SIXTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
Case No. 6D23-1379
Lower Tribunal No. 2017-CA-007010-O
_____________________________
FLORIDA BC HOLDINGS, LLC d/b/a SYNERGY EQUIPMENT,
Appellant,
v.
JAY E. REESE,
Appellee.
_____________________________
Appeal from the Circuit Court for Orange County.
Vincent S. Chiu, Judge.
December 21, 2023
MIZE, J.
Appellant, Florida BC Holdings, LLC (“Synergy”), appeals a final judgment
entered in favor of Appellee, Jay E. Reese (“Reese”), following a jury trial on
Reese’s claim for tortious interference with an advantageous business relationship.1
The jury awarded Reese damages for lost wages in the amount of $36,643.50 and
damages for mental anguish in the amount of $50,000.00. Synergy argues that the
1
This case was transferred from the Fifth District Court of Appeal to this
Court on January 1, 2023.
trial court erred by denying Synergy’s motion for directed verdict and its motion to
set aside the verdict concerning the issues of: (1) liability for Reese’s claim for
tortious interference with an advantageous business relationship; and (2) whether
Florida’s impact rule barred Reese from recovering emotional distress damages on
his claim for tortious interference with an advantageous business relationship. We
affirm the final judgment in full. However, for the reasons explained below and
pursuant to Article V, Section 3(b)(4) of the Florida Constitution, we certify this
decision to be in direct conflict with Reid v. Daley,
276 So. 3d 878 (Fla. 1st DCA
2019). Further, we certify the following two questions to be of great public
importance:
(1) Subject to exceptions previously recognized by the Supreme Court of
Florida, does the impact rule generally apply to intentional torts?
(2) Does the impact rule apply to the tort of tortious interference with an
advantageous business relationship and, if so, does the impact rule apply when such
tort is committed with actual malice?
Background and Procedural History
Synergy employed Reese as a sales coordinator beginning in September 2015.
As part of its new hire process, Synergy requires new employees to complete a new
hire paperwork packet. A checklist of all documents within the packet serves as the
front page, and documents are generally marked off on the checklist when they are
2
received. At the time that Synergy hired Reese, one of the documents that Synergy
typically included within this packet was a non-compete agreement which Synergy
required all sales personnel to sign as a condition of employment.
Reese left his position at Synergy in late 2016 and began working for Ahern
Rentals, Inc. (“Ahern”), a competitor of Synergy, in February 2017. When he
applied for the position at Ahern, Reese knew Ahern to be a competitor of Synergy.
Prior to employing Reese, Ahern sent a letter to Synergy requesting information as
to whether Reese had signed a non-compete agreement with Synergy. Synergy did
not respond to Ahern’s letter.
In May 2017, Synergy learned of Reese’s employment with Ahern.2 Synergy
asserted in the proceedings below that Reese had signed a non-compete agreement
and that, after learning of Reese’s employment with Ahern, Synergy planned to
enforce it. However, Synergy could not locate an executed copy of the agreement.
Additionally, the checklist that accompanied Reese’s new hire paperwork with
Synergy was filled out, and while it indicated that certain of the new hire documents
had been received from Reese, the checklist did not indicate that the executed non-
compete had been received.3 Synergy’s CEO, Steve Halliwell (“Halliwell”),
2
Synergy asserted below that it did not receive Ahern’s letter and did not learn
of Reese’s employment with Ahern until May 2017.
3
The checklist showed that a drug test form and Reese’s executed W-4 form
were received as these documents were checked off on the checklist, but the non-
compete agreement was not checked off as having been received.
3
testified below that as part of his evaluation of this situation, he communicated with
Jamie Sawyer (“Sawyer”), the Synergy employee who claimed to have witnessed
Reese sign the non-compete agreement. Sawyer confirmed to Halliwell that he
witnessed Reese sign the non-compete agreement.4 Synergy asserted at trial that,
based on the foregoing information, Synergy sent a demand letter to Reese and
Ahern expressing its intent to enforce the non-compete. Synergy explained to Ahern
that it could not locate the signed non-compete, but that it intended to proceed under
a lost contract theory supported by Sawyer’s testimony. As of the trial below,
Synergy had never found, and consequently was unable to produce, the non-compete
agreement that Synergy claims Reese signed. After receiving the demand letter and
discussing the missing non-compete agreement with Synergy and Reese, Ahern and
its legal counsel decided to terminate Reese’s employment. Reese was then
unemployed for approximately 30 days before he found a new job.
In the proceedings below, Reese filed a complaint against Synergy containing
two counts for violations of the federal Fair Labor Standards Act and a claim for
tortious interference with an advantageous business relationship.5 Based on Reese’s
4
Sawyer later testified at trial that there was a possibility that Reese did not
sign the non-compete agreement.
5
Count III of Reese’s Complaint was merely labeled “tortious interference
claim,” but the claim clearly asserted that the alleged tortious interference was with
an at-will employment relationship. The trial court and both parties treated the claim
as a claim for tortious interference with a business relationship, as opposed to
tortious interference with a contract.
4
assertion of federal claims, Synergy removed the case to the United States District
Court for the Middle District of Florida. After the parties reached a settlement of
the federal claims, the federal court remanded the tortious interference claim back to
state court.
Upon remand, Reese filed a motion for leave to amend his complaint to assert
a claim for punitive damages, which the trial court granted. As the basis for this
motion, Reese asserted that the non-compete agreement either did not exist or was
null and void, and that Synergy knew at the time that Synergy sent its demand letter
to Ahern that the agreement either did not exist or was null and void.
Prior to trial, both parties filed competing motions for summary judgment.
Synergy’s motion for summary judgment asserted that: (1) Reese could not
overcome Synergy’s competition privilege; (2) Florida’s impact rule barred Reese’s
claim for emotional distress damages; and (3) the evidence did not support an award
of punitive damages. Reese’s motion for summary judgment asserted that Synergy
interfered with his employment with Ahern and that the interference was intentional.
The trial court denied Synergy’s motion and granted Reese’s motion. The trial court
determined that Synergy had intentionally interfered with Reese’s employment with
Ahern, but that there were disputed issues of fact concerning whether such
interference was justified, whether the interference caused Reese to suffer damages,
the amount of such damages, and the applicability of Synergy’s affirmative defenses.
5
The case proceeded to trial. At trial, Reese testified about his lost wages and
the emotional distress he suffered as a result of Synergy’s conduct. He explained
that the termination caused difficulties between him and his wife, he felt shamed,
that he was unable to sleep at night, and that he felt terrible for being unable to
provide for his family. Reese became withdrawn from his wife and children and
embarrassed at having to explain to his children why he could not provide for them.
Reese did not testify that he suffered any physical injuries or that he sought any
medical treatment for his emotional distress.
After Reese rested his case, Synergy made multiple motions for directed
verdict. Synergy moved for directed verdict on liability on Reese’s tortious
interference claim based on the argument that Synergy’s actions were justified and
protected by the competition privilege. The trial court denied the motion, finding
that a question remained as to whether Synergy carried its burden of establishing
that its actions were protected by the competition privilege.
