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Under Florida Law, “tortious interference with a contract and tortious interference with a business relationship are basically the same cause of action. The only material difference appears to be that in one there is a contract and in the other there is only a business relationship.” Smith v. Ocean State Bank, 335 So. 2d 641, 642 (Fla. 1st DCA 1976) (quoted in St. Johns River Water Mgmt. Dist. v. Fernberg Geological Services, Inc., 784 So. 2d 500, 504 n. 4 (Fla. 5th DCA 2001)). Under both torts, plaintiff must prove, among other things, that defendant’s interference with plaintiff’s contract or business relationship was without justification. See Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126, 1127 (Fla. 1985); Crawley-Kitzman v. Hernandez, 324 So. 3d 968, 976 (Fla. 3d DCA 2021). Thirty years ago, a Florida court specifically recognized that “[j]ustification is a confusing element, and probably a poorly developed aspect, of this tort.” GNB, Inc. v. United Danco Batteries, 627 So. 2d 492, 494 (Fla. 2d DCA 1993) (Altenbernd, J. dissenting).

The GNB court identified three sources of confusion. First, case law “has not clearly determined the line between plaintiff’s burden to plead and prove improper [i.e., unjustified] conduct by the defendant, and the defendant’s right to plead and prove a qualified privilege of justification as an affirmative defense.” Id. Second, both the motive for interfering and the method of interference must be examined to determine whether the interference was justified. Id. Third, the specific conduct that constitutes an improper method of interference includes “other ill-defined ‘bad’ acts.” Id.¹

Unfortunately, it appears that much of this confusion remains today.

Tortious Interference and Justification: Examining Florida’s standard jury instructions

An examination of Florida’s standard jury instructions leads to the following observations:

  • Irrespective of whether an enforceable contract that is not terminable at will exists between the plaintiff and a third-party, the plaintiff bears the burden of proving that the defendant acted “unjustifiably.” Fla. Std. Jury Instr. (Civ.) 408.5 (Interference with Contract Not Terminable at Will); Fla. Std. Jury Instr. (Civ.) 408.6 (Interference with Business Relations or with Contract Terminable at Will). Plaintiff can meet this burden by proving that the defendant had an improper motive or used an improper method.
  • To prove defendant had an improper motive, the plaintiff must show that defendant’s conduct “was directed solely to harm” the plaintiff. Fla. Std. Jury Instr. (Civ.) 408.9 (emphasis added). If defendant’s sole motive was to harm the plaintiff, it is of no consequence that the defendant’s economic interests were incidentally furthered; the conduct still was not justified. Id.
  • To prove defendant employed an improper method, the plaintiff must show that the defendant violated a statute, committed a tort or committed “other improper acts”. Fla. Std. Jury Instr. (Civ.) 408.5; Fla. Std. Jury Instr. (Civ.) 408.6. Both jury instructions provide that a person who interferes with another’s contractual or business relationship “using ordinary business methods of competition does not interfere improperly.” Id. And both instructions further provide that “one who uses physical violence, misrepresentations, illegal conduct, threats of illegal conduct or [(identify other improper conduct)] has no privilege to use those methods, and interference using such methods is improper.” Id. It remains unclear what type or degree of conduct other than that specifically described in the jury instructions constitutes “other improper acts” or “other improper conduct”. Perhaps some type of business method that is extra-ordinary (i.e., out of the ordinary) but does not violate a statute or rise to the level of a tort is what is contemplated here? Conduct that is not a business method which is outlandish but not illegal?
  • When the claim entails a business relationship or a contract that is terminable at will, the defendant may invoke the affirmative defense of Lawful Competition. See Fla. Std. Jury Instr. (Civ.) 408.7, cmt. 1 (“This instruction may be given when the alleged interference is directed at a contract terminable at will or a business relation.”) To establish this affirmative defense, the defendant must prove four distinct elements: (a) the relation concerns a matter involved in the competition between the defendant and the claimant; (b) the defendant does not employ an improper or wrongful means; (c) the defendant’s action does not create or continue an unlawful restraint of trade; and (d) the defendant’s purpose is at least in part to advance the defendant’s interest in competing with the claimant. Fla. Std. Jury Instr. (Civ.) 408.7, cmt. 2. Element (b) is confusing. In the vast majority of cases, one can expect that the plaintiff and the defendant are competitors and, therefore, the defendant’s motivation is not solely to harm the plaintiff. In these cases, the plaintiff bears the burden of proving that the defendant employed an improper method. However, a defendant who raises this affirmative defense is charged with proving that it did not employ an improper or wrongful method (means). When the jury is grappling with the evidence regarding the method(s) employed by the defendant to interfere, which party actually bears the burden of proof here?

Thirty years have passed since the GNB court lamented the fact that the concept of justification in tortious interference claims was confusing and poorly developed in the law. Unfortunately, it seems that little has been cleared up in the past thirty years.

What do you say Florida practitioners? Please email me with any insights or experience in addressing these issues at cdodd@hickeysmith.com.

Christian Dodd is a civil litigation attorney whose practice is focused on complex commercial and business litigation, business and consumer torts, intellectual property matters, and electronic discovery and information governance issues. He is the Legal Operations Partner for Hickey Smith Dodd LLP, a process and data-driven law firm that is designed to deliver legal services with more value.

¹ The majority opinion in GNB agreed with the dissent’s explanation of justification while disagreeing with the dissent’s view of the evidence.

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