Slander?

[bollo19]

What is the name of your state (only U.S. law)? IA

The life insurance agent who settled my father's death claim over 20 years ago recently told my mother's caregiver (who is of no relation to our family) the amount of the claim settlement as well as his opinion that my mother had murdered my father. The death was ruled accidental, and the claim was settled as such.
My mother currently has dementia, and I do not want her to be involved in this issue. The caregiver indicated that he/she would be willing to write a statement reflecting the individual's comments.
I researched the agent's name, and cannot find him/her affiliated with the insurance company that settled the death claim.
What legal options do I have in this matter?

Thanks

[justalayman]

My mother currently has dementia, and I do not want her to be involved in this issue.

I'm betting she doesn't really care one way of the other due to the dementia.

What legal options do I have in this matter?

YOU have no options in this matter as you have no standing in the matter. IF you happen to have a POA for mom, you could initiate an action against this person on her behalf but since mom had dementia, I suggest her being a witness would be difficult, at best.

the problem: if this guy did state it specifically as an opinion:

as well as his opinion that my mother had murdered my father

even mom would have no action. Everybody is entitle to their opinion. Do you think everybody that opined that OJ Simpson had killed his wife is somehow liable for slander?

Not a chance.

[quincy]

Any defamation action against the insurance agent would, under normal circumstances, have to be filed against the insurance agent by your mother, as she is the one who has been defamed. If, because your mother has dementia, she has someone acting on her behalf through a power of attorney, a defamation action could potentially be brought against the insurance agent on her behalf - depending on the scope of the power of attorney your mother's agent has been granted.

There can be problems with this type of action, especially if your mother is unaware of the statements made against her and if your mother's caregiver does not believe that the insurance agent's comments were true. If, however, your mother's care has been compromised by the statements made by the insurance agent, it could be worth your while to have the person designated as having power of attorney consult with a defamation attorney on the matter.

Iowa recognizes "defamation per se" which are statements made that are defamatory on their face. A false accusation of murder, or implying someone is a murderer, would be defamatory per se. Reputational injury is presumed with such a false accusation, and damages can be collected on this presumed injury.

Unless YOU have been appointed as your mother's agent, however, to act on her behalf, there is nothing legally YOU can do.

A correction to what justalayman wrote above: An opinion is neither provably true nor provably false. A statement that implies false fact, as the agent's "opinion" that your mother is a murderer does, would not be protected speech. It is defamatory, especially so since the insurance agent is in a position where his false facts may be believed. O.J. Simpson is a unique case in that his situation was newsworthy and he is a public figure - and he is, at this point, defamation-proof.

[bollo19]

I do have POA. I will weigh your opinions and decide whether to pursue legally. Thank you.

[quincy]

You're welcome, Bollo. Good luck.

[justalayman]

Originally Posted by quincy

A correction to what justalayman wrote above: An opinion is neither provably true nor provably false. A statement that implies false fact, as the agent's "opinion" that your mother is a murderer does, would not be protected speech. It is defamatory, especially so since the insurance agent is in a position where his false facts may be believed. O.J. Simpson is a unique case in that his situation was newsworthy and he is a public figure - and he is, at this point, defamation-proof.

so, take the OJ thing out of it. OP stated specifically that the agent opined that mom had killed dad. I suggest it would depend on exactly how it was stated for it to be actionable.

[quincy]

Not really, justalayman.

For a slander action, the plaintiff needs to show that a defamatory comment was made about her to a third party and the third party understood the defamatory meaning of the statement, and the statement leads to special harm of the plaintiff (impairment of reputation or standing in the community, personal humiliation or ridicule, mental anguish and suffering). The plaintiff/mother can meet these elements (as reputational injury is presumed).

The defenses are limited in the insurance agent's case. He can use truth (or substantial truth) as a defense, or opinion.

With the insurance agent's involvement in the investigation, there is no way he can "opine" that the mother is a murderer and not have it be defamatory - no matter how many "I think"s or "I believe"s or "In my opinion"s are said along with it. Expressing such a statement in terms of an opinion does not dispel the implication that it is based on fact.

When the insurance agent says, "I think the wife murdered her husband," his opinion is apt to be given more weight because of his knowledge of the case. But he also has knowledge of the outcome of the case. He called the mother a murderer knowing that it isn't true. He had actual knowledge of the falsity of his statement. The death of the father was judged to be accidental.

Saying that someone is a murderer when it has already been proven not to be the case is defamatory per se. A reputation is automatically presumed to be injured by such a comment. There is no constitutional protection for false statements of fact.

There are certain statements that are so egregious that, regardless of how they are couched, they will still be defamatory. Falsely calling someone a rapist, a child molester, or a murderer, or implying that they are, are three such egregious and defamatory statements.

