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Fitzgerald v. Mobile Billboards, LLC

Supreme Court of Nevada

May 3, 2018

SEAN FITZGERALD, Appellant,
v.
MOBILE BILLBOARDS, LLC, A NEVADA LIMITED LIABILITY COMPANY; AND VINCENT BARTELLO, AN INDIVIDUAL, Respondents.

          Appeal from a district court order granting a motion to dismiss in a defamation action. Eighth Judicial District Court, Clark County; Rob Bare, Judge.

          Kemp & Kemp and James P. Kemp and Victoria L. Neal, Las Vegas, for Appellant.

          Mobile Billboards, LLC, in Pro Se.

          Vincent Bartello, in Pro Se.

          BEFORE PICKERING, GIBBONS AND HARDESTY, JJ.

          OPINION

          HARDESTY, J.

         In this appeal, we address whether allegedly defamatory statements made by an employer regarding an employee's alleged abuse of the workers' compensation program to obtain prescription pain medication, a violation of NRS 616D.300, are absolutely privileged. While we have recognized that the common law absolute privilege applies to quasi-judicial proceedings, NRS 616D.020 provides a conditional privilege for statements alleging a violation of NRS 616D.300. Because the district court erred in finding that the allegedly defamatory statements in this case were absolutely privileged and did not determine whether the conditional privilege in NRS 616D.020 applied, we reverse the order of dismissal and remand this matter to the district court for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         Appellant Sean Fitzgerald was employed as a head fleet mechanic by respondent Mobile Billboards, LLC, which is owned by respondent Vincent Bartello (collectively, respondents). Shortly after the start of his employment, appellant sustained a work-related injury. Appellant filed a workers' compensation claim with respondents' insurance company. Thereafter, respondents made statements to the insurance company expressing concern regarding appellant's usage of prescription pain medication, and the insurance company informed appellant of these statements in a letter. The insurance company also repeated the statements to appellant's workers' compensation doctor.

         Appellant filed a complaint in the district court against respondents for defamation, alleging that respondents' statements were false and harmed his reputation and livelihood. In particular, appellant alleged that respondents stated, "[appellant] was attempting to obtain more and different prescription painkillers after his industrial injury, that multiple prescription painkillers, and prescriptions for additional painkillers, were found in [appellant's] personal property." Respondents filed a motion to dismiss pursuant to NRCP 12(b)(5), arguing that their statements were immune under the absolute privilege. The district court agreed with respondents and dismissed the case. This appeal followed.[1]

         DISCUSSION

         Standard of review

         This court reviews a district court's decision to dismiss a complaint pursuant to NRCP 12(b)(5) rigorously, with all alleged facts in the complaint presumed true and all inferences drawn in favor of the plaintiff. Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008). A complaint should be dismissed for failure to state a claim only when "it appears beyond a doubt that [the plaintiff] could prove no set of facts, which, if true, would entitle [him] to relief." Id., at 228, 181 P.3d at 672. Further, this court reviews a party's legal entitlement to claim an absolute or conditional privilege de novo. Clark Cty. Sch, Dist. v. Virtual Educ. Software, Inc., 125 Nev. 374, 382, 213 P.3d 496, 502 (2009).

         Absolute ...


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