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ATTORNEY FOR APPELLANT Christopher J. Wheeler Angola, Indiana

ATTORNEYS FOR APPELLEES Claire Konopa Aigotti South Bend, Indiana Edward W. Hearn Highland, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 76S04-0604-CV-138 JASON W. HOLCOMB, Appellant (Plaintiff below), v. WALTER'S DIMMICK PETROLEUM, INC., AND GLYNELL KUHN, Appellees (Defendants below). _________________________________ Appeal from the Steuben Circuit Court, No. 76C01-0305-CT-245 The Honorable Allen N. Wheat, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 76A04-0410-CV-572 _________________________________ December 13, 2006 Sullivan, Justice.

A gas station clerk reported to police the make and license plate number of a vehicle she said had driven off without paying for gasoline. After charges against the owner of this vehicle were dismissed, the owner sued the clerk for false arrest, false imprisonment, defamation, and abuse of process. A qualified privilege available for communications to law enforcement officers protects the clerk in these circumstances.

Background

On December 3, 2002, Glynell Kuhn, an employee at the "Spee-D-Mart" gas station owned by Walter's Dimmick Petroleum, Inc. ("Dimmick"), reported to the Steuben County police that a customer operating a green Jeep with license plate number 680670L had driven off without paying for his gasoline. Jason Holcomb, who owned a green Jeep with license plate number 680670L, was arrested and charged with the reported gasoline theft. The charges against Holcomb were eventually dismissed. Holcomb then sued Kuhn and, on the theory of respondeat superior, Dimmick, for false arrest, false imprisonment, defamation, and abuse of process.

The trial court granted summary judgment in favor of Kuhn and Dimmick, holding that as a matter of law, Kuhn's statements were protected by a qualified privilege that attaches to reports to law enforcement. 1 In a memorandum opinion, a divided panel of the Court of Appeals reversed on the basis that genuine issues of material fact precluded the entry of summary judgment. 2 Holcomb v. Walter's Dimmick Petroleum Inc., No. 76A04-0410-CV-572, slip. op., 838 N.E.2d 562 (Ind. Ct. App. 2005) (table). Kuhn and Dimmick petitioned to, and we granted, transfer. Holcomb v. Walter's Dimmick Petroleum Inc., 855 N.E.2d 1005 (Ind. 2006) (table).

Discussion

A qualified privilege protects "communications made in good faith on any subject matter in which the party making the communication has an interest or in reference to which he has a duty, either public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty." Bals v. Verduzco, 600 N.E.2d 1353, 1356 (Ind. 1992). In the absence of a factual dispute, the applicability of the privilege is a question of law to be determined
1

See Health & Hosp. Corp. of Marion Co. v. Gaither, 272 Ind. 251, 397 N.E.2d 589, 595 (1979) (noting "a judgment in favor of an employee requires judgment in favor of his employer when the employer's liability is predicated solely upon the acts of said employee"). Holcomb also appealed the trial court's striking a surveillance videotape that he had designated as material for consideration in opposition to summary judgment. The Court of Appeals found that the trial court did not abuse its discretion in striking Holcomb's designation of the videotape because Holcomb failed to tender and lay a foundation for the videotape. We summarily affirm the Court of Appeals on this issue. Ind. Appellate Rule 58(A).

2

2

by the court. Id. To promote society's interest in having crimes reported, communications to law enforcement are protected by this qualified privilege. Conn v. Paul Harris Stores Inc., 439 N.E.2d 195, 200 (Ind. Ct. App. 1982), trans. denied.

A communication otherwise privileged can lose its privileged status

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Indiana Law