgment in favor of Southern Services, finding the evidence below as to the manner of Southern Services' discharge of Horne's discharge was so abusive as to abrogate the qualified privilege, and the matter deserved to have been submitted to the jury. Consequently, the court reversed the judgment in favor of Southern Services and remanded for a new trial.

The opinion is available in PDF format.