EMERGENCY RECOVERY INC BOBBIE CELLER v. GOVERNMENT EMPLOYEES INSURANCE COMPANY (2025)

ORDER

Emergency Recovery, Inc., (ERI) and ERI's owner, Bobbie Celler, sue Government Employees Insurance Company and related entities (collectively, GEICO) for defamation and tortious interference with a business relationship. Second Am. Compl. (Doc. 80). GEICO moves to dismiss the second amended complaint. Mot. to Dismiss (MTD) (Doc. 81). I deny the motion.¹

I. BACKGROUND

ERI is “an entity that represents hospitals and assists providers in recovering amounts owed pursuant to § 627.736, Florida Statutes, commonly known as the ‘PIP law,’ for medical services rendered in treating auto accident victims.” Second Am. Compl. ¶ 18. ERI submits claims to insurance companies, including GEICO. Id. ¶¶ 20–25. A disagreement between ERI and GEICO about the amount GEICO owed on some of these claims led GEICO to sue in state court ERI, Celler, and two hospitals allegedly owned by Tenet that worked with ERI. Id. ¶¶ 27, 58.

To announce the lawsuit, GEICO issued a press release:

In a continuing effort to combat insurance fraud and other deceptive and abusive practices being committed in Florida, GEICO has filed a lawsuit against Bobbie Celler, his collection company and two for-profit Florida hospitals seeking to terminate a scheme it alleges violates Florida law and aimed to mislead the insurer. In its lawsuit, GEICO seeks permanent injunctive and declaratory relief, as well as damages under Florida law, including Florida's Deceptive and Unfair Trade Practices Act. GEICO says that the Florida action is a preview of similar lawsuits that will be filed in the future.

GEICO alleges that the Defendants engaged in a deceptive and misleading scheme in which bills for payment of hospital and professional services were presented in a volume and manner designed to mislead and/or deceive GEICO into believing that the claims were legitimate and that the amounts demanded were actually due and owing, when in fact that was not the case. In addition, GEICO alleges that the deceptive/misleading manner in which the claims were presented was designed to deprive GEICO from determining whether payment was legitimately owed so as to be able to exercise its statutory right to accurately consider and cure disputed payments.

“GEICO has a zero tolerance policy when it comes to insurance fraud and abusive/misleading practices that attempt to advance that fraud,” said Tara Carthew, assistant vice president of claims in GEICO's Lakeland, Florida, office. “These incidents of fraud and related practices hurt consumers because they cause premiums to increase.” Carthew went on to say that GEICO has a long history of seeking out individuals willing to commit fraud. “GEICO intends to file future lawsuits to continue making every effort to protect its customers and the public from fraudulent practices such as those set forth in the Complaint.

Id. ¶ 28.

ERI alleges that the press release was false and defamatory because GEICO's comments suggested “that ERI and Celler conducted their activities in a fraudulent and deceptive manner.” Id. ¶ 29. ERI also alleges that GEICO specifically intended to injure ERI's relationship with its customers through the defamatory comments in the press release. Id. ¶ 54. In addition, ERI alleges that, “during [the state court] litigation,” GEICO offered to dismiss ERI clients Tenet and Conifer if both terminated their agreements with ERI. Id. ¶¶ 57–58. ERI does not explain how Conifer became involved in the state action, but ERI treats Conifer and Tenet as related entities. ERI alleges that its business relationship with Conifer and Tenet was partially terminated because of GEICO's interference. Id. ¶ 62.

After a Florida court dismissed GEICO's action, ERI and Celler sued GEICO. See Order on Mot. to Dismiss (Order) (Doc. 77) at 3 (summarizing the state court litigation). Following a transfer from the Southern District of Florida and then an order dismissing in part ERI's amended complaint, ERI and Celler filed a second amended complaint, pleading one claim each of defamation based on GEICO's press release and one claim of tortious interference. Second Am. Compl. ¶¶ 38–49, 50–63.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” This pleading standard “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ ” Id. (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Id. (quoting Twombly, 550 U.S. at 557).

“To survive a motion to dismiss” for failure to state a claim, a plaintiff must plead sufficient facts to state a claim that is “plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). A claim is plausible on its face when a “plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. When considering the motion, the complaint's factual allegations are accepted “as true” and construed “in the light most favorable to the plaintiff.” Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Consideration is limited “to the well-pleaded factual allegations, documents central to or referenced in the complaint, and matters judicially noticed.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004), abrogated on other grounds by Twombly, 550 U.S. at 544.

III. ANALYSIS

A. The Defamation Claims

Although the Court already ruled on GEICO's first motion to dismiss, (Doc. 77), GEICO raises three new arguments with respect to ERI's defamation claims. Most importantly, GEICO contends that ERI fails to allege falsity, which GEICO insists is an element of a civil defamation claim in Florida. MTD at 5–8. GEICO suggests that the Florida Constitution's “good motives” requirement comes into play only at summary judgment and that modern defamation and constitutional principles support its position. MTD at 8–11. Also, GEICO argues that ERI failed to plead special damages or the existence of a defamatory statement. MTD at 11–15.

Federal Rule of Civil Procedure 12(g)(2) bars these new arguments now. “Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under [Rule 12] must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.” GEICO has already twice moved to dismiss in federal court. (Docs. 8 & 59).² In each of the two previous opportunities, GEICO failed to raise these arguments even though the two defamation claims remain largely the same.

