Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co.

• Decision Date: 30 June 1994
• Docket Number: No. 82649,82649
• Citation: 639 So.2d 606
• Parties: , 19 Fla. L. Weekly S347 LEVIN, MIDDLEBROOKS, MABIE, THOMAS, MAYES & MITCHELL, P.A., et al., Appellants, v. UNITED STATES FIRE INSURANCE COMPANY, Appellee.
• Court: Florida Supreme Court

Page 606

639 So.2d 606

63 USLW 2115, 19 Fla. L. Weekly S347

LEVIN, MIDDLEBROOKS, MABIE, THOMAS, MAYES & MITCHELL, P.A.,

et al., Appellants,

v.

UNITED STATES FIRE INSURANCE COMPANY, Appellee.

No. 82649.

Supreme Court of Florida.

June 30, 1994.

James R. Green of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for plaintiffs-appellants.

Charles Cook Howell, III of Howell, O'Neal & Johnson, Jacksonville, for defendant-appellee.

C. Rufus Pennington, III of Margol & Pennington, P.A., Jacksonville, amicus curiae for the Academy of Florida Trial Lawyers.

OVERTON, Justice.

We have for review Levins, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Co., No. 92-2984 (11th Cir. Oct. 29, 1993) (order certifying question), in which the Eleventh Circuit Court of Appeals found that it is unclear whether Florida courts would extend the "litigation privilege" to actions based on tortious interference with a business relationship and certified the following question to this Court:

WHETHER CERTIFYING TO A TRIAL COURT AN INTENT TO CALL OPPOSING COUNSEL AS A WITNESS AT TRIAL IN ORDER TO OBTAIN COUNSEL'S DISQUALIFICATION, AND LATER FAILING TO SUBPOENA AND CALL COUNSEL AS A WITNESS AT TRIAL, IS AN ACTION THAT IS ABSOLUTELY IMMUNE FROM A CLAIM OF TORTIOUS INTERFERENCE WITH A BUSINESS RELATIONSHIP BY VIRTUE OF FLORIDA'S LITIGATION PRIVILEGE.

Id. at 8. We have jurisdiction pursuant to article V, section 3(b)(6), of the Florida Constitution. For the reasons expressed, we answer the certified question in the affirmative.

The stipulated facts of this case are as follows. A personal injury action was filed against Daniel Ornamental Iron Company (Daniel Ornamental). United, the insurance company for Daniel Ornamental, failed to settle the case within its primary policy limits of $500,000, and the case proceeded to trial, which resulted in a judgment against Daniel Ornamental in the amount of $863,287. Thereafter, Morrison Assurance Company (Morrison Assurance), Daniel Ornamental's excess insurance carrier, retained Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. (Levin firm) on a contingency fee basis to bring a bad faith action against United for its failure to settle the personal injury suit within the policy limits. The Levin firm had also represented the plaintiff in the underlying personal injury case against Daniel Ornamental.

In answering interrogatories in the bad faith litigation, Morrison Assurance listed Lefferts L. Mabie, an attorney with the Levin firm, as one of several people who had knowledge of United's alleged bad faith. After receiving the answers to the interrogatories, United moved to disqualify Mabie and the Levin firm as Morrison Assurance's attorneys. In moving to disqualify Mabie and the Levin firm, United certified to the trial court that it would be calling Mabie as a witness at trial. As a result of United's certification, the trial judge disqualified Mabie and the Levin firm as counsel for Morrison Assurance. United, however, never subpoenaed Mabie for trial, never called him as a witness at trial, and never notified the court that it would not be calling him as a witness. At trial, a final judgment was entered in favor of Morrison Assurance against United in the amount of $638,237.

In this action, the Levin firm sued United in federal court for tortious interference with a business relationship, alleging that United intentionally disqualified Mabie to prevent the Levin firm from representing Morrison Assurance. United moved to dismiss this action on the grounds that its actions in the bad faith litigation were protected by the absolute immunity afforded to statements or actions taken during a judicial proceeding. The federal district court granted United's motion to dismiss and entered judgment in United's favor. On appeal, the Eleventh Circuit Court of Appeals certified the foregoing question to this Court, finding that it is unclear whether Florida courts would extend this type of immunity to a tortious interference with a business relationship action that was based on misconduct in a judicial proceeding.

In answering the certified question, we first examine the origins of the immunity afforded to statements or actions taken during a judicial proceeding. Traditionally, defamatory statements made in the course of judicial proceedings are absolutely privileged, no matter how false or malicious the statements may be, so long as the statements are relevant to the subject of inquiry. Fridovich v. Fridovich, 598 So.2d 65 (Fla.1992). Consequently, the torts of perjury, libel, slander, defamation, and similar proceedings that are based on statements made in connection with a judicial proceeding are not actionable. Wright v. Yurko, 446 So.2d 1162 (Fla. 5th DCA 1984). The immunity afforded to statements made during the course of a judicial proceeding extends not only to the parties in a proceeding but to judges, witnesses, and counsel as well. Fridovich; Cox v. Klein, 546 So.2d 120 (Fla. 1st DCA 1989); Wright.

This absolute immunity resulted from the balancing of two competing interests: the right of an individual to enjoy a reputation unimpaired by defamatory attacks versus the right of the public...