AFM Corp. v. Southern Bell Tel. & Tel. Co.
| Decision Date | 15 October 1987 |
| Docket Number | No. 69202,69202 |
| Parties | 12 Fla. L. Weekly 520 AFM CORPORATION, Plaintiff-Appellee, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Defendant-Appellant. |
| Court | Florida Supreme Court |
Christopher Lynch of Adams, Hunter, Angones, Adams, Adams & McClure, Miami, for plaintiff-appellee.
Karen H. Curtis and Stephen B. Gillman of Shutts & Bowen, Miami, for defendant-appellant.
Wayne C. McCall of Ayres, Cluster, Curry, McCall & Briggs, Ocala, for amicus curiae, The Academy of Florida Trial Lawyers.
This case is before us on the following questions certified by the Eleventh Circuit Court of Appeals in AFM Corp. v. Southern Bell Telephone and Telegraph Co., 796 F.2d 1467 (11th Cir.1986):
(1) Can a plaintiff suing exclusively in tort recover lost profits?
If the answer to question 1 is yes,
(2) Can negligent or willful breach of a contract alone constitute an independent tort?
If the answer to question 2 is yes,
(3) Can such a tort be the basis of an award of punitive damages if the other criteria for awarding punitive damages are met?
Id. at 1469. We have jurisdiction. Art. V, § 3(b)(6), Fla. Const. We restate the issues into one question as follows:
Does Florida permit a purchaser of services to recover economic losses in tort without a claim for personal injury or property damage?
Consistent with our decision in Florida Power & Light Co. v. Westinghouse Electric Corp., 510 So.2d 899 (Fla.1987), we answer the question in the negative. We note the certified question in Florida Power & Light concerned the purchase of goods, while the question in this case concerns the purchase of services.
The relevant facts reflect that in March, 1980, AFM Corporation, which sells and services copying machines, entered into an agreement with Southern Bell Telephone and Telegraph Company for including AFM's advertising in the yellow pages. When AFM moved its office, the parties agreed to employ a referral service to assist AFM's prospective customers. When the yellow pages were distributed, AFM's old telephone number was listed which, due to the move, was not the correct current number. Compounding the problem, Southern Bell mistakenly assigned AFM's old phone number to another customer, resulting in an automatic referral system disconnection. After AFM discovered the mistake, Southern Bell reconnected the referral number, but, subsequently, it was again mistakenly disconnected. In asserting a claim for economic losses, AFM chose to proceed solely on a tort theory in the trial court below and specifically announced that it was not basing its tort theory on any agreement between the parties. A more detailed statement of the facts is contained in AFM Corp. v. Southern Bell Telephone and Telegraph Co., 796 F.2d 1467 (11th Cir.1986).
In Florida Power & Light Co., we held that contract principles are more appropriate than tort principles for resolving economic losses resulting from the purchase of a product where there are no personal injury or property damage claims. This holding is consistent with the United States Supreme Court decision in East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986), and is the majority view in this country.
In the instant case, AFM contracted with Southern Bell for advertising services. The contract defined the limitation of liability through bargaining, risk acceptance, and compensation. Having entered into a contract, AFM now seeks economic damages for a negligent breach of the contract, under a tort theory.
In Lewis v. Guthartz, 428 So.2d 222 (Fla.1982), this Court was asked to answer the following certified question:
Where the defendant flagrantly, unjustifiably, and oppressively breaches a contract, and attempts to conceal the breach by the criminal act of making false statements to the government, must the plaintiffs plead and prove that the defendant committed an independent tort against them in order to recover punitive damages?
Id. at 223. We answered that question in the affirmative, holding that there must be a tort "distinguishable from or independent of [the] breach of contract." Id. at 224. In the instant case, AFM has not proved that a tort independent of the breach itself was committed. Consequently, we find no basis for recovery in negligence. Accord Electronic Security Systems Corp. v. Southern Bell Telephone and Telegraph Co., 482 So.2d 518 (Fla. 3d DCA 1986) ( ...
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