Synergy also sought directed verdict on the issue of punitive damages on the
ground that Reese presented no evidence of intentional misconduct or gross
negligence as required to support a claim for punitive damages. The trial court
agreed with Synergy’s argument and granted this motion.
Synergy then moved for directed verdict on the issue of Reese’s claim for
emotional distress damages. Synergy argued that Reese’s claim for emotional
6
distress damages was barred by the impact rule because Reese did not suffer any
physical impact as a result of Synergy’s actions. The trial court held that the impact
rule does not apply to intentional torts and, on that basis, denied the motion.
Synergy renewed all of its motions for directed verdict at the close of all the
evidence. The trial court again denied the motions that it had denied at the close of
Reese’s case.
After the trial, the jury returned a verdict finding in favor of Reese on his claim
for tortious interference. Specifically, the jury found that Synergy used improper
methods to interfere with Reese’s employment, that Synergy’s improper inference
was a legal cause of loss or damage to Reese, that Reese should be awarded damages
to compensate for loss of wages and benefits in the amount of $36,643.50, and that
Reese should be awarded damages to compensate for emotional pain and mental
anguish in the amount of $50,000.00. Synergy filed a motion to set aside the verdict
based on the same grounds that it asserted in its motions for directed verdict. The
trial court denied Synergy’s motion and entered a final judgment in favor of Reese
in accordance with the jury verdict. This appeal followed.
Analysis
As to Synergy’s argument that the trial court erred by denying Synergy’s
motion for directed verdict and motion to set aside the verdict on the issue of liability
on Reese’s tortious interference claim, we find there was ample evidence to support
7
the trial court’s ruling. We affirm the trial court’s denial of these motions without
further discussion. We write, however, to address the applicability of the impact
rule to this case – which we find to be a difficult question.
I. The Applicability of the Impact Rule to Intentional Torts
Simply put, Florida’s jurisprudence concerning the impact rule as it pertains
to intentional torts is unclear.
The Florida Supreme Court first recognized the impact rule in International
Ocean Telegraph Co. v. Saunders,
14 So. 148, 151 (Fla. 1893). See R.J. v. Humana
of Fla., Inc.,
652 So. 2d 360, 362-63 (Fla. 1995) (“The impact rule has had a long
legal history in this state, beginning with this Court’s decision in International
Ocean”). In International Ocean, a plaintiff sued a telegraph company for its failure
to timely transmit an urgent telegram from a hospital advising the plaintiff that his
wife was dying and that he was needed at the hospital. 14 So. at 148. After receiving
the message from the hospital, the telegraph company took over 60 hours to deliver
it to the plaintiff. Id. at 148-49. By the time the plaintiff received the telegram, his
wife had already died. Id. The plaintiff sued the telegraph company for the mental
distress he suffered as a result of not being at his wife’s side when she died and not
being able to attend her funeral. Id. at 149. The jury found in favor of the plaintiff
and awarded him damages for emotional distress. Id. On appeal, the Florida
Supreme Court reversed the award of emotional distress damages. Id. at 152. The
8
Court held that in an action sounding in tort but arising out of a contract, where the
plaintiff suffered mental distress alone without any accompanying physical injury or
suffering, the plaintiff could not recover damages for such purely emotional distress.
Id.
International Ocean involved negligence, not an intentional tort. Since
recognizing the impact rule in International Ocean, the Florida Supreme Court has
repeatedly described the impact rule as something that, by definition, applies only to
negligence actions. See Kirksey v. Jernigan,
45 So. 2d 188, 189 (Fla. 1950) (“This
court is committed to the rule, and we re-affirm it herein, that there can be no
recovery for mental pain and anguish unconnected with physical injury in an action
arising out of the negligent breach of a contract whereby simple negligence is
involved.” (emphasis added)); Champion v. Gray,
478 So. 2d 17, 18 (Fla. 1985)
(discussing “the longstanding Florida rule that a plaintiff must suffer a physical
impact before recovering for emotional distress caused by the negligence of another”
(emphasis added)); R.J.,
652 So. 2d at 362 (“In essence, the impact rule requires that
before a plaintiff can recover damages for emotional distress caused by the
negligence of another, the emotional distress suffered must flow from physical
injuries the plaintiff sustained in an impact.” (quoting Reynolds v. State Farm Mut.
Auto. Ins. Co.,
611 So. 2d 1294, 1296 (Fla. 4th DCA 1992) (internal quotations
omitted)) (emphasis added)); Gonzalez v. Metro. Dade Cnty. Pub. Health Tr., 651
9
So. 2d 673, 674 (Fla. 1995) (“The ‘impact doctrine’ which evolved from the
common law of England, requires that a plaintiff sustain actual physical impact in
order to recover for the negligent infliction of emotional distress.” (emphasis
added)); Tanner v. Hartog,
696 So. 2d 705, 707 (Fla. 1997) (“Generally stated, the
impact rule requires that before a plaintiff can recover damages for emotional
distress caused by the negligence of another, the emotional stress suffered must flow
from physical injuries the plaintiff sustained in an impact.” (emphasis added));
Gracey v. Eaker,
837 So. 2d 348, 355-56 (Fla. 2002) (“The ‘impact rule’ requires
that a plaintiff seeking to recover emotional distress damages in a negligence action
prove that the emotional distress flows from physical injuries the plaintiff sustained
in an impact upon his person.” (quoting R.J.,
652 So. 2d at 362 (internal quotations,
alterations omitted)) (emphasis added)); Rowell v. Holt,
850 So. 2d 474, 477-78 (Fla.
2003) (“The [impact] rule requires that before a plaintiff can recover damages for
emotional distress caused by the negligence of another, the emotional distress
suffered must flow from physical injuries sustained in an impact.” (quoting R.J.,
652
So. 2d at 362 (internal quotations omitted)) (emphasis added)); S. Baptist Hosp. of
Fla., Inc. v. Welker,
908 So. 2d 317, 320 (Fla. 2005) (“The impact rule, which is
well established in this state, requires that before a plaintiff can recover damages for
emotional distress caused by the negligence of another, the emotional distress
suffered must flow from physical injuries the plaintiff sustained in an impact.”
10
(quoting R.J.,
652 So. 2d at 362 (internal quotations omitted)) (emphasis added));
Willis v. Gami Golden Glades, LLC,
967 So. 2d 846, 850 (Fla. 2007) (“In Florida,
the prerequisites for recovery for negligent infliction of emotional distress differ
depending on whether the plaintiff has or has not suffered a physical impact from an
external force.” (emphasis added)); Fla. Dept. of Corr. v. Abril,
969 So. 2d 201, 206
(Fla. 2007) (“The impact rule, as applied in Florida, requires that before a plaintiff
can recover damages for emotional distress caused by the negligence of another, the
emotional distress suffered must flow from physical injuries the plaintiff sustained
in an impact.” (quoting R.J.,
652 So. 2d at 362 (internal quotations omitted))
(emphasis added)).
