Colo. SC rules against airline in pilot's defamation suit

Jessica M. Karmasek Mar. 27, 2012, 12:15pm


DENVER (Legal Newsline) - The Colorado Supreme Court last week ruled that a commercial airline is not entitled to immunity in a defamation lawsuit brought against it by one of its pilots.

Air Wisconsin Airlines, a Delaware corporation, employed plaintiff William Hoeper as a pilot.

The Transportation and Security Administration had issued Hoeper a firearm under a federal statute that authorizes the TSA to deputize volunteer pilots as federal law enforcement officers.

After discontinuing its use of the type of aircraft Hoeper had piloted for many years, Air Wisconsin required him to undertake training and pass a test certifying his proficiency in piloting a different aircraft. Hoeper failed three such tests.

Air Wisconsin gave Hoeper one last opportunity to pass the test. Hoeper knew that he would likely lose his job if he failed it for a fourth time.

However, during the last test, Hoeper became angry with administrators because he believed they were deliberately sabotaging his testing.

After Hoeper left the testing facility, an airline manager involved in his testing later called the TSA to report Hoeper as a possible threat.

A jury found that the manager made two statements to the TSA:

- Hoeper was an federal flight deck officer, or FFDO, who may be armed. He was traveling from IAD-DEN later that day and we were concerned about his mental stability and the whereabouts of his firearm; and

- An unstable pilot in the FFDO program was terminated today.

In response, TSA officials arrested Hoeper and searched him.

Hoeper later sued in Colorado against Air Wisconsin for defamation under Virginia law, among other claims.

Air Wisconsin moved for summary judgment, asserting that it was entitled to immunity as a matter of law under the Aviation and Transportation Security Act.

The trial court denied the motion because it determined that the jury was entitled to resolve disputed issues of fact that controlled the determination of immunity.

Air Wisconsin also moved for a directed verdict under the same theory after the close of evidence, which the trial court also denied.

The trial court instructed the jury on the components of ATSA immunity and told the jury it could not find for Hoeper on the defamation claim if it determined that Air Wisconsin was immune under the ATSA. The jury returned a verdict in favor of Hoeper.

It found by clear and convincing evidence that the two statements were defamatory and that Air Wisconsin made one or more of the statements "knowing that they were false, or so recklessly as to amount to a willful disregard for the truth."

The airline appealed and the state Court of Appeals affirmed.

The appeals court determined that the question of whether the judge or jury decides immunity under the ATSA is a procedural issue governed by Colorado law. It concluded that, under Colorado law, the trial court properly allowed the jury to determine whether the ATSA granted Air Wisconsin immunity in this case.

The court also determined that clear and convincing evidence supported the jury's finding of actual malice and that the statements the manager made were not protected as opinion or as substantially true.

Air Wisconsin petitioned the state's high court for review.

The Court, in its March 19 opinion, concluded that the trial court erred by submitting to the jury the question of whether Air Wisconsin was immune from the lawsuit.

The error, however, is "harmless," it said, because the airline is not entitled to immunity.

"In addition, our independent review of the record reveals clear and convincing evidence to support a finding of actual malice," Justice Nancy E. Rice wrote for the Court.

"We also hold that Air Wisconsin's statements are not protected as opinion and that the evidence is sufficient to support the jury's determination that the statements were false."

The Court affirmed the judgment of the state Court of Appeals.

From Legal Newsline: Reach Jessica Karmasek by email at

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