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

• Court: District Court of Appeal of Florida
• Decided: December 21, 2023
• Docket: 23-1379
• Status: Published

Opinion

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

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.