Opinions cannot be proved true or false. In this case, the insurance agent's expressed "opinion" implied fact, that the mother murdered the father, and that has already been proved false. He can have all sorts of reasons for believing what he does, but his reasons are not supported by fact. The death was shown to be accidental. He knows the death was shown to be accidental. To say it was murder is to go against the proved truth of the matter.

The mother is not a murderer, she has been shown not to be a murderer, and to call her a murderer, or imply falsely that she is a murderer, is defamatory. She has an actionable case (based on what is posted here).

[justalayman]

Originally Posted by quincy

The mother is not a murderer, she has been shown not to be a murderer, and to call her a murderer, or imply falsely that she is a murderer, is defamatory. She has an actionable case (based on what is posted here).

While I understand your points, a person is not stripped completely of their rights to opine. It is how it was presented that would make the difference.

since we do not have either the caregivers or the agents exact statements, consider this possibility:

"we (the insurance company)believed the death was the result of murder so we investigated it as such"

so, the agent provided the opinion of the agency and himself at the time. He implied that it may have been murder. While you claim the agent said "I think the wife murdered her husband," there is nothing presented that would provide any greater support to your position than mine.

You are presenting facts not put forth by the OP and are simply speculating.

. He called the mother a murderer knowing that it isn't true

He called her a murderer? I don't see that anywhere.

and OJ was found not guilty.

Now, the other thing that has not been presented is why this conversation even took place. It is an odd conversation in the first place and there has been nothing presented that would show a reason the agent and the caregiver would have any interaction let alone, why the agent would simply just throw out;

"I think she killed the guy".

I suspect those underlying facts may play an extremely important part in any subsequent suit.

[quincy]

To get this out of the way , O.J. HAS been found guilty - of the wrongful death and battery of Ron Goldman, the battery of his ex-wife Nicole, of robbery with a deadly weapon, burglary with a firearm, first degree kidnapping with a deadly weapon, conspiracy, coercion. . . . oh, and the pirating of broadcast signals. The list goes on. O.J. was just not found guilty of murdering his ex-wife and Goldman.

But, even if O.J. had not been found guilty in the civil trial or theft trial, O.J. is a public figure who has been involved in VERY public and newsworthy events, including a VERY public televised trial, which has allowed for greater freedom in public discussion and expression of opinions about him.

Everyone has the right to comment on matters of public interest and concern. But they still must do so without constitutional fault (negligence or actual malice).

I agree with you, justalayman, that what exactly is communicated and how something is communicated is vital when determining whether the words communicated are defamatory or not. Defamatory statements may be made outright or, to quote the Restatement (Second) of Torts, "by innuendo, by figure of speech, by expressions of belief, by allusion or by irony or satire."

The insurance agent would STILL not be free of risk of losing a defamation action if he stated, as in your example, "We (the insurance company) believed the death was the result of murder so we investigated it as such." Although that is a statement of fact, it carries with it a provably false implication. IF an opinion or statement relies on undisclosed facts, it implies facts and false conclusions can be drawn. (see Stevens v Iowa Newspapers, 728 NW 2d 823,827, Iowa 2007)

IF the insurance agent presented true facts upon which his opinion was based, and then disclosed these facts to the caregiver, he MAY be able to defeat a defamation claim with an opinion defense. It would depend, most importantly, on the impression the words had on the caregiver. (see Huegerich v IBP, Inc, Iowa, 1996, and Haas v Evening Democrat Co, Iowa, 1961, and Salinger v Des Moines Capital, Iowa, 1928)

A court would determine the gist or the sting of the statement and what effect the words as spoken had and have on a third party. The judge would determine whether the statement was capable of a defamatory meaning and the jury would decide if it is understood that way. If the caregiver, and the court, believe the statement made by the insurance agent implied the mother was a murderer, then the statement would be defamatory. An implication of murder would, in addition, be defamatory per se in Iowa, and would presume injury and damages.

From the way the original post here is worded, it sounds very much to me like the insurance agent told the caregiver that he believed the mother was a murderer. I can see how you read it differently. However, if I am correct in my reading, the insurance agent defamed the mother. If you are correct in yours, the insurance agent probably STILL defamed the mother.

In addition, if the claim was settled 20 years ago, there could be an invasion of privacy/disclosure of private facts action or an invasion of privacy/false light action for the mother (or her designated agent) to consider.

I agree with you that it is odd that an insurance agent, who no longer works for the insurance agency that handled the claim 20 years ago, is in contact with the caregiver of the mother. I am also curious if the agent may have breached any term of the settlement agreement by revealing to the third party caregiver details of the settlement.