There is a certain irony in any defamation lawsuit, which is a public request for redress arising from a statement the claimant says should not have been made public. Now we have the construction version. Company A sues Company B, claiming statements of B about the quality of A’s work defamed A. The lower court construed the statements as opinion (and thus not defamatory). The Massachusetts Appeals Court has held that the statement could have been verified and so was factual, but it was subject to a “conditional privilege” that barred the defamation claim. The decision – now very public! – is in the matter of Downey v. Chutehall Construction Co., Inc.[1]

A new roof was installed on a Boston townhouse in 2005. Several years later, the homeowners engaged another contractor to examine leaks. The investigating contractor wrote that the original roofing work in 2005 “was installed over a [sic] EPDM roof system that had fiberboard roof insulation that was soaking wet.” In the ensuing lawsuit by the homeowners against the original roofer, that company took umbrage over this statement, bringing its own claim against the investigating contractor based on the quoted statement.

The appellate court noted that the statement “appears to be an assertion of fact that, at least in theory, could be verified as either true or false.” Thus, it was not opinion, and could be subject to a claim for defamation if there was no privilege attached to the communication. The court went on to note that under Massachusetts law, a conditional privilege to an otherwise-defamatory statement may attach if the publisher of a statement and the recipient have a common interest in the subject, and the statement at issue was made “to further or protect that interest.” Here, the homeowners and the investigating contractor had a common interest in determining the cause of roof leaks, and the contractor’s statement was made in the process of advancing that common interest. Thus, the statement that a roofing system had been installed over “insulation that was soaking wet” had a conditional privilege which meant it was not actionable for defamation.

So Company A, who didn’t want a statement made to its former client, must now see that statement published in the court decision, in the law reports and on the internet.