DelMonico v. Traynor
116 So. 3d 1205
| Fla. | 2013Background
- Florida absolute privilege historically shields statements in judicial proceedings and related formal settings; the issue is whether it covers attorney ex-parte, out-of-court questioning of a potential nonparty witness in a pending suit.
- In Crespo defamation action, Crespo and Donovan defended with Traynor; DelMonico and MYD sued Traynor for defamation and tortious interference arising from ex-parte witness interviews.
- DelMonico and MYD alleged Traynor made false statements to witnesses about DelMonico being prosecuted for prostitution, causing loss of exclusive distributorship and damages.
- The trial court granted summary judgment on absolute privilege grounds; the Fourth District affirmed, adopting broad absolute immunity; a dissent urged only a qualified privilege.
- This Court overruled the Fourth District in part, holding that absolute privilege does not cover ex-parte, out-of-court questioning of nonparty witnesses; a qualified privilege applies if statements relate to the underlying subject of inquiry, with express malice required to overcome it.
- Remand was ordered for further proceedings to assess whether express malice exists and whether statements were connected to the subject of inquiry.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Florida’s absolute privilege covers ex-parte attorney statements to nonparties during investigation | DelMonico argues absolute privilege should not apply to such ex-parte statements. | Traynor/Defendants rely on Levin to extend absolute privilege to statements made during inquiry. | No; absolute privilege does not extend to ex-parte statements; qualified privilege applies if related to the subject of inquiry. |
| If related to the inquiry, whether a qualified privilege requires express malice | DelMonico contends statements related to Crespo action should be protected but not with absolute immunity. | Defendants argue qualified privilege shifts burden to prove malice. | Qualified privilege applies and plaintiff must prove express malice. |
| Whether the Crespo case falls within the scope of the qualified privilege | DelMonico contends Traynor’s statements were connected to Crespo’s defamation claim. | Traynor argues statements were investigation-related and thus privileged. | Statements were related to Crespo's central facts; qualified privilege applies on remand. |
| What is the appropriate scope of Florida’s privilege in this ex-parte context | N/A to plaintiffsargue for broader protection | N/A to defendantsargue for broader protection | The Court adopts a narrow scope: absolute privilege is not extended; qualified privilege governs if connection to inquiry exists. |
Key Cases Cited
- Myers v. Hodges, 53 So. 357 (Fla. 1907) (Fla. 1907) (established broad absolute privilege tied to relation to inquiry; later narrowed)
- Robertson v. Industrial Insurance Co., 75 So.2d 198 (Fla. 1954) (absolute privilege extended to quasi-judicial proceedings)
- Fridovich v. Fridovich, 598 So.2d 65 (Fla. 1992) (narrowed scope; introduced qualified privilege for nonrelated statements)
- Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Co., 639 So.2d 606 (Fla. 1994) (affirmed absolute privilege for acts within course of judicial proceeding; balanced interests)
- Levin, 639 So.2d 606 (Fla. 1994) (standard: act must have some relation to the proceeding; absolute immunity considered)
- DelMonico v. Traynor, 50 So.3d 4 (Fla. 4th DCA 2010) (reversed absolute privilege in ex-parte witness investigations; adopted qualified privilege)
- Levin v. United States Fire Insurance Co., 639 So.2d 606 (Fla. 1994) (see Levin for scope of privilege)
- Hope v. Nat'l Alliance of Postal & Fed. Emps., Jacksonville Local No. 320, 649 So.2d 897 (Fla. 1st DCA 1995) (recognizes discretion in relevancy not strictly limited)