ALBRIGHT v. ALLIANT SPECIALTY INSURANCE SERVICES INC (2019)

MEMORANDUM **

In 2016, Alliant Insurance Services, Inc. and its subsidiary, Alliant Specialty Insurance Services, Inc., (together, “Alliant”) were negotiating contracts, called “co-broker agreements,” with Arthur J. Gallagher & Co. (“AJG”), under which two brokerages that AJG had recently acquired would sell and service Alliant’s insurance products. An Alliant employee circulated a draft co-broker agreement containing a term that excluded one of AJG’s brokers, Todd Albright, from performing any work under the agreement. Albright sued Alliant, claiming the term defamed him in several states, tortiously interfered with his business expectancy, and negligently injured him. The district court granted summary judgment in Alliant’s favor and denied Albright’s motion for partial summary judgment on choice of law. It also denied Albright’s motion for reconsideration. Albright appeals these rulings. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

The district court did not err by applying Washington law to Albright’s defamation claims and denying Albright’s motion for partial summary judgment on choice of law. There is no outcome-determinative difference between the law of Washington and the laws of California, Illinois, and Oklahoma as they relate to the resolution of Albright’s defamation claims. All four states recognize a conditional “common interest” privilege for otherwise-defamatory communications that is lost when the declarant is motivated by malice or otherwise abuses the privilege. See Moe v. Wise, 97 Wash.App. 950, 989 P.2d 1148, 1154–58 (1999); see also Taus v. Loftus, 40 Cal.4th 683, 54 Cal.Rptr.3d 775, 151 P.3d 1185, 1209–10 (2007); Kuwik v. Starmark Star Marketing and Admin., Inc., 156 Ill.2d 16, 188 Ill.Dec. 765, 619 N.E.2d 129, 134–36 (1993); Trice v. Burress, 137 P.3d 1253, 1260 n.15 (Okla. Civ. App. 2006); Thornton v. Holdenville Gen. Hosp., 36 P.3d 456, 461 (Okla. Civ. App. 2001). Given the absence of a “real” conflict between the relevant laws, the district court properly applied Washington law and denied Albright’s motion for partial summary judgment. See Seizer v. Sessions, 132 Wash.2d 642, 940 P.2d 261, 264 (1997).

Nor was there error in granting summary judgment in Alliant’s favor on Albright’s defamation claims. The allegedly defamatory co-broker agreements were communicated in furtherance of a “legitimate business relationship” between Alliant and AJG, and thus were covered by the common interest privilege. See Corbin v. Madison, 12 Wash.App. 318, 529 P.2d 1145, 1151 (1974). Albright’s evidence does not create a genuine issue of material fact as to whether Robert Shearer, the author of the co-broker agreement, was motivated by malice when he drafted and published the relevant language.

There was also no error in granting summary judgment in Alliant’s favor on Albright’s tortious interference claims. Albright presented insufficient evidence that Alliant “interfered for an improper purpose or used improper means” to exclude him from a business expectancy. Leingang v. Pierce Cnty. Med. Bureau, Inc., 131 Wash.2d 133, 930 P.2d 288, 300 (1997).

There was no abuse of discretion in denying Albright’s motion for reconsideration. Albright fails to show clear error in the district court’s underlying ruling on the motions for summary judgment, and the newly discovered evidence he presented to the district court did not create an issue of material fact as to the existence of malice. Carroll v. Nakatani, 342 F.3d 934, 940, 945 (9th Cir. 2003).

AFFIRMED.