The purpose of the impact rule is to ensure the authenticity of mental distress
claims. Gonzalez, 651 So. 2d at 674; see also R.J.,
652 So. 2d at 362. The Florida
Supreme Court has stated that such a rule is necessary because “emotional harm is
difficult to prove, resultant damages are not easily quantified, and the precise cause
of such injury can be elusive.” Rowell,
850 So. 2d at 478. “[A]llowing recovery for
injuries resulting from purely emotional distress would open the floodgates for
fictitious or speculative claims.” Gracey,
837 So. 2d at 355 (quoting R.J.,
652 So.
2d at 362).
While the Florida Supreme Court has repeatedly reaffirmed the applicability
of the impact rule to negligence actions, the Court has also carved out numerous
11
exceptions to the impact rule for specific torts sounding in negligence. See e.g.
Gracey,
837 So. 2d at 357 (recognizing an exception for negligent breach of a duty
of confidentiality as to the release of sensitive personal information); Abril,
969 So.
2d at 207-08 (recognizing an exception for “when a laboratory or other health care
provider is negligent in failing to keep confidential the results of an HIV test”); Kush
v. Lloyd,
616 So. 2d 415, 422-23 (Fla. 1992) (recognizing an exception for wrongful
birth resulting from negligent medical advice); Tanner,
696 So. 2d at 708
(recognizing an exception for negligent medical care resulting in a child being
stillborn); Champion,
478 So. 2d at 18-196 (recognizing an exception where a
plaintiff was in the sensory perception of physical injuries negligently inflicted upon
a close family member and where the plaintiff suffered a discernible physical injury);
Rowell,
850 So. 2d at 474 (recognizing an exception for negligent attorney
malpractice under certain circumstances).
The causes of actions for which the Florida Supreme Court has created
exceptions appear to all fall within a class of actions for which the foreseeable harms
flowing from the negligent conduct are predominantly emotional in nature. The
Court summarized its view on the exceptions it has created as follows:
The impact rule is not, however, an inflexible, unyielding rule of law,
so sacred that it must be blindly followed without regard to context. If
6
The Florida Supreme Court has also referred to Champion as a modification
of the impact rule rather than as an exception. See Zell v. Meek,
665 So. 2d 1048,
1053 n.7 (Fla. 1995).
12
we were to ascribe such weight to the doctrine, the impact rule itself
would exceed the parameters of its underlying justifications.
Exceptions to the rule have been narrowly created and defined in a
certain very narrow class of cases in which the foreseeability and
gravity of the emotional injury involved, and lack of countervailing
policy concerns, have surmounted the policy rationale undergirding
application of the impact rule.
Rowell,
850 So. 2d at 478.
Our review of the case law demonstrates that every case in which the Florida
Supreme Court has applied the impact rule to bar a plaintiff from recovering
emotional distress damages was a negligence case. Since recognizing the impact
rule in International Ocean, there has never been a case in which the Florida
Supreme Court has applied the impact rule to bar a plaintiff from recovering
emotional distress damages resulting from an intentional tort. The Florida Supreme
Court has never stated in any case that the impact rule applies to intentional torts as
a general matter. When the Court has discussed the applicability (or more precisely,
the inapplicability) of the impact rule to intentional torts, it has almost always been
in the context of justifying its creation or recognition of exceptions to the impact rule
for certain causes of action sounding in negligence.
For example, in Kush, the Florida Supreme Court recognized an exception to
the impact rule for wrongful birth resulting from negligent medical advice. In doing
so, the Court cited to the Restatement (Second) of Torts for the proposition that the
impact rule “is inapplicable to recognized torts in which damages often are
13
predominately emotional, such as defamation or invasion of privacy.”
616 So. 2d at
422 (citing Restatement (Second) of Torts §§ 569, 570, 652H cmt. B (Am. L. Inst.
1977)). The Court reasoned that if the impact rule does not apply to defamation and
invasion of privacy, which result in predominantly emotional damages, it should not
preclude recovery for the mental anguish flowing from a wrongful birth, where such
harm is equally foreseeable and certainly more grievous. Id. Since Kush, the Court
has utilized this same comparison to justify recognizing additional exceptions to the
impact rule. See Gracey,
837 So. 2d at 356-57 (holding that the impact rule should
not bar recovery of emotional distress damages in an action for negligent breach of
a duty of confidentiality as to the release of sensitive personal information because
“[t]he emotional distress that [plaintiffs] allege they have suffered is at least equal
to that typically suffered by the victim of a defamation or an invasion of privacy”);
Abril,
969 So. 2d at 207-08 (“Because the only reasonable damages arising from a
breach of [the statute governing confidentiality of HIV test results] are emotional
distress, and because this emotional damage would be akin to that suffered by
victims of defamation or invasion of privacy, we conclude they should not be barred
by the impact rule.”).
Notably, in Kush and Gracey, the Court did not state that defamation and
invasion of privacy are “exceptions” to the impact rule, i.e., that they are within the
scope of the rule but nonetheless carved out as exceptions. Rather, the Court stated
14
that the impact rule was “inapplicable” to these causes of action. Gracey,
837 So. 2d
at 356; Kush,
616 So. 2d at 422. The Court made clear the distinction between the
inapplicability of the impact rule and exceptions to the impact rule in Rowell, in
which the Court stated:
The impact rule does not apply to recognized intentional torts that result
in predominantly emotional damages, including the intentional
infliction of emotional distress, defamation, and invasion of privacy.
While classification has not been consistent throughout our
jurisprudence, intentional torts have been deemed exclusions from, as
opposed to exceptions to, the impact rule.
850 So. 2d at 478 n.1 (internal citations omitted, emphasis added).
The Court’s statement that the impact rule does not apply to certain intentional
torts – recognized intentional torts that result in predominantly emotional damages
– could be read to imply that the impact rule does apply to intentional torts generally;
thus the use of the narrower language to describe the subset of intentional torts to
which the impact rule does not apply. However, despite the first sentence of this
passage seeming to describe only a particular subset of intentional torts that are not
within the scope of the impact rule, the Court appears to recognize in the second
sentence of this passage that the Court has not brought intentional torts within the
scope of the impact rule in the first place. Indeed, we can find no holding from the
Florida Supreme Court applying the impact rule to an intentional tort. There is not
even a statement from the Court in dicta in any case stating that the impact rule
applies generally to intentional torts. A particular subset of intentional torts cannot
15
be an exception to the impact rule if the impact rule has never been extended to
encompass intentional torts in the first place.
The proposition that the impact rule does not apply to intentional torts seems
to find support in Abril, but that case too is unclear. In Abril, in describing the
exceptions the Court has created to the impact rule, the Court stated:
Although this Court has upheld the viability of the impact rule, it has
recognized exceptions where a plaintiff may recover for emotional
damages even though he or she suffered no impact or physical
manifestation of the injuries. These exceptions, however, “have been
narrowly created and defined in a certain very narrow class of cases in
which the foreseeability and gravity of the emotional injury involved,
and lack of countervailing policy concerns, have surmounted the policy
rationale undergirding the application of the impact rule.” Rowell v.
