This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Michael J. Martin,





Mesaba Holding, Inc., and Mesaba Aviation, Inc., dba Mesaba Airlines,



Filed June 18, 2002


Kalitowski, Judge


Hennepin County District Court

File No. 0012080


Joseph A. Rymanowski, Jr., P.O. Box 16446, St. Paul, MN 55116 (for appellant)


Gregory J. Stenmoe, Jason M. Hedican, Briggs and Morgan, P.A., 2400 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondents)


            Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Michael Martin brought an action against his former employer, respondent Mesaba Airlines (Mesaba), alleging defamation in a statement made by Mesaba to the Federal Aviation Administration (FAA).  The district court dismissed the claim, holding that Mesaba’s statement was protected by the qualified immunity doctrine and that appellant did not present sufficient evidence of malice to survive summary judgment.  Appellant contends the statement is not protected by qualified immunity because (1) there were issues of fact as to whether the statement was made with the proper motive or on the proper occasion; and (2) there are disputed facts concerning whether the statement was made with malice.  We affirm.



When reviewing a grant of summary judgment, an appellate court must determine whether any genuine issues of material fact exist and whether the district court erred in applying the law.  Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn. 1997).  This court views the evidence in the light most favorable to the nonmoving party.  Id.  To defeat a summary judgment motion, a party cannot rely on denials or general averments, but must offer specific facts to show that there is a genuine issue of material fact for trial.  Minn. R. Civ. P. 56.05; DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).  A genuine issue for trial must be established by substantial evidence.  DLH, 566 N.W.2d at 69-70 (quoting Murphy v. Country House Inc., 240 N.W.2d 507, 512 (1976)).

[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.


Id. at 71.


Appellant contends that the district court erred in granting Mesaba qualified immunity from his defamation claim because Mesaba’s statement was not made with the proper motive, on the proper occasion, or with reasonable cause.  Appellant argues that the statement to the FAA was instead meant to cover up the wrongdoings of other Mesaba employees.  We disagree.

The initial determination of whether a statement is privileged is a question of law for the district court to determine and is subject to de novo review.  Lewis v. Equitable Life Assurance Soc’y, 389 N.W.2d 876, 890 (Minn. 1986).  Minnesota law recognizes a qualified privilege for statements “made upon a proper occasion, from a proper motive, and * * * based upon reasonable or probable cause.”  Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 256-57 (Minn. 1980). 

Here, the district court properly determined Mesaba’s statement satisfies the elements for a qualified privilege.  Mesaba made the report to the FAA under the FAA’s voluntary disclosure program.  The policy behind this program is that:

The FAA believes that the open sharing of apparent violations and a cooperative as well as an advisory approach to solving problems will enhance and promote aviation safety.


FAA, Advis. Circ. 00-58, Voluntary Disclosure Reporting Program, 1, 3 (May 4, 1998).  Further, the FAA designed this program “to encourage compliance with the FAA’s regulations, foster safe operating practices, and promote the development of internal evaluation programs.”  Id. at 2. 

We conclude that Mesaba made its statement to the FAA with a proper motive because it complied with the FAA’s program, which encourages voluntary disclosures of violations.  Once Mesaba became aware it had committed a possible violation of FAA regulations, the FAA program and Mesaba’s best interests supported the decision to voluntarily disclose the violation to the FAA.  By voluntarily disclosing and addressing the problem, Mesaba both furthered the policy of the FAA and had a chance to avoid a fine because the FAA rewards such behavior.  See id. at 3 (stating that air carriers “will receive a letter of correction in lieu of civil penalty action for covered instances of noncompliance that are voluntarily disclosed to the FAA in accordance with the procedures set forth in [the voluntary disclosure program]”).  Thus, the district court properly determined that Mesaba disclosed the violation with a proper motive.

Mesaba’s written statement to the FAA was made on the proper occasion because after Mesaba made an oral disclosure to the FAA, a written report was required within ten days.  See id. at 7.  Finally, the record indicates Mesaba made the report with reasonable cause because three of its mechanics gave statements that despite the fact a required check was not conducted, appellant improperly signed off on the maintenance forms.  Thus, the evidence supports the district court’s determination that as a matter of law Mesaba was entitled to a qualified privilege for making its written report to the FAA.


            Appellant also contends that the district court erred by determining that appellant presented no evidence of malice to rebut Mesaba’s qualified privilege.  We disagree.

A qualified privilege can be lost if it is abused, as when made with malice, and plaintiff has the burden to prove malice.  Stuempges, 297 N.W.2d at 257.  Malice is actual ill will, or a design causelessly and wantonly to injure plaintiff.  McBride v. Sears, Roebuck Co., 306 Minn. 93, 98, 235 N.W.2d 371, 375 (1975).  Although the issue of malice is usually a jury question, in some circumstances, it may be subject to summary judgment.  See, e.g., Michaelson v. Minnesota Mining & Mfg. Co., 474 N.W.2d 174, 182 (Minn. App. 1991) (affirming summary judgment because employer’s letter to a plaintiff’s supervisors enumerating deficiencies in his job performance and discussing reassignment did not establish actual malice sufficient to create a cause of action), aff’d mem., 479 N.W.2d 58 (Minn. 1992).

Malice cannot be implied from the statement itself or from the fact that the statement was false.  Malice may be proved by extrinsic evidence of personal ill feeling, or by intrinsic evidence such as the exaggerated language of the libel, the character of the language used, the mode and extent of publication, and other matters in excess of the privilege.


Buchanan v. Minn. State Dep’t of Health, 573 N.W.2d 733, 738 (Minn. App. 1998).

            Here, appellant failed to point to any evidence of malice in the record.  Instead, appellant offers unsubstantiated theories that Mesaba was out to get him because he was a new employee.  These general averments do not constitute substantial evidence.  Reviewing the entire record, we conclude the district court properly determined that appellant failed to present evidence of malice to survive summary judgment.  Because Mesaba had a qualified privilege and there was no evidence of malice, Mesaba was properly granted summary judgment. 

            Finally, by notice of review, Mesaba contends it is entitled to absolute immunity for making the written disclosure to the FAA.  Because the district court did not rule on this issue and because we are affirming the district court’s determination that Mesaba is entitled to qualified immunity as a matter of law, we need not address this issue.