GOVERN. PERSONNEL SERV. v. GOVERN. PERSONNEL MUT.

• Citation: 759 F. Supp. 792
• Decision Date: 14 March 1991
• Docket Number: No. 86-1566-CIV-T-17(A).,86-1566-CIV-T-17(A).
• Parties: GOVERNMENT PERSONNEL SERVICES, INC., et al., Plaintiffs, v. GOVERNMENT PERSONNEL MUTUAL LIFE INSURANCE CO., et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

759 F. Supp. 792

GOVERNMENT PERSONNEL SERVICES, INC., et al., Plaintiffs, v. GOVERNMENT PERSONNEL MUTUAL LIFE INSURANCE CO., et al., Defendants.

No. 86-1566-CIV-T-17(A).

United States District Court, M.D. Florida, Tampa Division.

March 14, 1991.

John R. Newcomer, Yado, Keel, Nelson & Bergmann, P.A., Tampa, Fla., Richard E. Berman, Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, Fla., Elihu H. Berman, Krug, Berman & Silverman, Clearwater, Fla., Christopher Ferguson, Riden, Earle & Kiefner, St. Petersburg, Fla., for plaintiffs.

Gerald W. Nelson, Yado, Salem, Keel, Nelson & Bergman, P.A., Tampa, Fla., for James Roberts.

Richard Candelora, Trenam, Simmons, Kemker, Sharf, Frye & O'Neill, for defendants.

ORDER ON MOTIONS

KOVACHEVICH, District Judge.

The cause is before the Court on responses from both parties to this Court's order of February 22, 1991; motion to adjudicate charging lien; and motion for reconsideration.

MOTION TO ADJUDICATE CHARGING LIEN

Plaintiffs' former counsel Merkle & Magri, P.A. filed a motion to adjudicate a charging lien against Plaintiffs on February 22, 1991. To date no objection has been filed to that motion. The Court has reviewed the motion and finds it well-taken. The Court, therefore, orders that: 1) The instant action shall not be dismissed voluntarily, or by the court, prior to disposition of the charging lien; 2) All parties shall give notice to Merkle & Magri, P.A. of any proceedings intended to terminate the cause of action which effects disbursal of any proceeds obtained or recovered by Plaintiffs; and 3) The Court reserves jurisdiction to determine the amount of the lien and to enforce the lien, if necessary.

MOTION FOR RECONSIDERATION OF SUMMARY JUDGMENT ON COUNT V

Count V asserted a claim of slander and libel against GPM. In its motion, Defendant GPM contended that the count failed to state a cause of action, as a matter of law, because any defamatory statements were privileged and because Plaintiffs consented to any statement made by GPM. On February 22, 1991, this Court granted Defendants' motion for summary judgment on Count V, stating:

There is no genuine dispute here regarding the circumstances regarding the publication of the allegedly defamatory statements. Plaintiff was a former employee of Defendant GPM. A prospective employer, Metropolitan, hired an executive search agent to investigate Plaintiff. Mr. Lovell authorized any of his previous employers to release information regarding various areas, for himself and his company. Defendant GPM responded to the inquiry regarding Plaintiff and addressed each of the areas which Mr. Lovell had indicated he authorized them to address.

The Court finds as a matter of law that the circumstances surrounding the communications in question here, including the addendum sent to Bishop's after the July 12, 1985, letter are indisputedly privileged and the occasion surrounding the communications was a privileged occasion.

The second question then is whether or not Plaintiffs have shown a genuine issue of fact exists as to whether or not there was express malice, or malice in fact, in the making of the privileged communication. The statements need not be based on undisputed facts, the test is whether, as a matter of law, the conclusions were justified under the circumstances. Boehm, at 95. It is unequivocal that all three elements of ill will, hostility, and evil intention to defame and injure and "more" must be shown. Nodar, at 811, fn. 8.

The Court, having reviewed the motion, responses and record in support thereof, is satisfied that Plaintiffs have failed to establish a genuine issue of fact exists on the question of the express malice of Defendants in making the defamatory statements. Defendants did not seek out Bishop's or Metropolitan to defame Plaintiffs, rather they were approached and pressed for information regarding many areas of Plaintiffs' life and business; including mode of living and reputation. The statements do not intrinsically reflect malice. The statements were clearly made on a privileged occasion and there is no genuine issue of fact that Defendants' statements were made with "ill will, hostility, or evil intention to defame and injure."

The motion for reconsideration does not raise any new issues but seeks to relitigate that which has already been considered by the Court and found lacking. The Court finds no basis for reconsideration of its previous dismissal of Count V.

RESPONSES TO COURT ORDER

In the order of February 22, 1991, the Court addressed the issue of whether or not Plaintiffs established a tort independent of the breach of contract, as claimed in Count I of the second amended complaint.

Count I of the second amended complaint alleges common law fraud against the GPM defendants: GPM, Peter Hennessey, III, P.J. Hennessey, and Frank Hoey. Specifically, the second amended complaint states that:

Defendants participated, assisted and/or aided and abetted in the programming of false and fraudulent data and/or the modification or alteration of existing programming contained in the main computer of G.P.M. to methodically, systematically and intentionally understate the amount of business issued by agents of G.P.S., the contest points earned by such agents and the persistency ratings of the G.P.S. agents, thereby intentionally failing to pay G.P.S. the monies it had rightfully earned and further participated, assisted and/or aided and abetted in the distribution of such fraudulent date data in the form of periodic reports to G.P.S.

The

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