Boehm v. American Bankers Ins. Group, Inc.

• Citation: 557 So.2d 91
• Decision Date: 06 February 1990
• Docket Number: No. 88-2081,88-2081
• Parties: 15 Fla. L. Weekly D343 Frederick L. BOEHM, Appellant, v. AMERICAN BANKERS INSURANCE GROUP, INC., a Florida corp., and Gerald Gaston, Appellees.
• Court: Court of Appeal of Florida (US)

Page 91

557 So.2d 91

15 Fla. L. Weekly D343

Frederick L. BOEHM, Appellant, v. AMERICAN BANKERS INSURANCE GROUP, INC., a Florida corp., and Gerald Gaston, Appellees.

No. 88-2081.

District Court of Appeal of Florida,

Third District.

Feb. 6, 1990.

Frates, Bienstock & Sheehe, James C. Cunningham, Jr. and Terry Bienstock, Miami, for appellant.

Tew, Jorden, Schulte & Beasley, Frank Burt and Michael D. Joblove, Miami, for appellees.

Before BARKDULL, JORGENSON and GERSTEN, JJ.

BARKDULL, Judge.

This is an appeal from a summary final judgment for defendants.

Appellant Boehm instituted an action in 1987 against American Bankers Insurance Group, Inc., hereafter referred to as ABIG, and Gerald Gaston, hereafter referred to as Gaston, alleging tortious interference and defamation. Briefly, the circumstances involved an executive search by an Oklahoma business group which sent a search agent, Mr. Smith, down to Miami to acquire information about Boehm. Boehm had been employed with ABIG between 1972-1980. Smith met with Gaston, President of ABIG, in order to learn more about Boehm. Boehm asserts that at this meeting Gaston called him a homosexual and also accused him of causing ABIG an $8,000,000.00 loss. Appellees' defense was that the statements were protected by a qualified privilege which an employer has when providing information about a former employee. The trial court granted a summary judgment which reads in part as follows:

"Facts As To Which There Is No Genuine Issue

1. This is a defamation and tortious interference action filed by Plaintiff Frederick L. Boehm against his former employer American Bankers Insurance Group ('ABIG') and its President Gerald Gaston ('Gaston'). ABIG and Gaston shall be referred to collectively as 'Defendants.'

2. This action arises out of alleged statements made by Defendant Gaston during an interview initiated by an executive search agent, Tracey Smith, regarding a purported job offer to Plaintiff. At all material times, the executive search agent held himself out as the agent of investors who contemplated hiring Plaintiff as a Chief Executive Officer of an insurance company.

3. Smith initiated the contact with American Bankers by speaking with the personnel department. He told the personnel department that he was 'doing an executive search,' that he did not want to bother the 'Chairman' of the Board 'Mr. Landon,' and asked who would be the 'next in charge.' Smith was referred 'to Mr. Gaston' who 'was number two.'

4. Smith scheduled an interview with Defendant Gaston but did not indicate that the subject of the interview was Frederick L. Boehm until he was in the interview on April 21, 1987.

5. After some social introduction, Smith opened the interview by identifying himself to Gaston as an executive search agent and explaining that Plaintiff was a candidate for the Chief Executive position of an insurance company.

6. Upon Smith identifying the subject of his search, Gaston told Smith 'you're going to hear good things, a lot of good things about Fred.' Gaston further stated that Plaintiff 'really does well, he is extremely bright', and 'everybody liked him.'

7. Despite Defendant Gaston's initial positive comments, Smith continued to solicit further personal information concerning Plaintiff. He informed Gaston that the prospective employers were a 'very moral group', 'extremely religious', and that they wished to employ a 'person beyond reproach', for a 'high profile position'.

8. After Smith had emphasized the 'religious' or 'moral' character of the prospective employers at least 'three' and possibly 'four or five times', Defendant is then alleged to have stated that either 'Fred is a homosexual' or 'there is a rumor that Fred might be a homosexual.' It is also alleged that Defendant Gaston stated that Plaintiff 'cost the company $8,000,000.'

9. Based upon Defendant Gaston's behavior and words, the executive search agent testified that he did not believe that Gaston had any malicious intent in uttering these alleged statements.

Conclusions of Law

1. It is well settled that once a movant for Summary Judgment tenders competent evidence to support his Motion, the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue of fact. Eagle National Bank of Miami v. Burks, 502 So.2d 69 (Fla. 3d DCA 1987). As the Supreme Court explained in Harvey Building, Inc. v. Haley, 175 So.2d 780, 782-83 (Fla.1965):

'To defeat a motion which is supported by evidence which reveals no genuine issue, it is not sufficient for the opposing party merely to assert that an issue does exist. If the moving party presents evidence to support the nonexistence of a material issue, he will be entitled to a summary judgment unless the opposing party comes forward with some evidence which will change the results ...'