To avoid this result, GEICO asserts that “the Court specifically invited further briefing of issues affecting the defamation analysis.” MTD at 2. True, the earlier order indicated “future briefing [was] warranted” on whether truth is an absolute defense to a civil defamation claim under Florida law or whether falsity is an element of a defamation claim. Order at 9. But explaining that “a clearer understanding of the elements of defamation and any truth-based affirmative defense is necessary to resolve any dispositive motion in this case and to instruct the jury, should one be required,” id. at 9–10, does not equate to suspending Rule 12(g)(2). GEICO thus cannot raise for the first time these three new arguments in its third motion to dismiss.

B. ERI's Tortious Interference Claim

In Florida, “[t]he elements of tortious interference with a business relationship are ‘(1) the existence of a business relationship; (2) knowledge of the relationship on the part of the defendant; (3) an intentional and unjustified interference with the relationship by the defendant; and (4) damage to the plaintiff as a result of the breach of the relationship.’ ” Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812, 814 (Fla. 1994) (omission adopted) (quoting Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126, 1127 (Fla. 1985) (per curiam)).

First, GEICO argues that ERI errs by alleging tortious interference with the relationship between ERI and the community at large. MTD at 15–16. Second, GEICO argues that the alleged interference is justified because GEICO is not a stranger to ERI's business relationship with Conifer and Tenet. Id. at 16–20. Third, GEICO argues that Florida's “litigation privilege” prohibits ERI from relying on actions by GEICO during a state court action. Id. at 20–22. Fourth, GEICO argues that under Florida law a single publication of an alleged defamation gives rise to only a single cause of action, and ERI cannot rely on the press release in bringing both the defamation claim and tortious interference claim. Id. at 22–24.

1. Existence of Business Relationship

The second amended complaint alleges that “GEICO's conduct was intended to injure ERI's reputation with its existing and prospective customers, including vendors, contractors and subcontractors.” Second Am. Compl. ¶ 54. A previous order explained that a nearly identical allegation was insufficient because “no cause of action exists for tortious interference with a business's relationship to the community at large.” Order at 15 (quoting Ethan Allen, 647 So. 2d at 815). To the extent ERI continues to assert tortious interference with ERI's relationship to “the community at large”—or unspecified “vendors, contractors and subcontractors”—the claim fails for the same reason.

The second amended complaint adds a specific business relationship with “Conifer/Tenet.” Second Am. Compl. ¶ 56. ERI alleges GEICO knew of this relationship. Id. ¶¶ 56, 60. These allegations satisfy the first and second elements of ERI's tortious interference claim. MTD at 16 n.6 (recognizing that “ERI purports to now additionally identify a business relationship between ERI and Conifer/Tenet in the Second Amended Complaint”).

2. Stranger to the Business Relationship

A tortious interference claim requires a plaintiff to allege that a defendant carried out “an intentional and unjustified interference” with a business relationship. Ethan Allen, 647 So. 2d at 814 (quoting Cotton, 463 So. 2d at 1127). For an interference to be “unjustified” under Florida law, “the interfering defendant must be a third party, a stranger to the business relationship.” Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 742 So. 2d 381, 386 (Fla. 4th DCA 1999). A party is not a stranger if, for example, the party “has any beneficial or economic interest in, or control over, that relationship.” Palm Beach Cnty. Health Care Dist. v. Pro. Med. Educ., Inc., 13 So. 3d 1090, 1094 (Fla. 4th DCA 2009) (quoting Nimbus Tech., Inc. v. SunnData Prods., Inc., 484 F.3d 1305, 1309 (11th Cir. 2007)). And a party is not a stranger if the party “has a supervisory interest in how the relationship is conducted or a potential financial interest in how a contract is performed.” Id. at 1094.

GEICO argues that it is not a stranger to ERI's business relationship with Conifer and Tenet because it has an interest in how ERI pursues payments of insurance claims from GEICO for services Conifer and Tenet rendered to GEICO's insureds. MTD at 20. GEICO claims that the underlying state court action was initiated only after ERI and GEICO failed to reach an agreement on certain insurance claims. MTD at 18–19; Second Am. Compl. ¶ 26. And GEICO states that the hospital defendants in the state court lawsuit were allegedly owned by Tenet. MTD at 19; Second Am. Compl. ¶ 58. On this basis, GEICO contends that it is no stranger to the relationship among ERI, Conifer, and Tenet. MTD at 20.

ERI responds that GEICO's arguments are not proper in a motion to dismiss. Resp. to Mot. to Dismiss (Resp.) (Doc. 82) at 16. Instead, ERI argues that the allegations are assumed true—that GEICO (1) was not a party to any contract with Conifer or Tenet, (2) did not have a relation to Conifer or Tenet, (3) had no right to interfere in ERI's relations with Conifer and Tenet, and (4) did not control ERI's relations with Conifer and Tenet. Id. ERI argues that, even if GEICO is not considered a stranger to the relationship, the privilege to interfere is not absolute and that determining whether the interference was justified is a fact question. Id. at 17.

