Alleged Defamatory Statements Must be Of and Concerning Plaintiffs

By Barry Zalma on October 16, 2026

To Prove Defamation the Statement Must be Of and Concerning the Plaintiffs

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Court of Appeals When Reviewing a Summary Judgment, Takes as True all Evidence Favorable to the Nonmovant

In Michael Moloney and Sergio Cantu v. United Services Automobile Association, No. 04-25-00519-CV, Court of Appeals of Texas, Fourth District, San Antonio (October 14, 2026) Michael Moloney and Sergio Cantu appealed from the trial court’s granting of a traditional motion for summary judgment in favor of United Services Automobile Association (“USAA”) on their defamation claim.

BACKGROUND

Moloney and Cantu sued USAA for defamation, alleging that they are the principals of Informed Roofing & Restoration, LLC (“Informed Roofing”), which is primarily engaged in the residential roofing repair and replacement business, and that an employee or agent of USAA had made false and defamatory statements to the San Antonio Police Department (“SAPD”) concerning them.

Specifically, Moloney and Cantu alleged that an employee of USAA, Jackie Johnston, “made false and defamatory statements to the San Antonio Police Department concerning Informed Roofing and its principals.”

Moloney and Cantu alleged that “Johnston’s statements generally accuse[d] [them] of having intentionally damaged the roof of Mr. Scot Lee,” a customer of Informed Roofing and an insured of USAA, “in the context and furtherance of vandalism, insurance fraud, and criminal mischief.”

USAA filed a traditional and no-evidence motion for summary judgment on Moloney’s and Cantu’s defamation claims. The trial court granted Defendant’s Traditional Motion for Summary Judgment.

TRADITIONAL MOTION FOR SUMMARY JUDGMENT

In its traditional motion for summary judgment, USAA argued that:

(1) the defamation claims brought by Moloney and Cantu are barred by the statute of limitations;

(2) the statements referred to in the police report are privileged; and

(3) the alleged defamatory statements are not “of and concerning” Moloney and Cantu and thus cannot serve as the basis for their defamation claims.

On appeal, Moloney and Cantu argued that USAA failed to prove its entitlement to a traditional summary judgment on any of these grounds.

The Court of Appeals when reviewing a summary judgment, takes as true all evidence favorable to the nonmovant and the Court of Appeals will indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.

Questions regarding defamation liability should be submitted to a jury only where a publication is of ambiguous or doubtful import.

USAA argued that the summary judgment evidence shows that the alleged defamatory statement made by its investigator was not of and concerning Moloney and Cantu.

In her declaration, Jackie Johnston stated that she is a senior investigator for USAA and became involved in the investigation of a hail damage claim at an insured’s residence. Johnston stated that she “did not know who caused the damage” or who reported to SAPD that any particular person or company caused the damage.

In her declaration, Jackie Johnston stated that while her investigation determined “that there were legitimate concerns about potential vandalism” to the insured’s roof, she was not able to determine who or what caused the damage to the insured’s roof.

The March 29, 2022 police report does not name Moloney or Cantu or provide any information from which a person acquainted with them would understand that Johnston’s statement about unknown persons referred to Moloney, Cantu, or Informed Roofing.

The Court of Appeals concluded that USAA provided evidence showing that the police reports alleged to contain defamatory statements were not “of and concerning” Moloney and Cantu.

The Court of Appeals concluded that the plaintiffs did not produce any competent controverting evidence raising a genuine issue of material fact that the publication of the alleged defamatory statement. The trial court’s summary judgment was affirmed.

ZALMA OPINION

No one likes to be defamed. However, if the person defamed wishes to sue the publishing the defamatory words, the person needs evidence that the defamatory statements were made about him or her. The plaintiffs failed to produce evidence that the statements they claimed to be defamatory were about the plaintiffs. The plaintiffs were not named or even indicated and the summary judgment was affirmed.

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