Defendants' Communications Were Privileged

2. Florida law recognizes that an employer has a qualified privilege in communicating information about a former employee to a prospective employer. Nodar v. Galbreath, 462 So.2d 803 (Fla.1984); Kellums v. Freight Sales Centers, Inc., 467 So.2d 816 (Fla. 5th DCA 1985) ('Florida recognizes that an employer may claim a qualified privilege in communicating information about a former employee to a prospective employer ...'.) Id. at 817; McCurdy v. Collis, 508 So.2d 380 (Fla. 1st DCA 1987).

3. This privilege extends not only to communications regarding an employee's job performance but also to 'any information which is relevant to the inquiry being made.' (Kellums, 467 So.2d at 817), Riggs v. Cain, 406 So.2d 1202 (Fla. 4th DCA 1981) (an employer 'is pretty much free to communicate his honest opinions about the employee's job performance, and any information so long as it is relevant to the inquiry being made'). In order for the communication to be considered privileged, it need only be 'published upon an occasion that makes it conditionally privileged.' Nodar at 809.

4. Here, there is no genuine issue or dispute that the alleged defamations occurred during an interview between a former employer and an alleged representative of a prospective employer. When, as in the instant case, 'the circumstances surrounding a defamatory communication are undisputed, or are so clear under the evidence as to be unquestionable, then the question of whether the occasion upon which they were spoken was privileged is a question of law to be decided by the Court.' Nodar, 462 So.2d at 810. Since the circumstances surrounding the communications here are undisputedly privileged, the Court finds the occasion upon which the alleged defamations were uttered was a privileged occasion.

5. The executive search agent emphasized the moral and religious character of the prospective employer and doggedly pursued questions regarding the Plaintiff's personal as well as professional character. Since Defendant Gaston was responding to the questions on a privileged occasion, the privilege extends to all 'matters [even if they] would otherwise be actionable.' Nodar, 462 So.2d at 809.

Plaintiff Fails To Show Express Malice To Overcome The Privilege

6. It is well-settled that, 'where a qualified privilege exists, plaintiffs must prove express malice or malice in fact in order to recover.' Schreidell v. Shoter, 500 So.2d 228, 232 (Fla. 3d DCA 1987).

7. The Supreme Court has clearly explained:

The determination that a defendant's statements are qualifiedly privileged eliminates the presumption of malice attaching to defamatory statements by law. The privilege instead raises a presumption of good faith and places upon the plaintiff the burden of proving express malice--that is, malice in fact as defined by the common law doctrine of qualified privilege.

Nodar, at 810. Thus, the Plaintiff must 'affirmatively and expressly to show malice in the publisher.' Coogler v. Rhodes, 38 Fla. 240, 21 So. 109, 112 (1897).

8. The Supreme Court defines express malice as 'ill will, hostility, evil intention to defame and injure.' Nodar 462 So.2d at 811 citing Montgomery v. Knox, 23 Fla. 595, 3 So. 211 (1887). The Supreme Court has unequivocally established that all of the three elements (ill will, hostility and evil intention to defame and injure) and more must be shown. Nodar at 811 fn 8. It is insufficient that the speaker have generalized feelings of hostility and malice towards the Plaintiff. Only if the Plaintiff demonstrates the primary motivation for the statements uttered was express malice, is the privilege overcome. Nodar at 812.

9. Similarly, with regard to tortious interference:

a qualified privilege to interfere is not negated by concomitant evidence of malice. It is only when malice is the sole basis for interference that it will be actionable.

McCurdy v. Collis, 508 So.2d 380, 383 (Fla. 1st DCA 1987).

10. Here there can be no question that the speaker's 'primary motivation' falls within the scope of the privilege. Defendant Gaston did not seek out Tracey Smith and gratuitously opine as to Plaintiff's performance or life-style. Instead, Smith actively sought out Gaston and insistently pressed for information regarding Plaintiff's personal character and life-style. The alleged statements do not intrinsically reflect malice in the speaker. Nor was there a genuine issue that probative competent evidence exists of extrinsic circumstances which would demonstrate malice. Thus, there is no genuine issue of fact that Defendant Gaston's 'primary motivation' in uttering the statements at issue was not express malice. Since the alleged statements were clearly made on a privileged occasion, and since there is no genuine issue of fact that Defendant Gaston did not utter the statements with 'ill will, hostility, evil intention to defame and injure' or that he used the privileged occasion to 'gratify his malevolence', Defendants are entitled to judgment on both the defamation and tortious interference claims as a matter of law."

The appellant contends that the trial court erred by...