GEICO's motion is denied on this basis. Although Florida law recognizes a “privilege to interfere to protect one's own financial ․ interests,” Weisman v. S. Wine & Spirits of Am., Inc., 297 So. 3d 646, 651 (Fla. 4th DCA 2020), this privilege is not absolute, contra MTD at 17 n.7. A plaintiff can recover despite the privilege if the defendant's motive was “purely malicious” or if the defendant used “improper methods.” KMS Rest. Corp. v. Wendy's Int'l, Inc., 361 F.3d 1321, 1327 (11th Cir. 2004); see Berkley Ins. Co. v. Banc of Am. Cmty. Dev. Co., LLC, 386 So. 3d 623, 625 (Fla. 2d DCA 2024) (collecting cases); Morsani v. Major League Baseball, 663 So. 2d 653, 657 (Fla. 2d DCA 1995) (“Where there is a qualified privilege to interfere with a business relationship, the privilege carries with it the obligation to employ means that are not improper.”); Ethyl Corp. v. Balter, 386 So. 2d 1220, 1225 (Fla. 3d DCA 1980) (“[S]o long as improper means are not employed, activities taken to safeguard or promote one's own financial, and contractual interests are entirely non-actionable.” (footnote omitted)).

ERI alleges that GEICO “unjustifiably and intentionally interfered with the specific business relationships existing between ERI and Conifer/Tenet” by publishing the defamatory press release. Second Am. Compl. ¶¶ 28–32, 52–55.³ In other words, ERI alleges that GEICO falsely accused ERI of conducting its activities “in a fraudulent and deceptive manner” to interfere with ERI's relationship with Conifer and Tenet. Id. ¶ 29. These are adequate allegations of “improper methods.” Duty Free Americas, Inc. v. Estee Lauder Companies, Inc., 797 F.3d 1248, 1280 n.9 (11th Cir. 2015) (quoting a version of Florida's Standard Jury Instructions that defined “improper methods” to include “misrepresentations” (quoting Standard Jury Instructions-Civ. Cases (99-1), 778 So. 2d 264, 269 (Fla. 2000)); cf. Shenzhen Kinwong Elec. Co. v. Kukreja, 574 F. Supp. 3d 1191, 1215–16 (S.D. Fla. 2021) (dismissing a tortious interference claim when the counter-plaintiff failed to specifically identify any false statements). As a result, the qualified privilege does not provide a basis for dismissing ERI's tortious interference claim.

3. Litigation Privilege

GEICO next argues that Florida's absolute litigation privilege precludes ERI from relying on GEICO's alleged conduct during the state court action. MTD at 20–22. As GEICO concedes, the previous order concluded that the litigation privilege does not apply to GEICO's press release, which forms one basis for ERI's tortious interference claim. Order at 5–7; MTD at 22 n.10. But GEICO asserts that the privilege provides immunity for the other basis for ERI's tortious interference claim: that GEICO offered to dismiss Conifer and Tenet from the state court litigation in exchange for Conifer's and Tenet's terminating their relationship with ERI. Second Am. Compl. ¶ 58.

Florida law affords absolute immunity to acts “occurring during the course of a judicial proceeding ․ so long as the act has some relation to the proceeding.” Levin, Middlebrooks, Mabie, Thoomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994); see Arko Plumbing Corp. v. Rudd, 230 So. 3d 520, 523–24 (Fla. 3d DCA 2017). Although “[t]he privilege initially developed to protect litigants and attorneys from liability for acts of defamation,” Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1274 (11th Cir. 2004), the privilege now extends “to any tort or statutory cause of action based on false statements or other wrongful conduct,” AGM Invs., LLC v. Bus. L. Grp., P.A., 219 So. 3d 920, 924 (Fla. 2d DCA 2017). As an affirmative defense, courts may consider the privilege “in resolving a motion to dismiss when ‘the complaint affirmatively and clearly shows the conclusive applicability of the defense to bar the action.’ ” Jackson, 372 F.3d at 1277 (quoting Reisman v. Gen. Motors Corp., 845 F. 2d 289, 291 (11th Cir. 1988)); see, e.g., LatAm Invs., LLC v. Holland & Knight, LLP, 88 So. 3d 240, 245 (Fla. 3d DCA 2011).

The absolute litigation privilege extends to actions “taken in the course of settlement negotiations.” Jackson, 372 F.3d at 1275. In Jackson, “the plaintiffs’ state law [tort] claims rest[ed] on allegations that the defendants improperly extracted an unfairly low settlement from the plaintiffs, and negotiated settlement terms that allowed plaintiffs’ counsel to take too high a percentage of the settlement fund.” Id. Although no Florida precedent directly governed the application of the absolute litigation privilege in this context, the Eleventh Circuit ruled that the Florida courts would apply the absolute litigation privilege to preclude the claims of tortious interference and conspiracy to defraud based on defendants’ conduct in settling the case. Id. at 1275–77. The Eleventh Circuit reasoned that because the settlement negotiations were “aimed at steering [the] complex, ongoing, protracted and expensive litigation to a conclusion,” the privilege applied under the Florida rule requiring that conduct occur “during the course of a judicial proceeding and ha[ve] a substantial relation to that proceeding.” Id. at 1276 (emphasis in the original).

