Richard J. Schmidt (Schmidt), a gastroenterologist, was convicted of attempting to murder his lover, Janice T. Allen (Allen) by injecting her with the HIV virus. Allen filed suit against various defendants as a result of an interview given by Schmidt to a reporter for ABC News, in which he stated that Allen was a "stalker." Before the interview was aired on national television, a story was published in a local newspaper with the headline, "Schmidt Calls Victim Stalker." As a result of the interview and the story, Allen sued the paper's publisher, editor and reporter responsible for the February 20, 1999 story, as well as Schmidt. She settled her claims against the publisher, editor and reporter and dismissed them from the suit.

She amended her suit to include State Farm Insurance Company (State Farm) as an additional defendant. State Farm had issued a homeowner's policy to Schmidt that was in force at the time of the incident and Allen argued that the policy provided coverage for her damages resulting from Schmidt's defamatory statement. State Farm answered her petition and filed a motion for partial summary judgment, stating that Schmidt's homeowner's policy excluded coverage for claims arising from defamation. The trial court heard the case, granted the motion and issued a judgment dismissing State Farm from the suit. Schmidt appealed, arguing that the trial court erred in finding that Allen's claims were excluded under his State Farm policy and that it erred in failing to find that State Farm had a duty to defend him.

The appellate court determined that defamation is a tort that involves invasion of a person's interest in his or her reputation and good name. Defamatory words harm the reputation of another and lower the person in the estimation of the community, deter others from associating or dealing with the person or expose the person to contempt or ridicule. Four elements are required in a defamation cause of action. They are a false and defamatory statement concerning another, an unprivileged communication of it to a third party, fault (negligence or greater) on the part of the publisher and resulting injury. In order for a defamation claim to be successful, the plaintiff must prove that the defendant, with malice or other fault, published a false statement with defamatory words that caused damages to the plaintiff. Words that are defamatory per se expressly or implicitly accuse another of criminal conduct or injure one's personal or professional reputation without considering extrinsic facts or other surrounding circumstances.

The State Farm policy issued to Schmidt excluded coverage for bodily injury expected or intended by the insured or to any person that was the result of willful and malicious acts. The words "willful and malicious" had been defined to include as little as mere negligence without intending to do harm up to and including acts so far from the proper state of mind that they are treated in many respects as if harm was intended. In a separate but related case, that court found that under the exclusion for willful and malicious acts, it was immaterial whether the defendant intended the actual resulting injuries. Instead, the exclusion applied to conduct showing that the defendant acted with a conscious indifference to the consequences with knowledge that harm would follow. The "malicious" part of the exclusion applied to conduct that was intentional, wrongful and without just cause or excuse.

Schmidt stated he did not believe that the newspaper article had misquoted him and it was his opinion that Allen was a stalker. Stalking is a lawfully defined crime. Schmidt's statement was found defamatory per se, and malice on his part, either actual or implied, was presumed. Because of that, he implicated Allen with criminal behavior intentionally, wrongfully and without just cause. The appellate court found the State Farm policy excluded coverage for any damages suffered by Allen as a result of Schmidt's statement and affirmed the judgment of the trial court.

Schmidt also argued that the trial court erred in failing to find that State Farm had a duty of defense in the lawsuit. The appellate court also disagreed with this argument, because the policy unambiguously and clearly stated that it had a duty to defend only if policy coverage applied. Coverage was excluded and there was no duty for State Farm to defend Schmidt. For these reasons, the judgment of the trial court granting summary judgment to State Farm and dismissing Allen's claims against it with prejudice was affirmed.

Janice Trahan Allen, v. Thomson Newspapers, Inc., et al. Louisiana Court of Appeal, Third Circuit. No. 04-1344. Filed February 2, 2005. Affirmed. 2005 CCH Personal and Commercial Liability Cases. Paragraph 1063.