Brenner v. Professional Service Industries, Inc., 89-166-CIV-T-17(C).
Decision Date | 04 May 1989 |
Docket Number | No. 89-166-CIV-T-17(C).,89-166-CIV-T-17(C). |
Citation | 710 F. Supp. 1336 |
Parties | David R. BRENNER, et al., Plaintiffs, v. PROFESSIONAL SERVICE INDUSTRIES, INC., et al., Defendants. |
Court | U.S. District Court — Middle District of Florida |
Katherine Harasz and John W. Wilcox, Mesirov, Gelman, Jaffe, Cramer & Jamieson, Tampa, Fla., for plaintiffs.
William S. Josey, Alpert, Josey & Grilli, P.A., Tampa, Fla., for Professional Service Industries, Inc.
ORDER ON MOTION TO DISMISS
This cause is before the Court on Defendant Professional Service Industries, Inc.'s motion to dismiss Counts II and III of the amended complaint, filed April 14, 1989, and response thereto, filed April 28, 1989.
A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that Plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). A trial court, in ruling on a motion to dismiss, is required to view the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1947).
Count II of the amended claim asserts a claim for libel. In support thereof, Plaintiffs allege the following:
Defendant asserts that Count II should be dismissed because the publication was made under qualified or conditional privilege and therefor it is necessary to plead express malice.
A qualified or conditional privilege arises when an otherwise libelous communication is made in good faith on any subject matter by one having an interest therein, or in reference to which he has a duty, to a person having a corresponding interest or duty. Nodar v. Galbreath, 462 So.2d 803 (Fla.1984); citing 19 Fla.Jur.2d Defamation and Privacy, s58 (1980). Florida courts have found the following elements essential to the finding of such a privilege: 1) good faith, 2) an interest to be upheld, 3) a statement limited in its scope to this purpose, 4) a proper occasion, and 5) publication is a proper manner. Lundquist v. Alewine, 397 So.2d 1148 (Fla. 5th D.C.A. 1981). Where there is evidentiary dispute as to existence or non-existence of a privilege there is a mixed question for jury determination. Knepper v. Genstar Corp., 537 So.2d 619 (Fla. 3d D.C.A.1988).
The amended complaint here asserts that the testing done by Defendant did not follow the appropriate testing procedures and was done in a negligent manner. The Court finds that the allegations of the amended complaint raises factual issues concerning the existence of a qualified or conditional privilege, including the question of good faith and appropriate manner. Therefore, the question cannot be answered, as a matter of law, at this time and in the context of this motion to dismiss.
Defendant also contends that the prayer for punitive damages in Count II should be dismissed for failure to state a cause of action. The standard for awarding punitive...
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...v. Travelers Indemnity Co., 343 So.2d 816 (Fla.1977); Crane v. Loftin, 70 So.2d 574 (Fla.1954); Brenner v. Professional Service Industries, Inc., 710 F.Supp. 1336, 1338 (M.D.Fla.1989); S.H. Investment and Development Corp. v. Kincaid, 495 So.2d 768, 770 (Fla. 5th DCA 1986); American Federat......