Jackson controls here. ERI alleges that GEICO “communicated with Conifer/Tenet during” the state court litigation “demanding that ERI be terminated from their agreements ․ in exchange for being dismissed from the lawsuit.” Second Am. Compl. ¶ 58. These allegations “lay at the heart of the attempts to resolve ․ ongoing judicial proceedings,” and are thus absolutely privileged under Jackson. 372 F.3d at 1277 (explaining that, although framed as an affirmative defense, courts should resolve at the motion to dismiss stage “when the complaint affirmatively and clearly shows the conclusive applicability of the defense to bar the action” (internal quotations omitted)). Because Jackson has not been “overruled by the [Eleventh Circuit] sitting en banc [n]or [have] ‘subsequent decisions of the United States Supreme Court or the Florida courts cast doubt on [the panel's] interpretation of state law,’ ” Kerrivan v. R.J. Reynolds Tobacco Co., 953 F.3d 1196, 1212 (11th Cir. 2020) (quoting Hattaway v. McMillian, 903 F.2d 1440, 1445 n.5 (11th Cir. 1990)), it remains the authoritative interpretation of Florida's litigation privilege in this context.

To avoid Jackson, ERI relies principally on the Florida Supreme Court's decision in DelMonico v. Traynor, but that case concerned claims premised on “statements made by an attorney during ex-parte, out-of-court questioning of a potential, nonparty witness.” 116 So. 3d 1205, 1208 (Fla. 2013). In addressing that “narrow scenario,” the Florida Supreme Court held that the absolute litigation privilege did not protect the attorney from tort claims arising from allegedly defamatory statements made outside of any formal proceeding and directed to a nonparty. Id. at 1220. The Florida Supreme Court based this conclusion on the policy informing “the absolute privilege to issues involving defamation,” where the “defamatory statements at issue were made either in front of a judicial officer or in pleadings or documents filed with the court or quasi-judicial body.” Id. at 1217. In those contexts, the court explained, “the presence of safeguards”—such as the memorialization of the allegedly defamatory statements and the judge's ability to protect the aggrieved party—“facilitates and promotes an unimpeded speaking environment while protecting an individual from false or malicious statements.” Id. In the context of ex-parte, out-of-court questioning, such “safeguards are either unavailable or far less effective.” Id. at 1218. Therefore, only a “qualified privilege” applied to the defendant, requiring the plaintiff “to establish express malice.” Id. at 1208.

DelMonico does not abrogate Jackson. The Florida Supreme Court addressed claims arising out of allegedly defamatory statements made to a nonparty witness, but never addressed the applicability of the absolute litigation privilege to torts based on statements and conduct made during settlement negotiations. Given that “settlements are highly favored” and a common way to resolve civil disputes, Robbie v. City of Miami, 469 So. 2d 1384, 1385 (Fla. 1985), DelMonico’s preclusion of the absolute litigation privilege to defamatory statements under far different circumstances does not provide reason to “predict” that the Florida Supreme Court would decide the issue here differently than Jackson did. See SE Prop. Holdings, LLC v. Welch, 65 F.4th 1335, 1342 (11th Cir. 2023) (explaining that, where the state supreme court has not spoken, courts “must predict how the highest court would decide this case” (quoting Turner v. Wells, 879 F.3d 1254, 1262 (11th Cir. 2018))); infra at 17–18.

Nor do the post-DelMonico “decisions of the state's intermediate appellate courts” cast doubt on Jackson. Welch, 65 F.4th at 1342 (explaining that, absent precedent from the state court, courts are “bound to adhere to decisions of the state's intermediate appellate courts absent some persuasive indication that the state's highest court would decide the issue otherwise” (quoting Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008, 1021 (11th Cir. 2014))); infra at 18–19. ERI has not located a Florida court applying DelMonico to conclude that the absolute litigation privilege does not apply to statements made during settlement negotiations. To the contrary, at least one Florida intermediate appellate court in a post-DelMonico decision has cited Jackson favorably, although that case concerned statements made during a deposition. McCullough v. Kubiak, 158 So. 3d 739, 741 (Fla. 4th DCA 2015). For these reasons, the Florida Supreme Court's holding, limited to the “narrow scenario” presented by DelMonico, 116 So. 3d at 1220, does not give reason to depart from Jackson.

In sum, the absolute litigation privilege protects GEICO's statements made during settlement negotiations, and ERI may not rely on them to state a claim for tortious interference.

4. The Single Action Rule

Because of the absolute litigation privilege, ERI is left to support the tortious interference claim only with GEICO's allegedly defamatory statements in the press release. GEICO argues that, as a result, ERI's tortious interference claim is barred by the “single publication/single action rule,” which GEICO posits prevents a plaintiff from predicating another tort on the same statement as the defamation claim. MTD at 22. ERI responds that the single action rule precludes a plaintiff only “from asserting a failed defamation count as a related tort,” as the rule is meant “to prevent plaintiffs from recasting a failed defamation claim to avoid a statute of limitations or other defamation-related defense.” Resp. at 17–18.⁴

Before Erie Railroad Co. v. Tompkins, a federal judge exercised her “independent judgment as to what the common law of the state is—or should be.” 304 U.S. 64, 71 (1938).⁵ But in Erie, the Supreme Court held that under the Rules of Decision Act, a state's supreme court possessed plenary authority to define the content of the state's common law. Id. at 79–80.⁶ Therefore, in diversity cases, federal courts must now “ascertain and apply” state common law as the state courts declare the law to be. Fid. Union Tr. Co. v. Field, 311 U.S. 169, 177 (1940). In other words, in “adjudicating a matter of state law in a diversity suit,” a federal court acts like “only another court of the State.” King v. Ord. of United Com. Travelers of Am., 333 U.S. 153, 161 (1948) (quoting Guar. Tr. Co. of N.Y. v. York, 326 U.S. 99, 108 (1945)).

