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Kinzel v. Discovery Drilling6/25/2004
nt to your discharge are your directly lying to me about the results of your doctors visit on August 3rd, 1998, including failure to give me the doctors note from that visit, and failure to return to work, to come by the office in person, or to call the office on September 1st, 1998 as was specified in a later doctors note that we did receive clearing you to return to work on that date. We received no further correspondence from you or notes from any doctors on your behalf. You clearly had no interest in maintaining your job or showing even common courtesy to your employer.
PROCEEDINGS
Kinzel and his wife Cheryl filed the present suit against Discovery and Hart Crowser in October 1999, alleging retaliatory and constructive discharge claims against Discovery, multiple defamation claims against both defendants, an intentional interference with contract claim against Hart Crowser, and a negligence and a "cancer phobia" claim against Hart Crowser. Because of summary judgment rulings, by the time of trial only one of Kinzel's defamation claims remained against each defendant, along with a fear of cancer claim against Hart Crowser and a wrongful termination claim against Discovery.
The jury rendered a verdict for both defendants on these claims. Kinzel appeals.
DISCUSSION
Issues on Appeal
Kinzel raises numerous issues on appeal. The issues discussed in this opinion are set out below along with a summary of our resolution of each. Other issues are resolved summarily. They are listed in the margin along with a summary reason for our decision concerning each.
1. Did the trial court err in failing to give a mixed-motive instruction on the retaliatory discharge claim? Yes, because the evidence was sufficiently strong that Kinzel was discharged for reasons that included a prohibited motive.
2. Did the trial court err in limiting Kinzel to two weeks severance pay for his retaliatory discharge claim? Yes, because a retaliatory discharge in violation of an explicit public policy gives rise to a tort as well as a contract claim.
3. Did the trial court err in granting summary judgment to Hart Crowser on Kinzel's first defamation claim? Yes, the challenged statement could reasonably be interpreted as an assessment based upon factual underpinnings.
4. Did the trial court err in connection with instructing the jury regarding Kinzel's defamation claim against Discovery? There is no reversible error on this point. The error that was made was harmless and Kinzel's argument regarding an instruction that should have been given is considered abandoned because of inadequate briefing.
5. Did the trial court err in excluding medical testimony regarding Kinzel's back injury? No, the trial court's exclusionary rulings were correct when made and the court properly allowed such evidence when its relevance to Kinzel's defamation claim was argued.
6. Did the trial court err in granting Hart Crowser summary judgment on Kinzel's intentional interference with contract claim? Yes, there are genuine issues of material fact as to cause and privilege.
We proceed to a discussion of the above issues. 1. Mixed-Motive Instruction
Kinzel complained that Discovery wrongfully terminated him for his role in filing OSH complaints against Hart Crowser or for filing for worker's compensation benefits. At trial, the superior court gave the following jury instruction regarding this claim:
In considering Discovery Drilling's reasons for terminating Jeffrey Kinzel, if you conclude that Discovery Drilling made its decision to terminate Jeffrey Kinzel in the good-fait
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