Holt,
850 So. 2d 474, 478 (Fla. 2003). For example, we have noted that
the impact rule does not apply to any intentional torts, such as
defamation, invasion of privacy, and intentional infliction of emotional
distress.
Id. at 478 n.1.
969 So. 2d at 206-07 (emphasis added). However, the Court’s description of
intentional torts as an example of an “exception” to the impact rule implies
intentional torts are in fact within the scope of the impact rule – which contradicts
the Court’s statement in Rowell that “intentional torts have been deemed exclusions
from, as opposed to exceptions to, the impact rule.” Rowell,
850 So. 2d at 478 n.1.
And the citation given by the Court in Abril to support its description of intentional
torts as an example of an “exception” to the impact rule is actually the Supreme
Court’s footnote in Rowell stating that intentional torts are not exceptions to the
16
impact rule but are instead exclusions that are outside the scope of the impact rule.
969 So. 2d at 206-07 (citing Rowell,
850 So. 2d at 478 n.1)
Additionally, the Court stated in Abril that “the impact rule does not apply to
any intentional torts,” but then employs a “such as” clause that appears to specify
only a certain group of intentional torts to which the impact rule does not apply.
Moreover, the rest of the footnote in Rowell to which the Court cites for this
proposition in fact made a narrower statement than the statement in Abril that “the
impact rule does not apply to any intentional torts.” Instead, the footnote in Rowell
to which Abril cites states: “The impact rule does not apply to recognized intentional
torts that result in predominantly emotional damages, including the intentional
infliction of emotional distress, defamation, and invasion of privacy.”
850 So. 2d at
478 n.1. As discussed above, the Court’s statement that the impact rule does not
apply to a certain subset of intentional torts could reasonably be read to imply that
the impact rule does apply to intentional torts generally.
Thus, while the above-described statement in Abril seems to broadly state that
the impact rule does not apply to any intentional torts, it also seems to imply that
intentional torts are within the scope of the impact rule – because it describes
intentional torts as an exception to the impact rule and intentional torts cannot be an
exception to the rule unless they are within the scope of the rule in the first place.
Moreover, it is not clear that the Court intended to speak so broadly when it stated
17
that “the impact rule does not apply to any intentional torts” because the authority to
which the Court cites for this proposition does not speak so broadly and in fact makes
a narrower statement and indicates that the impact rule may apply to some intentional
torts. On other hand, again, if one focuses on the statement in footnote 1 in Rowell
that “intentional torts have been deemed exclusions from, as opposed to exceptions
to, the impact rule,” this in fact does support the proposition that the impact rule does
not apply to any intentional torts because they are, by definition, outside the scope
of the rule.
Other cases add to the confusion. In Kirksey, an intentional tort case in which
the Florida Supreme Court declined to apply the impact rule, the plaintiff sued an
undertaker for wrongfully taking the body of the plaintiff’s deceased child without
permission and then refusing to return the body after the plaintiff demanded it.
45
So. 2d at 189. The plaintiff sought emotional distress damages and punitive
damages.
Id. The trial court dismissed the plaintiff’s complaint based on its
conclusion that the plaintiff could not recover emotional distress damages or
punitive damages.7
Id. On appeal, the Florida Supreme Court found that the conduct
alleged by the plaintiff could sustain an award of punitive damages.
Id. The Supreme
7
The plaintiff in Kirksey sought other damages as well, but those damages
alone were lower than the amount necessary for the trial court to have jurisdiction.
Kirksey,
45 So. 2d at 188-89.
18
Court reversed the trial court and, in discussing the plaintiff’s claim for emotional
distress damages, stated:
This court is committed to the rule, and we re-affirm it herein, that there
can be no recovery for mental pain and anguish unconnected with
physical injury in an action arising out of the negligent breach of a
contract whereby simple negligence is involved. Dunahoo v. Bess,
146
Fla. 182,
200 So. 541, following International Ocean Telegraph
Company v. Saunders,
32 Fla. 434,
14 So. 148,
21 L.R.A. 810.
But we do not feel constrained to extend this rule to cases founded
purely in tort, where the wrongful act is such as to reasonably imply
malice, or where, from the entire want of care of attention to duty, or
great indifference to the persons, property, or rights of others, such
malice will be imputed as would justify the assessment of exemplary or
punitive damages. See 15 Am. Jur., Damages, Sec. 179, page 596;
Restatement of Torts, Section 47(b). The right to recover, in such cases,
is especially appropriate to tortious interference with rights involving
dead human bodies, where mental anguish to the surviving relatives is
not only the natural and probable consequence of the character of wrong
committed, but indeed is frequently the only injurious consequence to
follow from it.
Id. First, it is unclear what the Court meant by “cases founded purely in tort,” as
negligence actions are tort actions as well. However, presumably the Court intended
this statement to refer to intentional torts. Second, the Court’s statement that it
declined to extend the impact rule to cases “where the wrongful act is such as to
reasonably imply malice, or where . . . such malice will be imputed as would justify
the assessment of exemplary or punitive damages” could be read to imply that the
Court would have applied the impact rule to an intentional tort that did not involve
actual malice or conduct that justified an award of punitive damages. Otherwise, the
19
Court could have resolved the case by simply holding that the impact rule does not
apply to intentional torts. Instead, the Court decided the case on the narrower
holding that the impact rule does not apply to intentional torts involving malice or
conduct that justifies punitive damages, seemingly leaving open the question of
whether the Court would have applied the impact rule to an intentional tort that did
not involve malice or conduct that justified punitive damages.
In other instances, the Court has stated that “the impact rule does not apply
where emotional damages are a consequence of conduct that itself is a freestanding
tort apart from any emotional injury.” Hagan v. Coca-Cola Bottling Co.,
804 So. 2d
1234, 1241 (Fla. 2001) (quoting Tanner,
696 So. 2d at 708 (quoting Kush,
616 So.
2d at 415)). Nearly every intentional tort except intentional infliction of emotional
distress would seem to be a “freestanding tort” that exists separate from emotional
injury. Thus, this language appears to imply that the impact rule does not apply to
intentional torts. However, the Florida Supreme Court has never defined
“freestanding tort” and has never specifically utilized this language to hold that the
impact rule does not apply to intentional torts as a general matter. This language
must also be viewed in light of the foregoing cases which could be read to imply that
the impact rule does apply to intentional torts. Moreover, in Abril, its most recent
case concerning the impact rule, the Florida Supreme Court said that the impact rule
“appears not to apply to ‘freestanding torts’ which exist regardless of what
20
emotional damages may accompany these torts,” thus leaving open the possibility
that it does apply to at least some “freestanding torts” that exist without emotional
damages.
