Swerhun v. General Motors Corp., 90-932-CIV-T-17B.

• Decision Date: 11 February 1993
• Docket Number: No. 90-932-CIV-T-17B.,90-932-CIV-T-17B.
• Citation: 812 F. Supp. 1218
• Parties: Linda SWERHUN, Plaintiff, v. GENERAL MOTORS CORPORATION, Defendant.
• Court: U.S. District Court — Middle District of Florida

812 F. Supp. 1218

Linda SWERHUN, Plaintiff, v. GENERAL MOTORS CORPORATION, Defendant.

No. 90-932-CIV-T-17B.

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

February 11, 1993.

COPYRIGHT MATERIAL OMITTED

Daniel E. Myers, Tallahassee, FL, for Linda L. Swerhun.

Douglas B. Brown, Charles P. Mitchell, Rumberger, Kirk & Caldwell, P.A., Orlando, FL, for General Motors Corp.

ORDER ON MOTION FOR SUMMARY JUDGMENT

KOVACHEVICH, District Judge.

This cause is before the Court on Defendant, General Motors Corporation's (GM), motions for summary judgment or partial summary judgment as to Plaintiff, Linda Swerhun's, claim for damages related to emotional distress (Docket No. 47), and the liability issue as to Counts I, III and IV (Docket No. 49); responses thereto (Docket Nos. 56 & 57); and consolidated reply memorandum to responses (Docket No. 61).

FACTUAL BACKGROUND

Plaintiff, Linda Swerhun, a shareholder in a GM automobile dealership brought action against GM for breach of fiduciary duty, breach of third-party beneficiary contract, breach of oral contract, and promissory estoppel. Plaintiff further claims that she is entitled to damages for emotional distress she has suffered as a result of GM's actions. GM moved for summary judgment on all counts.

STANDARDS FOR SUMMARY JUDGMENT

This circuit clearly holds that summary judgment should only be entered when the moving party has sustained its burden of showing the absence of a genuine issue as to any material fact when all the evidence is viewed in the light most favorable to the nonmoving party. Sweat v. Miller Brewing Co., 708 F.2d 655 (11th Cir.1983). All doubt as the existence of a genuine issue of material fact must be resolved against the moving party, not assessing the probative value of any evidence. Hayden v. First National Bank of Mt. Pleasant, 595 F.2d 994, 996-97 (5th Cir.1979), quoting Gross v. Southern Railroad Co., 414 F.2d 292 (5th Cir.1969). Factual disputes preclude summary judgment.

The Supreme Court of the United States held, in Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986),

In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322, 106 S.Ct. at 2552, 91 L.Ed.2d at 273.

I. MOTION FOR SUMMARY JUDGMENT RELATING TO PLAINTIFF'S BREACH OF CONTRACT CLAIM

Defendant moves for summary judgment as to the claim for breach of contract. Plaintiff has acknowledged that summary judgment would be proper as to that count in light of the deposition testimony, admissions on file, and applicable law. Therefore, Defendant's motion for summary judgment relating to Plaintiff's breach of contract claim should be granted.

II. MOTION FOR SUMMARY JUDGMENT RELATING TO PLAINTIFF'S CLAIM FOR EMOTIONAL DISTRESS

To be entitled to damages for emotional distress or mental anguish, a plaintiff must comply with Florida's impact rule. The impact rule, simply put, clearly and unequivocally bars recovery for emotional distress absent any direct physical impact upon the plaintiff or tortious conduct so egregious as to justify imputation of malice and assessment of punitive damages. Butchikas 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 Federation of Government Employees v. DeGrio, 454 So.2d 632, 637-39 (Fla. 3d DCA 1984); Peacock v. General Motors Acceptance Corp., 432 So.2d 142, 146 (Fla. 1st DCA 1983); Stetz v. American Casualty Co. of Reading, Pa., 368 So.2d 912 (Fla. 3d DCA 1979), cert. denied, 378 So.2d 349 (Fla.1979). In essence, the rule requires that a plaintiff either prove a physical impact upon his or her person causing the emotional distress or mental anguish or that the defendant's tortious conduct was so egregious as to be deemed malicious so as to warrant punitive damages.

Ms. Swerhun claims that GM's alleged breach of a fiduciary duty is not based on any written contract, but that it is a separate intentional tort for which compensatory damages, including emotional distress and/or mental anguish are proper. Even if Plaintiff's contention is true, the Plaintiff must still demonstrate how that alleged emotional distress or mental anguish was caused by the Defendant's physical impact upon her person or was so egregious as to be compensable. Plaintiff merely claims that because the Defendant's conduct rose to the level of an intentional tort, and because she has suffered emotional distress, she is entitled to damages for her emotional distress. However, that argument overlooks the clear application of Florida's impact rule.

The impact rule applies whether or not the Defendant's alleged breach of fiduciary duty was an intentional tort. Florida clearly applies the impact rule to intentional torts as well as negligence claims. In S.H. Investment and Development Corp. v. Kincaid, 495 So.2d 768, 770 (Fla. 5th DCA 1986), the court clearly held that damages for mental anguish are not recoverable when a defendant made intentional misrepresentations. Furthermore, in Peacock v. General Motors Acceptance Corp., 432 So.2d 142, 146 (Fla. 1st DCA 1983), the court barred recovery of damages for mental anguish or stress recovery when Plaintiff alleged tortious interference with contract. Thus, even if Defendant's conduct rose to the level of being an intentional tort, the Plaintiff has failed to demonstrate how any mental anguish or emotional distress she incurred was due to a physical impact upon her person.

Additionally, the impact rule in Florida holds that absent a physical injury, a plaintiff can recover damages for mental anguish only where it is shown the defendant acted with such malice that punitive damages would be justified. In this case, Plaintiff has failed to aver or demonstrate that the Defendant's alleged tortious conduct rose to the level of acting with such malice so as to justify punitive damages. Therefore, without such a showing, or even an allegation, that the Defendant's alleged tortious conduct was so malicious as to warrant punitive damages, the Plaintiff falls short of meeting the clear requirements of the impact rule as it applies in Florida.

The Plaintiff has failed to establish the existence of a genuine material fact as to liability on the part of General Motors with regards to the Plaintiff's emotional distress and the motion for summary judgment will be granted.

III. MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF'S PROMISSORY ESTOPPEL CLAIM

The necessary elements of a promissory estoppel claim involve:

A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

W.R. Grace and Company v. Geodata Services, 547 So.2d 919, 920 (Fla.1989). The Florida Supreme Court clearly held that to support a claim for promissory estoppel, the promise must be "definite, of a substantial nature, and established by clear and convincing evidence." Further, the court went on to note that a promissory estoppel claim requires "a promise which the promisor should reasonably expect to induce action or forbearance ... and which does induce such action or forbearance...."

Additionally, the Florida Supreme Court stated that whether justice requires enforcement of a promise depends upon:

The reasonableness of the promisee's reliance, on its definite and substantial character in relation to the remedy sought, on the formality with which the promise is made, on the extent to which the evidentiary, cautionary, deterrent and channelling functions of form are met by the commercial setting or otherwise, and on the extent to which such other policies as the enforcement of bargains and prevention of unjust enrichment are relevant.

Id. at 924.

Plaintiff alleges promissory estoppel in that GM "represented to Swerhun that it would allow Swerhun to be `dealer/operator' under its franchise agreement and support her right to acquire majority ownership of a dealership." Plaintiff further alleges that GM "permitted or acquiesced in the removal of Swerhun as the `dealer/operator' and `dealer/owner' of ...