Because the “highest state court is the final authority on state law,” Field, 311 U.S. at 177, ordinarily a federal court sitting in diversity first looks to state supreme court precedent, see Guideone Elite Ins. Co. v. Old Cutler Presbyterian Church, Inc., 420 F.3d 1317, 1326 n.5 (11th Cir. 2005) (“Our objective is to determine issues of state law as we believe the Florida Supreme Court would.”). If the state supreme court has spoken, then a federal court must “follow its rule.” Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1348 (11th Cir. 2011).

Absent state supreme court precedent, a federal court “look[s] to decisions of the state's intermediate court of appeals for guidance.” Baldwin v. Express Oil Change, LLC, 87 F.4th 1292, 1302 n.7 (11th Cir. 2023). Although these decisions are not binding on a federal court, Commissioner v. Bosch's Est., 387 U.S. 456, 465 (1967), “[w]here an intermediate appellate state court rests its considered judgment upon the rule of law which it announces, that is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise,” West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237 (1940). In reaching that determination, federal courts may consider “such sources as the Restatements of Law, treatises and law review commentary, and the majority rule.” Putman v. Erie City Mfg. Co., 338 F.2d 911, 917 (5th Cir. 1964) (quotation omitted).⁷ A federal court must “choose the rule which it believes the state [supreme] court, from all that is known about its methods of reaching decisions is likely in the future to adopt.” Id. (quotation omitted). This endeavor requires use of “judicial brains, not a pair of scissors and a paste pot.” Id. at 918 (quoting Arthur L. Corbin, The Laws of the Several States, 50 Yale L.J. 762, 775 (1941)).⁸

Following the Erie method to determine the scope of Florida's single action rule as applied to this case requires that kind of predictive judgment. The Florida Supreme Court has not addressed the scope of the rule in this context where the tort claim arises solely from the same publication as the defamation claim that has not yet failed. In Fridovich v. Fridovich, the Florida Supreme Court held “that the successful invocation of a defamation privilege will preclude a cause of action for intentional infliction of emotional distress if the sole basis for the latter cause of action is the defamatory publication.” 598 So. 2d 65, 70 (Fla. 1992) (emphasis in the original). The Florida Supreme Court reasoned that “a plaintiff is not permitted to make an end-run around a successfully invoked defamation privilege by simply renaming the cause of action and repleading the same facts.” Id. at 69. In dicta, the Florida Supreme Court opined that, “regardless of privilege, a plaintiff cannot transform a defamation action into a claim for intentional infliction of emotional distress simply by characterizing the alleged defamatory statements as ‘outrageous.’ ” Id. at 70 (emphasis in the original).

Fridovich’s holding—that the single action rule prevents an end run around a successful invocation of a defamation privilege—provides support for ERI's view. In that case, the defamation claim failed due to a privilege. ERI's defamation claim both survives and GEICO never argues it had a privilege or other affirmative defense to defeat the defamation claim. The reasoning of Fridovich, to avoid an end-run around a privilege, thus supports ERI's view that the single action rule only bars a tort claim premised on a defamatory statement when a defamation claim has failed.

Fridovich’s dicta, of course, lends some support to GEICO's broader view of the rule. But not as much as GEICO might claim. Fridovich concerned refashioning a defamation claim into a claim for intentional infliction of emotional distress. Essentially, instead of the statement being defamatory, the plaintiff claimed that the statement was outrageous. 598 So. 2d at 70. If the privilege barred the defamation claim, the reasoning behind the single action rule supported barring a closely related tort.

Fridovich does not resolve whether a plaintiff is precluded from bringing a separate tort predicated on the same statement as a defamation claim when a defendant has not successfully invoked an affirmative defense to defamation. Consequently, Erie requires consideration of the decisions of Florida's intermediate appellate courts.

Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So. 2d 607 (Fla. 4th DCA 1975), appears to be the earliest decision applying a form of the single action rule. There, the plaintiff predicated claims of intentional interference with business and libel on the same publications. Id. at 609. The Fourth District Court of Appeal rejected the argument that the plaintiff could bring “two separate causes of action,” “as such actions [were] nothing more than separate elements of damage flowing from the alleged wrongful publications.” Id. at 609. The Fourth District cited a previous decision for the proposition that “ ‘Florida courts have held that a single wrongful act gives rise to a single cause of action, and that the various injuries resulting from it are merely items of damage arising from the same wrong.” Id. (quoting Easton v. Weir, 167 So. 2d 245, 247 (Fla. 2d DCA 1964)). The reason being that a “contrary result might very well enable plaintiffs in libel to circumvent the notice requirements of [§ 770.01, Fla. Stat.][⁹ ] by the simple expedient of redescribing the libel action to fit a different category of intentional wrong.” Id.

Fridovich and Orlando Sports primarily focus on preventing the circumvention of affirmative defenses to defamation claims. Orlando Sports bases its additional reasoning about the “separate elements of damage” deriving from one cause of action on a misreading of Florida precedent. Citing the Second District Court of Appeal's decision in Easton for this point, Easton in turn relies on the Florida Supreme Court's decision in Mims v. Reid, 98 So. 2d 498 (Fla. 1957). In Mims, though, the question was whether the plaintiff, the victim of a car accident, could bring an action for personal injury damages and then bring a separate action for property damages on behalf of plaintiff's insurance carrier. Id. at 499. The Florida Supreme Court answered no: a plaintiff must recover in one action all damages resulting from a single wrongful act. Id. at 499–501. Mims did not address whether a plaintiff could bring multiple claims in a single action based on the same set of facts.