969 So. 2d at 207 (emphasis added).
Ultimately, with the exception of the Florida Supreme Court’s holding in
Kirksey that the impact rule does not apply to intentional torts that involve actual
malice or that justify the imposition of punitive damages, all of the Florida Supreme
Court’s other statements regarding the applicability of the impact rule to intentional
torts are dicta because the Court has never actually applied the impact rule in any
case involving an intentional tort that did not involve actual malice or conduct that
justified punitive damages. See Pedroza v. State,
291 So. 3d 541, 547 (Fla. 2020)
(“Any statement of law in a judicial opinion that is not a holding is dictum. A
holding consists of those propositions along the chosen decisional path or paths of
reasoning that (1) are actually decided, (2) are based upon the facts of the case, and
(3) lead to the judgment.” (internal quotations, citations omitted)). The Florida
Supreme Court certainly has never squarely held that the impact rule does or does
not apply to intentional torts as a general matter.
The absence of an express holding from the Florida Supreme Court regarding
whether the impact rule applies to intentional torts leads us to the following
decisional analysis. First, prior to 1893, the impact rule was not recognized in
Florida. The Florida Supreme Court first recognized the impact rule in a negligence
21
case, International Ocean, in 1893. The holding of International Ocean was that
the impact rule applied in a negligence case. Since that time, the Florida Supreme
Court has repeatedly defined the impact rule as a rule that, by definition, applies only
to negligence actions. The Florida Supreme Court has never applied the impact rule
to bar recovery of emotional damages resulting from an intentional tort, has never
stated that the impact rule applies generally to intentional torts, and, with the
exception of Kirksey where the Court declined to apply the impact rule to an
intentional tort, has only discussed the applicability of the impact rule to intentional
torts in dicta in the context of creating exceptions to the impact rule for certain
negligence actions.
Despite the lack of clarity in Florida’s jurisprudence on the impact rule, with
holdings from the Florida Supreme Court recognizing the impact rule in negligence
cases and defining the rule as something that applies only to negligence cases, and
no holding from the Court ever extending or applying the impact rule to intentional
torts, we conclude that the impact rule does not apply to intentional torts.
II. Reid v. Daley
Perhaps the strongest evidence of confusion in Florida’s jurisprudence
regarding the applicability of the impact rule to intentional torts is that despite a
relatively recent and seemingly broad statement from the Florida Supreme Court that
22
the impact rule does not apply to any intentional torts8, Abril,
969 So. 2d at 206-07,
the First District Court of Appeal held as recently as 2019 that the impact rule does
apply to intentional torts. In Reid v. Daley, the plaintiff filed a lawsuit in circuit
court “alleging that he was the victim of fraud, deceit, dishonesty, and
misrepresentation.”9 276 So. 3d at 879. The plaintiff’s alleged economic damages
were only $4,500.00, which was below the required amount in controversy for the
circuit court to have jurisdiction.10 Id. The plaintiff alleged emotional distress
damages that were sufficient to establish the circuit court’s jurisdiction. Id. The
defendant filed a motion to dismiss the plaintiff’s complaint, arguing that the impact
rule barred the plaintiff from recovering emotional distress damages and that,
therefore, the plaintiff could not meet the jurisdictional amount-in-controversy for
circuit court. Id. The trial court agreed with the defendant and granted the motion
to dismiss. Id. at 879-80. On appeal, the First District Court applied the impact rule
to the plaintiff’s intentional tort claims and, since the plaintiff did not allege that he
suffered any physical impact, held that the plaintiff was barred from recovering
8
The Second District Court of Appeal has likewise stated that “The impact
doctrine has no application to intentional torts . . . .” Rivers v. Grimsley Oil Co., Inc.,
842 So. 2d 975, 976 (Fla. 2d DCA 2003).
9
The Reid opinion does not delineate in detail the specific causes of action
asserted by the pro se plaintiff in that case but all of the alleged wrongs discussed in
the opinion are intentional torts.
10
At the time of the trial court proceedings in Reid, the minimum amount-in-
controversy for circuit court jurisdiction in Florida was $15,000.00. 276 So. 3d at
880.
23
emotional distress damages. Id. at 880-81. Accordingly, the First District Court
affirmed the dismissal of the plaintiff’s complaint. Id. at 881. In doing so, the First
District Court relied upon some of the unclear language discussed above in this
opinion. Specifically, the First District Court reasoned that “[t]he impact rule does
not apply . . . to a ‘very narrow class of cases’ in which the foreseeable harms are
predominantly emotional in nature.” Id. at 880 (citing Rowell,
850 So. 2d at 480;
Tanner,
696 So. 2d at 708). Because the plaintiff’s intentional tort claims did not
fall “within any recognized exception to the impact rule,” the First District Court
held that the plaintiff’s intentional tort claims were subject to the impact rule. Id. at
881.
Thus, as demonstrated by Reid, the First District Court appears to have viewed
the language utilized by the Florida Supreme Court in its impact rule jurisprudence
as implying that the impact rule generally applies to intentional torts but that some
intentional torts are exceptions to the impact rule. While we acknowledge the
language from the Florida Supreme Court relied upon by the First District Court in
Reid, for the reasons stated above, we disagree with the First District Court that the
impact rule applies to intentional torts. For this reason, we certify this decision to
be in direct conflict with Reid.11
11
In an opinion that did not discuss the impact rule, the First District Court
previously upheld an award of emotional distress damages on a claim for an
intentional tort that did not involve a physical impact to the plaintiff. Indeed, it was
24
III. The Instant Case
Because we determine that the impact rule does not apply to intentional torts,
we affirm the trial court’s rulings on Synergy’s motion for directed verdict and
motion to set aside the verdict concerning the issue of whether the impact rule barred
Reese from recovering emotional distress damages. However, even if we had
determined that the impact rule applied to intentional torts generally, we would still
hold that the impact rule does not apply to the tort of intentional interference with
an advantageous business relationship.
As discussed above, assuming the Florida Supreme Court’s holdings place
intentional torts within the scope of the impact rule as a general matter, the Florida
Supreme Court has stated that the impact rule does not apply to two categories of
torts: (1) torts that result in predominantly emotional damages, including the
intentional infliction of emotional distress, defamation, and invasion of privacy,
Rowell,
850 So. 2d at 478 n.1; and (2) torts “where emotional damages are a
consequence of conduct that itself is a freestanding tort apart from any emotional
injury.” Hagan,
804 So. 2d at 1241 (quoting Tanner,
696 So. 2d at 708); see also
Abril,
969 So. 2d at 206-07.
a claim for tortious interference with a business relationship. See Albritten v. Gandy,
531 So. 2d 381, 388 (Fla. 1st DCA 1988). It does not appear that any party raised
the impact rule in Albritten.
