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Popko v. Continental Casualty Co.

January 21, 2005


Appeal from the Circuit Court of Cook County. No. 99 L 13525. Honorable Thomas L. Hogan, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Fitzgerald Smith

Upon returning from a planned two-week vacation and honeymoon to his workplace of almost 16 years, plaintiff Daniel Popko learned that he had lost his job for poor conduct he displayed during a performance review. Plaintiff sued defendants Continental Casualty Company, CNA Financial Corporation, d/b/a CNA, David Izzo, individually and as agent of CNA, and Steven Tefft, individually and as agent of CNA (collectively, defendants), for defamation and tortious interference with employment based on certain communications they made relating to his performance review. After trial before a jury, a verdict was returned in favor of plaintiff and against defendants, who now appeal the circuit court's orders entering judgment on the verdict and denying their posttrial motion.

[9]     Defendants contend on appeal that the court improperly considered the communications at issue to be publications for defamation purposes. They assert that the "nonpublication rule," or intracorporate communication exception to publication, applies to such communications and they effectively ask this court to reconsider Illinois law on the issue. Defendants also contend the court improperly granted one of plaintiff's motions in limine. We disagree with both contentions, and for the reasons that follow, we affirm the judgment of the circuit court.


Plaintiff began working as an attorney for Continental Insurance Company (Continental) in 1983, where he continued to work after Continental later merged with CNA Financial Corporation, d/b/a CNA (CNA). At the times pertinent to his involuntary termination, plaintiff worked as a trial specialist in CNA's Downers Grove, Illinois, office. Defendant Steven Tefft was an assistant managing trial attorney and plaintiff's direct supervisor. Defendant David Izzo was Tefft's supervisor and also plaintiff's superior.

On July 2, 1999, Tefft conducted a performance review of plaintiff for the period from July 1998 to May 1999. During roughly the same time period as that covered by the review, CNA's staff was being reduced. Plaintiff's previous reviews had all been good, including one conducted by Tefft and Izzo in January 1999. As a result of the July 2 review, however, plaintiff received a substantially lower evaluation than he had previously. The lower rating upset plaintiff and ultimately led to his termination.

After the July 2 review, Tefft and Izzo made oral and written statements that form the basis of this action. Tefft reported to Izzo that plaintiff used profanity during the review and that he challenged Tefft's authority. Plaintiff denied that he used the language or conducted himself in the manner described by Tefft.

Tefft recommended to Izzo that plaintiff's employment be terminated. Izzo agreed with the recommendation and reported the incident to his superior, CNA vice president Bruce Johnston. Johnston then obtained permission from human resources to fire plaintiff.

On July 13, 1999, Izzo prepared a written memorandum to Johnston on the subject of plaintiff's termination (the termination memo). In it, Izzo set forth several instances showing a "pattern of unacceptable conduct" by plaintiff beginning in August 1998. At that time, plaintiff moved from CNA's Chicago office to the Downers Grove office. Once there, according to the termination memo, plaintiff made derogatory comments about Tefft and Izzo to CNA's Downers Grove personnel. Plaintiff made similar derogatory comments several months later at a staff counsel meeting in the Chicago office. Finally, plaintiff's bad conduct "reached a breaking point" on July 2, 1999, when plaintiff became belligerent to Tefft and used profanity. Johnston agreed with Izzo's and Tefft's recommendations that plaintiff's employment be terminated.

On July 19, 1999, plaintiff was informed that his employment was involuntarily terminated for poor conduct.

Later that year, plaintiff filed an action against CNA, Izzo and Tefft, and others, for, among other things, defamation based on the falsity of the information contained in the termination memo.

The action ultimately proceeded to trial in January 2003 on claims of defamation per quod and intentional interference with prospective economic advantage against defendants CNA, and David Izzo and Steven Tefft, individually and as agents of CNA. The court granted plaintiff's motion in limine barring the introduction of evidence that he was an at-will employee.

At trial, testimony established that no investigation into the truth of the charges against plaintiff was conducted by defendants. Specifically, Johnston testified that he never asked plaintiff or other employees about the incident relating to the July 2 performance review, and he did not consider plaintiff's prior good reviews. Tefft testified that plaintiff was not fired for his performance but for his conduct during the July 2 performance review. Testimony also established that Tefft later replaced plaintiff in his position at the Downers Grove office.

Defendants moved for a directed verdict based on the argument that there had not been a legally cognizable publication of the defamatory ...

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