After Orlando Sports, Florida courts have consistently applied the single action rule to prevent evasions of affirmative defenses to defamation claims. For example, in Ovadia v. Bloom, the Third District Court of Appeal affirmed entry of summary judgment on a defamation claim because the statute of limitations had run and on the other tort claims—including intentional interference with an advantageous business relationship—on the basis “that the single publication/single action rule does not permit multiple actions to be maintained when they arise from the same publication upon which a failed defamation claim is based.” 756 So. 2d 137, 140–41 (Fla. 3d DCA 2000) (emphasis in the original) (citing Orlando Sports, 316 So. 2d at 609). Similarly, in Callaway Land & Cattle Co. v. Banyon Lakes C. Corp., the Fourth District Court of Appeal concluded that, because the disparagement of title claim was time barred, “the actions for tortious interference and abuse of process” were also time barred because “they [arose] from the same publication upon which the failed slander of title claim is based.” 831 So. 2d 204, 207–08 (Fla. 4th DCA 2002) (“The rule is designed to prevent plaintiffs from circumventing a valid defense to defamation by recasting essentially the same facts into several causes of action all meant to compensate for the same harm.” (quotation omitted)).

The Fourth District repeated the misstep of Orlando Sports, adding that “a single publication gives rise to a single cause of action,” as “[t]he various injuries resulting from it are merely items of damage arising from the same wrong.” Callaway, 831 So. 2d at 208 (citing Orlando Sports, 316 So. 2d at 609). A special concurrence though noted the confusion that could result from mistreatment of Mims and explained that Orlando Sports is “better understood as not allowing a plaintiff to use creative pleading to bypass the notice requirement imposed by the legislature as a condition precedent to a libel action.” Id. at 210 (Gross, J., specially concurring).

In almost all Florida cases applying the single action rule, Orlando Sports’s miscasting of the Mims rule has not played a dispositive role because the defamation claim failed due to an affirmative defense. The sole exception is International Security Management Group, Inc. v. Rolland, 271 So. 3d 33 (Fla. 3d DCA 2018). There, a negligence claim was based on the same facts as a defamation claim. The Third District Court of Appeal reversed and remanded for a new trial on the defamation claim because of an erroneous jury instruction, and concluded, under the single action rule, that the trial court erred in denying the defendants’ motion for a directed verdict as to the negligence claim. Id. at 47–49. Although relying on precedent explaining that the single action rule prevents a plaintiff from circumventing a successfully invoked defense to defamation, the court stated that “Florida's single publication/single action rule precludes the recasting of defamation claims as additional, distinct causes of action in tort if all of the claims arise from same defamatory publication.” Id. at 48. At bottom, the Third District committed the same error as Orlando Sports, citing precedent applying the Mims rule. See id. (citing Edelman v. Kolker, 194 So. 2d 683, 684 (Fla. 3d DCA 1967)).

Fridovich, the intermediate appellate decisions, and the foundations on which these cases rest suggest that the Florida Supreme Court would apply the single action rule only when a defendant successfully invokes an affirmative defense to a defamation claim.¹⁰ Rolland, in fact, presents the only basis for a different rule, but its reasoning (or lack thereof) fails to persuade.

As an initial matter, Rolland’s articulation of the single action rule defies the ordinary pleading rule in Florida, which allows a plaintiff to “set up in the same action as many claims or causes of action ․ in the same right as the [plaintiff] has.” Fla. R. Civ. P. 1.110(g); see Santiago v. Mauna Loa Invs., LLC, 189 So. 3d 752, 757 (Fla. 2016) (describing alternative pleading as “a routine practice under the civil rules of procedure”). In other words, the plaintiff, as the “master of its complaint,” Am. Int'l Grp., Inc. v. Cornerstone Bus., Inc., 872 So. 2d 333, 338 (Fla. 2d DCA 2004), may present “two separate and independent theories of liability,” Haynes v. Blackshear, 311 So. 3d 163, 171 (Fla. 2d DCA 2020). Thus, a plaintiff is normally “entitled not only to jury instructions on those different theories but also to a verdict form that permits the jury to return a verdict on each of the independent claims.” Id. To be sure, even the narrower version of the single action rule—the one that prevents alternate torts predicated on the same publication when a defendant successfully invokes an affirmative defense—limits a plaintiff's ability to present separate theories of liability, but on the rationale that a plaintiff may not circumvent a defamation privilege by recasting the publication as another tort. See Fridovich, 598 So. 2d at 69.

The broad ruling of Rolland, on the other hand, lacks any policy basis. Indeed, as discussed, Rolland relied almost exclusively on cases applying the narrower version of the rule. See 271 So. 3d at 48. Rolland never justified an extension of the single action rule. Nor did Rolland acknowledge its expansion of the single action rule. Cf. West, 311 U.S. at 237 (explaining that intermediate appellate court precedent should be considered when that court “rests its considered judgment upon the rule of law which it announces”). Also, Rolland appears to rely, at least in part, on a case that forbids the filing of separate actions based on the same facts against the same defendant, not separate causes of action in the same case. See Edelman, 194 So. 2d at 684. In the light of the backdrop of the general rule permitting a plaintiff to choose the causes of action that he pleads and the Florida Supreme Court's articulated rationale for the single action rule, Rolland provides little reason to believe that the Florida Supreme Court would adopt the Third District's approach.