25
While the Florida Supreme Court has never defined what constitutes a
“freestanding tort,” intentional interference with an advantageous business
relationship would appear to be a freestanding tort that exists separate and apart from
any emotional injury. Indeed, in this case, the jury found Synergy liable for
economic damages in the form of lost wages. Had Reese suffered no emotional
distress, Reese still would have recovered his lost wages separate and apart from any
claim for emotional distress. Accordingly, even if the impact rule applies to
intentional torts as a general matter, we hold that it is not applicable to the tort of
intentional interference with an advantageous business relationship.12
Lastly, even if we had determined that the impact rule applied to the tort of
intentional interference with an advantageous business relationship, we still would
not apply the impact rule in this case because we cannot exclude the possibility that
the jury found that Synergy acted with actual malice. As noted above, in Kirksey,
the Florida Supreme Court held that the impact rule does not apply “where the
12
The antecedent question to whether the impact rule bars recovery of
emotional distress damages on a claim for tortious interference is whether the
common law allowed recovery of such damages on a tortious interference claim in
the first place. Neither party raised this issue below or on appeal. However, it
appears that the common law did allow recovery of emotional distress damages on
a claim for tortious interference with an advantageous business relationship. See
Restatement (Second) of Torts § 774A (1979); 44B Am. Jur. 2d Interference § 58
(“The damages recoverable for tortious interference may include emotional distress
if such damages can be reasonably expected to result from the interference.”); see
also Albritten, 531 So.2d at 388 (upholding an award of emotional distress damages
on a claim for tortious interference with a business relationship).
26
wrongful act is such as to reasonably imply malice, or where, from the entire want
of care of attention to duty, or great indifference to the persons, property, or rights
of others, such malice will be imputed as would justify the assessment of exemplary
or punitive damages.” Kirksey,
45 So. 2d at 189.
Intentional interference with an advantageous business relationship could
certainly be committed with or without actual malice. In this case, for example, if
Synergy knew that it did not have an enforceable non-compete agreement with Reese
and sent the demand letter anyway, Synergy would have committed intentional
interference and would have acted with actual malice. On the other hand, if Synergy
honestly and reasonably thought it had an enforceable non-compete with Reese but
was just mistaken because Reese in fact never signed the non-compete, such
interference would still be intentional interference but Synergy would not have acted
with actual malice.
Under the circumstances of this jury verdict, we do not know whether the jury
found that Synergy acted with actual malice, but we cannot exclude the possibility.
Sawyer testified at trial that he believed he saw Reese sign the non-compete
agreement, and Halliwell testified that he made the decision to send the demand
letter to Ahern after confirming that with Sawyer. However, Synergy did not
produce a signed non-compete agreement, and Synergy’s own new hire checklist did
not indicate that Reese signed the non-compete. The jury was also entitled to reject
27
the testimony of both Sawyer and Halliwell. See Lynch v. State,
304 So. 3d 837, 841
(Fla. 1st DCA 2020) (“Jurors are instructed that they may accept or reject any
witnesses’ testimony . . . .”); Wynne v. Adside,
163 So. 2d 760, 763 (Fla. 1st DCA
1964) (“[A] jury is not required to accept a witness’ testimony in its entirety or
wholly reject it, for the jury may accept such portions of a witness’ testimony as they
may deem credible and consistent with the proven circumstances and probabilities
and at the same time reject other portions which they deem incredible or inconsistent
with the proven circumstances and probabilities.”). Take away (or even just
discount) the testimony of Sawyer and Halliwell, which the jury was entitled to do,
and you are left with Synergy having sent a demand letter to enforce a non-compete
agreement with Reese without any good faith basis to believe that Synergy had an
enforceable non-compete, or perhaps at least with great indifference as to whether
Synergy had an enforceable non-compete. For this reason, we cannot exclude the
possibility that the jury determined that Synergy acted with malice when it
intentionally interfered with Reese’s employment with Ahern.
The trial court’s grant of Synergy’s motion for directed verdict on the issue of
punitive damages also does not resolve the issue of malice. A defendant may not be
held liable for punitive damages unless the trier of fact determines, based on clear
and convincing evidence, that the defendant was guilty of intentional misconduct or
gross negligence. § 768.72, Fla. Stat. (2008). The jury reached its verdict both on
28
liability on Reese’s tortious interference claim and on the emotional distress
damages based on a preponderance of the evidence standard. The fact that the trial
court determined that a directed verdict was appropriate on the issue of punitive
damages based on a clear and convincing evidence standard does not resolve the
issue of whether the jury determined, based on a preponderance of the evidence
standard, that Synergy acted with actual malice (or great indifference) in interfering
with Reese’s employment with Ahern.
Because we cannot exclude the possibility that the jury determined that
Synergy acted with malice in committing the tort of intentional interference with an
advantageous business relationship against Reese, we would find that the trial court
correctly declined to apply the impact rule in this case even if the impact rule did
generally apply to the tort of intentional interference with an advantageous business
relationship.
CONCLUSION
Based on the foregoing, we hold that the impact rule does not apply to
intentional torts and, accordingly, we affirm the trial court’s rulings in full.
However, we acknowledge that there is significant confusion in Florida’s
jurisprudence concerning the applicability of the impact rule to intentional torts.
Indeed, the First District Court very recently applied the impact rule to an intentional
tort. Even if it were clear that the impact rule applied to intentional torts as a general
29
matter, given the cases discussed herein, it would still be a difficult question as to
whether the impact rule applies to the tort of intentional interference with an
advantageous business relationship both generally and under the facts of this case.
For these reasons, pursuant to Article V, Section 3(b)(4) of the Florida Constitution,
we certify the following two questions to be of great public importance:
(1) Subject to exceptions previously recognized by the Supreme Court of
Florida, does the impact rule generally apply to intentional torts?
(2) Does the impact rule apply to the tort of tortious interference with an
advantageous business relationship and, if so, does the impact rule apply when such
tort is committed with actual malice?
Further, we certify this decision to be in direct conflict with Reid v. Daley,
276 So. 3d 878 (Fla. 1st DCA 2019).
AFFIRMED; CONFLICT CERTIFIED; QUESTIONS CERTIFIED.
ORFINGER, R.B., Associate Senior Judge, concurs.
SMITH, J., concurs in part and dissents in part, with opinion.
_____________________________
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING
AND DISPOSITION THEREOF IF TIMELY FILED
_____________________________
SMITH, J., concurring in part, dissenting in part.
One of the clearest, recent holdings of the Florida Supreme Court regarding
the scope of the impact rule is as follows:
30
The impact rule does not apply to recognized intentional
torts that result in predominantly emotional damages,
including the intentional infliction of emotional distress,
see Eastern Airlines, Inc. v. King,
557 So. 2d 574, 576–77
(Fla.1990), defamation, see Miami Herald Publishing Co.
v. Brown,
66 So. 2d 679, 681 (Fla.1953), and invasion of
privacy, see Cason v. Baskin,
155 Fla. 198,
20 So. 2d 243,
251 (1944). While classification has not been consistent
throughout our jurisprudence, intentional torts have been
deemed exclusions from, as opposed to exceptions to, the
impact rule. See Eastern, 557 So. 2d at 579 (Ehrlich, C.J.,
specially concurring) (reiterating that a physical
manifestation of psychological trauma is not required in
connection with intentional infliction of emotional
distress). But see R.J.,
652 So. 2d at 363 (discussing
Eastern in the context of exceptions to the impact rule).
