FLORIDA BC HOLDINGS, LLC D/B/A SYNERGY EQUIPMENT v. JAY E. REESE ( 2023 )


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  •                  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
    

Document Info

Docket Number: 23-1379

Filed Date: 12/21/2023

Precedential Status: Precedential

Modified Date: 12/21/2023