The Florida Supreme Court's dicta in Fridovich does not suggest otherwise. The statement—that “regardless of privilege, a plaintiff cannot transform a defamation action into a claim for intentional infliction of emotional distress simply by characterizing the alleged defamatory statements as ‘outrageous,’ ” 598 So. 2d at 70—is logically limited to the tort of intentional infliction of emotional distress. As the Fifth District Court of Appeal stressed in the case on which Fridovich relied, a plaintiff must “set forth an independent tort for the recovery of damages for emotional distress,” as “[t]hat factor has been an intrinsic, historic aspect of the tort.” Boyles v. Mid-Fla. Television Corp., 431 So. 2d 627, 630 (Fla. 5th DCA 1983) (emphasis in the original); see, e.g., Foshee v. Health Mgmt. Assocs., 675 So. 2d 957, 960 (Fla. 5th DCA 1996) (defining “[i]ntentional infliction of mental distress” as “any outrageous conduct emotionally injurious to the claimant, which conduct is not violative of any other recognized tort”); Williams v. City of Minneola, 575 So. 2d 683, 690 (Fla. 5th DCA 1991) (contrasting the “independent tort” of “intentional infliction of emotional distress” with “emotional distress as an element of damages caused by another tort”). Against this background, Fridovich’s comment is best interpreted as exclusive to the tort of intentional infliction of emotional distress and not broadly barring other torts that a plaintiff could bring alongside defamation.

Under Erie, federal courts must “decide novel questions of state law ‘the way it appears the state's highest court would.’ ” Freeman v. First Union Nat., 329 F.3d 1231, 1232 (11th Cir. 2003) (per curiam) (quoting Ernie Haire Ford, Inc. v. Ford Motor Co., 260 F.3d 1285, 1290 (11th Cir. 2001)). Although the state's intermediate appellate courts might provide evidence as to that answer, in some cases there exists a “persuasive indication that the state's highest court would decide the issue otherwise.” Id. (quoting Ernie Haire Ford, 260 F.3d at 1290). Such is this case. Given that the single action rule arises from the common law powers of Florida courts, see Emerson v. Lambert, 374 So. 3d 756, 760–61 & n.5 (Fla. 2023) (recognizing the Florida judiciary's power to shape common law doctrines), the rationale behind that judge-made rule provides the best evidence for how the Florida Supreme Court would expand or limit the rule going forward, cf. Ramos v. Louisiana, 590 U.S. 83, 104 (2020) (“It is usually a judicial decision's reasoning—its ratio decidendi—that allows it to have life and effect in the disposition of future cases.”). As stated already, that sensible doctrine prevents evasions of affirmative defenses to defamation, and that rationale informs the single action rule's limitations here, permitting an alternative tort. By comparison, Rolland’s ruling is untethered from the Florida Supreme Court's rationale for the single action rule. See Fridovich, 598 So. 2d at 69. Further, Rolland relies on a misinterpretation of Florida Supreme Court precedent forbidding the filing of separate actions, not separate cause of actions. See Edelman, 194 So. 2d at 684 (citing Mims, 98 So. 2d 498). And finally, Rolland runs directly contrary to the Florida Supreme Court's recognition of the “routine practice” of a plaintiff pleading “as many claims or causes of action ․ as the [plaintiff] has.” Santiago, 189 So. 3d at 757 (quoting Fla. R. Civ. P. 1.110(g)). Therefore, I conclude that, where a defendant has not successfully invoked an affirmative defense to defamation, the single action rule presents no bar to a plaintiff's tortious interference claim premised on the same publication.

Applying that prediction here, ERI's tortious interference claim survives the motion to dismiss.

IV. CONCLUSION

Rule 12 bars GEICO's arguments as to the defamation claims now, so those two counts may proceed. Also, even though GEICO is correct that the absolute litigation privilege applies, GEICO's arguments do not provide a basis for dismissing the tortious interference claim.

Accordingly, the following is ORDERED:

1. GEICO's Motion to Dismiss the Second Amended Complaint (Doc. 81) is DENIED.

2. GEICO must answer the Second Amended Complaint no later than April 11, 2025.

3. The parties must file an amended Case Management Report no later than April 18, 2025.

ORDERED in Tampa, Florida, on March 28, 2025.

FOOTNOTES

1.   In the light of the plaintiffs’ response (Doc. 111), I retain subject matter jurisdiction.

2.   GEICO's first motion dismiss was a renewed motion to dismiss originally filed in state court. See (Doc. 8) at 1 n.1; (Doc. 1-2) at 49–61 (motion to dismiss filed in state court).

3.   ERI also alleges that GEICO intentionally interfered with ERI's relationship by offering to dismiss Conifer and Tenet from state court litigation if Conifer and Tenet terminated their relationship with ERI. Second Am. Compl. ¶ 58. Because of Florida's absolute litigation privilege, ERI cannot rely on this alleged communication in stating its tortious interference claim. See infra at 11-16.