There is, however, no cognizable action for simple
negligence resulting in psychological trauma, alone,
unless the case fits within one of the narrow exceptions to
the impact rule. See R.J.,
652 So. 2d at 363; Brown v.
Cadillac Motor Car Div.,
468 So. 2d 903, 904 (Fla.1985).
Rowell v. Holt,
850 So. 2d 474, 478 n. 1 (Fla. 2003); see also Fla. Dept. of Corr. v.
Abril,
969 So. 2d 201, 206–07 (Fla. 2007) (“For example, we have noted that the
impact rule does not apply to any intentional torts, such as defamation, invasion of
privacy, and intentional infliction of emotional distress.”) (citing Rowell,
850 So. 2d
at 478 n. 1); So. Baptist Hosp. of Fla., Inc. v. Welker,
908 So. 2d 317, 320 (Fla. 2005)
(“[T]he impact rule is inapplicable to recognized intentional torts that result in
predominantly emotional damages such as intentional infliction of emotional
distress, defamation, or invasion of privacy claims.”) (citing Rowell,
850 So. 2d at
478 n. 1); Kush v. Lloyd,
616 So. 2d 415, 422 (Fla. 1992) (“Similarly, the impact
31
doctrine also generally is inapplicable to recognized torts in which damages often
are predominately emotional, such as defamation or invasion of privacy.
Restatement (Second) of Torts §§ 569, 570, 652H cmt. b (1977).”). In Rowell, the
supreme court sets forth three intentional torts which are presently exempted from
the impact rule: intentional infliction of emotional distress, invasion of privacy, and
defamation. Rowell,
850 So. 2d at 478 n. 1. In listing these three, the court clarifies
that these are the type of torts that “result in predominantly emotional damages.”
Id.
Intentional interference with an advantageous business relationship is not a
recognized exemption to the impact rule. Unlike torts such as defamation or
intentional infliction of emotional distress, the predominant damage experienced
from the tort of intentional interference with an advantageous business relationship
is pecuniary in nature rather than emotional. For this reason, I would find it is within
the scope of the impact rule. Applying the impact rule to the present facts, I concur
with the majority that the jury’s award for economic damages stands, but the award
for emotional pain and suffering should be reversed.
In its historical review of decisions discussing the impact rule, the majority
limits the rule’s application to actions sounding in negligence. I would reach the
opposite conclusion in looking at the history of the rule itself.
As acknowledged by the majority and several decisions of other Florida
courts, the impact rule finds its roots in International Ocean Tel. Co. v. Saunders,
32
14 So. 148 (Fla. 1893). See, e.g., R.J. v. Humana of Florida, Inc.,
652 So. 2d 360,
362 (Fla. 1995) (“The impact rule has had a long legal history in this state, beginning
with this Court’s decision in International Ocean[.]”). In International Ocean, a
hospital superintendent presented a message to the International Ocean Telegraph
Company for immediate transmission to the plaintiff, whose wife at the time was
near death. Rather than deliver immediately, the message was finally wired to the
plaintiff over 60 hours after it was received and 10 hours after the death of plaintiff’s
wife. The plaintiff sued and recovered a judgment against the telegraph for $1,200,
a sizeable award for the day. While the majority would focus on the fact that the
claim against the telegraph was for negligence, the Florida Supreme Court stated the
issued thusly:
To this charge, exception was taken, and the error assigned
thereon presents the real issue involved in the cause: Can
an action be sustained, and can damages be admeasured,
for the breach of a contract that results in mental suffering
alone, without any accompanying physical injury or
suffering, and without any concomitant damage to the
person, character, reputation, or property?
14 So. at 149 (emphasis added). The court framed the central issue as one of breach
of contractual duties and reversed the award of noneconomic damages further
stating:
In the case under consideration, the plaintiff's suit, though
sounding in tort, is for compensation only, for the breach
by the defendant telegraph company of its contract
33
promptly to deliver a telegram summoning him to the
deathbed of his wife. His only injury, resulting directly
from such breach of contract, was mental suffering and
disappointment in not being able to attend upon his wife
in her last moments, and to be present at her funeral. The
resultant injury is one that soars so exclusively within the
realms of spirit land that it is beyond the reach of the courts
to deal with, or to compensate by any of the known
standards of value.
14 So. at 152 (emphasis added). The court’s continued analysis clearly reveals that
negligence was neither the focus nor limitation of the court’s rationale and decision.
After reviewing cases from several jurisdictions involving varying causes of
action, including intentional torts such as libel, seduction, and forcible ejection, the
court made the following observation of the state of the existing law:
From these authorities it seems to have been the settled
rule of law, prior to the doctrine applied by the Texas
courts to the breach of contracts by telegraph companies
for the transmission or delivery of telegraphic
communications relating to domestic affairs, that mental
suffering was never allowed to be considered as an
element of damages for which pecuniary compensation
could be awarded, except (1) in cases of torts, where there
was some physical injury and bodily suffering, in which
cases, whether there were any circumstances justifying
exemplary damages or not, the mental suffering, incident
to, connected with, and flowing directly from the physical
injury was permitted to be considered in connection with
the physical pain, both taken together, but not the one
disconnected from the other; and (2) in cases founded
purely in tort, where the negligence was so gross as to
reasonably imply malice, or where, from the entire want
of care or attention to duty, or great indifference to the
persons, property, or rights of others, such malice will be
34
imputed as would justify the assessment of exemplary or
punitive damages; and (3) in cases growing out of
contract, in the one exceptional case of the breach of a
contract to marry.
14 So. at 151. The court did not limit the impact rule to actions involving negligence,
rather, the language quite broadly encompasses “torts.” Id.
The Florida Supreme Court again addressed the impact rule in terms clearly
outside the negligence construct in Kirksey v. Jernigan,
45 So. 2d 188 (Fla. 1950).
In Kirksey, the court considered whether the impact rule should apply to the
intentional tort of tortious interference with dead bodies. In allowing a recovery for
mental suffering and anguish, the court held:
This court is committed to the rule, and we re-affirm it
herein, that there can be no recovery for mental pain and
anguish unconnected with physical injury in an action
arising out of the negligent breach of a contract whereby
simple negligence is involved.
But we do not feel constrained to extend this rule to cases
founded purely in tort, where the wrongful act is such as
to reasonably imply malice, or where, from the entire want
of care of attention to duty, or great indifference to the
persons, property, or rights of others, such malice will be
imputed as would justify the assessment of exemplary or
punitive damages.
45 So. 2d at 189 (internal citations omitted).
Three more points raised by the majority will be addressed.
• Has the Florida Supreme Court excluded all intentional torts from the impact
rule?
