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Selander v. Rossignol
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:	1998 ME 216
Docket:	Aro-98-31
Submitted 
on briefs:	September 8, 1998
Decided:	September 16, 1998

Panel:WATHEN, C.J., and CLIFFORD,  DANA,  ALEXANDER, and  CALKINS, JJ.


ARTHUR R. SELANDER, D.C. v. MARK ROSSIGNOL, R.P.T., d/b/a COUNTY PHYSICAL THERAPY

CALKINS, J.

	[¶1]	Arthur Selander appeals from a summary judgment entered in
the Superior Court (Aroostook County, Pierson, J.) on his claim of
defamation against Mark Rossignol.  The trial court concluded that Rossignol
had a conditional privilege to publish his statement and that no issues of
material fact existed.  We affirm.
	[¶2] Arthur Selander is a chiropractic doctor.  Mark Rossignol is a
physical therapist.  This suit arose out of an independent medical
examination Rossignol performed on one of Selander's patients, David
Beaver.  After back surgery, Beaver's surgeon recommended he enter a
rehabilitation program to assist his recovery.  Beaver chose Selander's
chiropractic program for his rehabilitation.  Beaver applied for disability
benefits from his insurer, who asked Rossignol to perform the examination
of Beaver.  Specifically, the insurer asked Rossignol to, among other things:
"determine [Beaver's] current physical capacities" and describe "your
clinical findings, recommendations for treatment or further evaluation and
prognosis for full recovery."
	[¶3]  	During Rossignol's examination of Beaver, Beaver demonstrated
the rehabilitation exercises he did at Selander's clinic under the direction
of one of Selander's employees, a chiropractic assistant.  Rossignol's report
to the insurer concluded that Selander's program was inappropriate, largely
because it lacked certain important elements of rehabilitative therapy and
was administered by an untrained, unskilled professional.  It is this report
that Selander asserts is defamatory.
	[¶4]  Rossignol successfully moved for summary judgment on the
ground that the report was conditionally privileged.  Summary judgment is
appropriate when the party that would bear the burden of proof at trial
presents evidence that, if he presented no more, would entitle the opposing
party to a judgment as a matter of law.  June Roberts Agency, Inc. v. Venture
Properties, Inc., 676 A.2d 46, 48 (Me. 1996).  We view the evidence in the
light most favorable to the party against whom the summary judgment was
granted, and we determine independently whether the record supports a
conclusion that no genuine issue of material fact exists and the prevailing
party is entitled to a judgment as a matter of law.  McCullough v. Visiting
Nurse Serv. of S. Maine, Inc., 1997 ME 55, ¶ 5, 691 A.2d 1201, 1203.
	[¶5]  	"A conditional privilege against liability for defamation arises in
settings where society has an interest in promoting free, but not absolutely
unfettered, speech."  Lester v. Powers, 596 A.2d 65, 69 (Me. 1991).  "It is
for the court to determine whether the occasion upon which the defendant
published defamatory matter gives rise to a conditional privilege."  Saunders
v. VanPelt, 497 A.2d 1121, 1125 (Me. 1985).  
	[¶6]  	The facts of the occasion in this case are not disputed.  The
statement was provided in response to a request for an independent
medical examination of a claimant for insurance benefits.  The insurer in
such a situation has a legitimate interest in frank communication with the
reviewing health care provider because the results of the examination will
likely affect how it responds to the insured's future claims.  Further,
insureds and insurers, as well as the general public, have an interest in
ensuring that valid claims are paid and fraudulent ones are not.  We
therefore conclude that an independent medical examination is an occasion
giving rise to a conditional privilege and that Rossignol's statements to the
insurer were protected by a conditional privilege.
	[¶7]  	Once a conditional privilege is established, liability for
defamation exists only if the one who made the statement abuses the
privilege.  Lester, 596 A.2d at 69.  An abuse of a privilege occurs when the
person making the statement either "knows his statement to be false,
recklessly disregards its truth or falsity, or acts with spite or ill will."  
Rippett v. Bemis, 672 A.2d 82, 87 (Me. 1996).  Even when the facts are
viewed in the light most favorable to Selander, they do not present a
genuine dispute of material fact on abuse of the privilege sufficient for trial.
	The entry is:
	Judgment affirmed.

Attorney for plaintiff: Charles E. Gilbert, III, Esq. Gilbert Law Offices, P.A. P O Box 2339 Bangor, ME 04402-2339 Attorneys for defendant: John W. McCarthy, Esq. Leigh McCarthy, Esq. Rudman & Winchell, LLC P O Box 1401 Bangor, ME 04402-1401