4.   Federal district courts in Florida remain deeply divided about the correct application of the single action rule. Some agree with ERI. See, e.g., Block v. Matesic, No. 21-61032-CIV, 2023 WL 3816693, at *6 (S.D. Fla. June 5, 2023); W.P. Prods., Inc. v. Tramontina USA, Inc., No. 18-63162-CIV, 2019 WL 10092981, at *6 (S.D. Fla. July 30, 2019); Synergy Billing, LLC v. Priority Mgmt. Grp., Inc., No. 617CV00929ORL31DCI, 2017 WL 4922203, at *8 (M.D. Fla. Oct. 31, 2017); Fin. Info. Techs., Inc. v. Lopez, No. 8:15-CV-2784-T-30AEP, 2016 WL 688052, at *3 (M.D. Fla. Feb. 19, 2016); World Wide Med. Techs., LLC v. Fla. Pharmacy Ass'n, No. 4:04-CV-118-SPM/AK, 2005 WL 8164942, at *9 (N.D. Fla. Nov. 28, 2005). Others agree with GEICO. See, e.g., Open Sea Distrib. Corp. v. Artemis Distrib., LLC, 692 F. Supp. 3d 1151, 1207 (M.D. Fla. 2023); San Juan Prod., Inc. v. River Pools & Spas, Inc., No. 8:21-CV-2469-TPB-JSS, 2023 WL 1994087, at *8–10 (M.D. Fla. Feb. 14, 2023); Kinsman v. Winston, No. 615CV696ORL22GJK, 2015 WL 12839267, at *5–6 (M.D. Fla. Sept. 15, 2015); Tobinick v. Novella, No. 9:14-CV-80781, 2015 WL 328236, at *11 (S.D. Fla. Jan. 23, 2015); Klayman v. Jud. Watch, Inc., 22 F. Supp. 3d 1240, 1256–57 (S.D. Fla. 2014); Ortega Trujillo v. Banco Cent. Del Ecuador, 17 F. Supp. 2d 1334, 1339–40 (S.D. Fla. 1998).

5.   Absent codification, a federal court's handling of state court precedents turned on whether the question involved “local” or “general” law. See, e.g., Chicago, M. & St. P. Ry. Co. v. Solan, 169 U.S. 133, 136 (1898) (“The question of the right of a railroad corporation to contract for exemption from liability for its own negligence is ․ one of those questions not of merely local law, but of commercial law or general jurisprudence, upon which this court, in the absence of express statute regulating the subject, will exercise its own judgment, uncontrolled by the decisions of the courts of the state in which the cause of action arises.”); Caleb Nelson, A Critical Guide to Erie Railroad Co. v. Tompkins, 54 Wm. & Mary L. Rev. 921, 925–27 (2013).

6.   “Many scholars have argued that Erie misinterpreted the Rules of Decision Act and the jurisprudential assumptions of the regime that preceded it.” Wideman v. Innovative Fibers LLC, 100 F.4th 490, 496 n.6 (4th Cir. 2024) (citing Nelson, A Critical Guide to Erie Railroad Co. v. Tompkins, 54 Wm. & Mary L. Rev. 921; Stephen E. Sachs, Finding Law, 107 Calif. L. Rev. 527 (2019)).

7.   The Eleventh Circuit adopted as binding precedent all decisions rendered by the United States Court of Appeals for the Fifth Circuit prior to September 30, 1981. See Bonner v. City of Pritchard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

8.   A more direct route exists. When “faced with substantial doubt on a dispositive state law issue,” a federal court could certify the question to the relevant state supreme court. NBIS Constr. & Transp. Ins. Servs., Inc. v. Liebherr-Am., Inc., 93 F.4th 1304, 1314 (11th Cir. 2024) (quoting WM Mobile Bay Env't Ctr., Inc. v. City of Mobile Solid Waste Auth., 972 F.3d 1240, 1251 (11th Cir. 2020)). Florida's Constitution, though, permits only the United States Supreme Court and federal circuit courts to certify questions to the Florida Supreme Court. See Fla. Const. art. V, § 3(b)(6). Litigants and courts alike would benefit from amendment to the Florida Constitution to permit federal district courts to certify questions to the Florida Supreme Court, thereby avoiding the circuitous appeal process to resolve unclear (and often repetitive) issues of Florida law. See, e.g., GEICO v. Glassco, Inc., 119 F.4th 911, 912–13 (11th Cir. 2024) (affirming district court after the Florida Supreme Court answered two certified questions regarding the Florida Motor Vehicle Repair Act to the Florida Supreme Court).

9.   Section 770.01 provides that “[b]efore any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory.”

10.   Although the cases speak to a “failed defamation claim,” Callaway, 831 So. 2d at 208, this phrase references instances when the defendant successfully invoked a defense to defamation. I have not located a Florida case dismissing another tort on the basis that the plaintiff failed to plausibly allege defamation. One possible exception is Byrd v. Hustler Magazine, Inc., where the Fourth District Court of Appeal concluded that the defamation claim failed because the publication was “neither false nor defamatory” and that the “invasion of privacy claim” also failed because it “was based on the same factual allegations and legal argument.” 433 So. 2d 593, 595 (Fla. 4th DCA 1983). But Byrd can be read to hold that the invasion of privacy claim failed on the merits, not because of the single action rule. See Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008) (stating that “the elements of these two torts are remarkably similar”).

Kathryn Kimball Mizelle United States District Judge