35
The majority concludes that language by the court in Rowell and Abril could
be read to mean that the court excluded all intentional torts from the impact rule’s
application. As discussed above, the Rowell court stated:
The impact rule does not apply to recognized intentional
torts that result in predominantly emotional damages,
including the intentional infliction of emotional distress,
defamation, and invasion of privacy. While classification
has not been consistent throughout our jurisprudence,
intentional torts have been deemed exclusions from, as
opposed to exceptions to, the impact rule. There is,
however, no cognizable action for simple negligence
resulting in psychological trauma, alone, unless the case
fits within one of the narrow exceptions to the impact rule.
Rowell,
850 So. 2d at 478 n. 1 (all internal citations omitted) (emphasis added). The
majority states, “despite the first sentence of this passage seeming to describe only
a particular subset of intentional torts that are not within the scope of the impact rule,
the Court appears to recognize in the second sentence of this passage that the Court
has not brought intentional torts within the scope of the impact rule in the first place.”
I would disagree with that assessment. The supreme court has in Rowell described
certain recognized intentional torts as “exempted” from the rule, and certain classes
of negligence actions as “exceptions” to the rule. Had the Florida Supreme Court
meant to expressly exclude all intentional torts from the scope of the rule, the court
could have at any point in the last 100 years said, “all intentional torts are excluded
from application of the impact rule.” The court has never done so.
36
The majority then relies on the following language from Fla. Dept. of Corr.
v. Abril,
969 So. 2d at 206–07, “For example, we have noted that the impact rule
does not apply to any intentional torts, such as defamation, invasion of privacy, and
intentional infliction of emotional distress. [Rowell] at 478 n. 1.” While the Abril
court included the word “any” as a descriptor of “intentional torts” when citing the
Rowell decision, this does nothing to change the court’s pronouncement in Rowell
or the meaning of the sentence itself. The court left on the express list of currently
exempted intentional torts (defamation, invasion of privacy, and intentional
infliction of emotional distress), inferring that “any intentional torts” was limited to
that list and torts of a similar nature. It would be akin to a park sign reading, “Persons
are not permitted to bring any dogs into the park such as Pit Bulls, Doberman
Pinschers, and Rottweilers.” Never would such a sign be interpreted to prohibit a
park attendee from bringing a toy poodle. The three torts listed by the Abril court
are those that meet the description set forth in Rowell, that being torts which “result
in predominantly emotional damages.” I cannot conclude that intentional
interference with an advantageous business relationship results predominantly in
emotional damages like the torts expressly excluded in Rowell.
• Can the emotional damages be affirmed based on an implied finding of
malice?
37
The second argument to be addressed is the majority’s opinion that “even if
we had determined that the impact rule applied to the tort of intentional interference
with an advantageous business relationship, we still would not apply the impact rule
in this case because we cannot exclude the possibility that the jury found that
Synergy acted with actual malice.” The malice defense cited by the majority stems
from the Kirksey decision and the following excerpt from the holding: “But we do
not feel constrained to extend this rule to cases founded purely in tort, where the
wrongful act is such as to reasonably imply malice, or where, from the entire want
of care of attention to duty, or great indifference to the persons, property, or rights
of others, such malice will be imputed as would justify the assessment of exemplary
or punitive damages.” Kirksey,
45 So. 2d at 189 (emphasis added).
While proof of actual malice could have been raised had the lower court and
jury considered the impact rule, it was Mr. Reece, the plaintiff below, who
successfully argued to the lower court that the impact rule should not apply. Had
the impact rule been considered, the trial court could have instructed the jury on
making a finding of malice to permit emotional damages despite the lack of a
physical impact. Because such an instruction was never given to the jury, the issue
was unpreserved and any resultant error was invited.
As a final point, the record itself does not irrefutably support the existence of
malice. Malice is not an element of intentional interference with an advantageous
38
business relationship. Additionally, Mr. Reece testified at trial he was unaware of
anyone at Synergy having malice toward him.13
• Is intentional interference with an advantageous business relationship a
freestanding tort?
The last argument of the majority to be addressed (which is not an argument
raised by either party on appeal) is the assertion that intentional interference with an
advantageous business relationship is a freestanding tort, and therefore the impact
rule should not apply. For this assertion, the majority relies on language from the
Florida Supreme Court in Kush v. Lloyd,
616 So. 2d 415, 422 (Fla. 1992):
However, we are not certain that the impact doctrine ever
was intended to be applied to a tort such as wrongful birth.
Prosser and Keeton state that the impact doctrine should
not be applied where emotional damages are an additional
“parasitic” consequence of conduct that itself is a
freestanding tort apart from any emotional injury. W. Page
Keeton et al., Prosser and Keeton on the Law of Torts §
54, at 361–65 (5th ed.1984). The American Law Institute
is in general accord. Restatement (Second) of Torts § 47
13
Mr. Reese testified at trial as follows:
Q: Mr. Reese, while working at Synergy, did you
have reason to believe that anyone at Synergy did not like
you or held malice toward you?
A: Not that I recall.
* * *
Q: So as you sit here today, you cannot identify any
Synergy employee who you believe held you in some kind
of contempt?
A: Not to my knowledge.
39
& § 47 cmt. b (1965). Obviously, the Lloyds have a claim
for wrongful birth even if no emotional injuries had been
alleged.
Wrongful birth is the only example that currently exists of a “freestanding tort.”
Wrongful birth is a tort sounding in negligence; it is not an intentional tort.
The majority concedes that the term “freestanding tort” has not been expressly
defined by any court, however the majority proceeds to define it as any tort that
“exists separate and apart from any emotional injury.” The clear problem with the
majority’s definition of “freestanding tort” comes back to the premise of this dissent.
The Florida Supreme Court has repeatedly held that defamation, invasion of privacy,
and intentional infliction of emotional distress are “recognized intentional torts”
exempted from the impact rule which “primarily result in emotional damages.” See
e.g., Rowell,
850 So. 2d 474, 478 n. 1 (Fla. 2003) (emphasis added). Defamation,
for instance, can encompass economic as well as emotional and reputational
damages thereby existing “separate and apart from any emotional injury.” Thus,
under the majority’s definition, defamation would be a freestanding tort. So why
would the supreme court then need to say it is a “recognized exemption” to the
impact rule? A freestanding tort would not require “exemption” from the impact
rule. I am not inclined to extend the phrase “freestanding tort” to go beyond the one
and only tort the Florida Supreme Court has placed in this category so far: a
negligence claim for wrongful birth.
40
As to certification of a question to the Florida Supreme Court, I agree with
my colleagues that a question should be certified. I would restate and condense the
majority’s certified questions to the following:
Does Florida’s impact rule apply to a claim for tortious interference with an
advantageous business relationship?
For the reasons noted above, I respectfully dissent in part.
_____________________________
Michael Fox Orr and Megan Claire Comunale, of Orr | Cook, Jacksonville, for
Appellant.
Scott C. Adams and N. Ryan Labar, of Labar & Adams, P.A., Orlando, for Appellee.
41