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WATHAN v. EQUITABLE LIFE ASSUR. SOC. OF THE U.S.

June 16, 1986

HAROLD L. WATHAN, SR., PLAINTIFF,
v.
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, A NEW YORK CORPORATION, METROPOLITAN LIFE INSURANCE COMPANY, A NEW YORK CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Mills, District Judge:

ORDER

A question of libel.

Summary judgment allowed as to Metropolitan, denied as to Equitable.

This matter is before the Court upon Plaintiff's objections to two recommendations filed herein by U.S. Magistrate Charles H. Evans on March 26, 1986. 28 U.S.C. § 636 (b)(1)(C). The first recommended that the motion for summary judgment filed by Defendant Equitable Life Assurance Society of the United States (Equitable) be allowed as to Count I of Plaintiff's complaint. The second recommended that the motion for summary judgment and the motions to strike filed by Defendant Metropolitan Life Insurance Company (Metropolitan) be allowed as to Count II.

Pursuant to Local Rule 18(c)(2), the Court has made a de novo review of the objections to the Magistrate's recommendations. It is this Court's determination that the Magistrate's recommendation will be adopted with respect to Defendant Metropolitan and rejected with respect to Defendant Equitable.

Background

Harold L. Wathan, Sr., brings this diversity action against Equitable and Metropolitan for libel and tortious interference with business relations. He first claims that in October of 1982 an agent of Metropolitan, Mr. Dean Mesnard, prepared a libelous handbill, and in November distributed six to eight of them at a life insurance underwriter association meeting. Plaintiff further alleges that on November 18, 1982, an agent of Equitable, Mr. Roe Skidmore, again libeled him by mailing a copy of the handbill to one of Plaintiff's clients.

Plaintiff initially filed suit against Equitable on September 26, 1983. No action was, however, commenced against Metropolitan until October 26, 1984, when Plaintiff amended his complaint to include Metropolitan as a defendant.

Both Defendants move for summary judgment of the libel counts against them on the basis of the Illinois one-year statute of limitations for actions sounding in libel. See 1981 Ill. Rev. Stat. ch. 83, ¶ 14. The Magistrate first found that Plaintiff's action against Metropolitan was time-barred in that it commenced almost two years after the publication of the handbill by Mr. Mesnard. In so holding, the Magistrate rejected Plaintiff's argument that his lack of knowledge that Metropolitan was a proper defendant operated to toll the limitations period under the Illinois "discovery rule." This Court agrees that Plaintiff's arguments were properly rejected and concurs in the able reasoning of the Magistrate. Ergo, his recommendation will be followed as to Defendant Metropolitan.*fn1

After recommending that Metropolitan's motion for summary judgment be granted, the Magistrate further held that Plaintiff's action against Equitable is barred by the Illinois Uniform Single Publication Act (USPA), 1985 Ill. Rev. Stat. ch. 126, ¶ 11 et seq. This Act provides:

    No person shall have more than one cause of action
  for damages for libel or slander or invasion of
  privacy or any other tort founded upon any single
  publication or exhibition or utterance, such as any
  one edition of a newspaper or book or magazine or any
  one presentation to an audience or any one broadcast
  over radio or television or any one exhibition of a
  motion picture. Recovery in any action shall include
  all damages for any such tort suffered by the
  plaintiff in all jurisdictions.

Based on this statute and the Illinois case of Founding Church of Scientology v. AMA, 60 Ill. App.3d 586, 18 Ill.Dec. 5, 377 N.E.2d 158 (1st Dist. 1978), the Magistrate concluded that the mere redistribution of a copy of the original publication by Equitable does not create a separate cause of action against Equitable. Under this theory, therefore, Plaintiff would not have a separate cause of action against someone who merely redistributes copies of an already published statement.

Plaintiff objects to this interpretation of the statute, and argues that the Commissioner's prefatory note to the USPA demonstrates a clear intent on the part of the drafters of the statute to not extend its reach to situations involving multiple defendants who separately publish similar material. The Commissioner's note states that:


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