Automotive Alignment & Body Service, Inc. v. State Farm Mutual Automobile Insurance CompanyAutomotive Alignment & Body Service, Inc. v. State Farm Mutual Automobile Insurance Company
- Reporters:
- ,
- Before:
- William Pryor, Martin, Gregory G. Katsas
Although the Mississippi body shops timely amended their complaint, they failed to designate the interlocutory order dismissing their antitrust claims in their notice of appeal. But we conclude that we may review the order because the shops
I. BACKGROUND
These appeals arise from three lawsuits filed in Mississippi, Indiana, and Utаh by body shops that repair vehicles for individuals insured by the major automobile insurance companies. The Judicial Panel on Multidistrict Litigation transferred the actions to the Middle District of Florida for pretrial proceedings. We recently decided en banc five similar appeals arising from the same multidistrict litigation. See Quality Auto Painting Ctr. of Roselle, Inc. v. State Farm Indem. Co., 917 F.3d 1249 (11th Cir. 2019) (en banc).
Here, as in Quality Auto, the body shops allege that the insurance companies have conspired to depress the prices they pay for repairs the body shops perform for their insureds. The leader of this alleged conspiracy is State Farm, which sets a “market rate” for labor in a geographic area using an electronic survey of shops in the area and refuses to pay more for labor than the survey-determined market rate. But the “survey” State Farm conducts is allegedly more sham than survey. State
The body shops also allege that the insurance companies use other unsavory business practices to reduce the prices they pay for repairs. For example, the insurance companies allegedly refuse to pay for necessary repairs and procedures, and they allegedly require the body shops to use subpar “aftermarket” parts instead of new parts. They also allegedly “steer” their insureds away from noncompliant body shops and toward body shops that comply with their pricing demands and other requirements. If an insured plans to use a noncompliant body shop for repairs, the insurance company allegedly will tell its insured that the body shop has had quality issues, charges more than other shops, takes longer than other shops, or performs work that the insurance company cannot guarantee. Some body shops have lost prospective customers because of the insurance companies’ alleged steering. The body shops also allege that the insurance companies collectively agree to steer customers away from nonсompliant body shops.
Based on these allegations, the body shops assert claims of horizontal price-
The district court dismissed the first amended complaints in all three actions for failure to state a claim,
The insurance companies in the Indiana and Utah actions moved to strike the untimely second amended complaints and close the cases. They argued that the first orders of dismissal became final judgments when the time to amend expired without the body shops either filing an amended complaint or moving for an extension of time. Relying on our decision in Hertz Corporation v. Alamo Rent-A-Car, Incorporated, 16 F.3d 1126 (11th Cir. 1994), the insurance companies argued
The Indiana and Utah body shops opposed the motions to strike and argued that they failed to timely amend their complaints because of excusable neglect. The Indiana body shops explained that they experienced problems with the electronic filing system, which caused them to miss the deadline to amend by several hours. And the Utah body shops explained that they missed the deadline to amend by two days because they miscalculated the time to amend under the Federal Rules of Civil Procedure.
The district court denied the insurance companies’ motions to strike. It construed the body shops’ briefs opposing the motions to strike as motions for an after-the-fact extension of time to amend their complaints, which it granted. See
The insurance companies moved to dismiss the second amended complaints in all three actions for failure tо state a claim,
The body shops appealed. In their notices of appeal, the Mississippi and Indiana body shops designated only the order denying their motion for reconsideration and the final order dismissing their claims under state law. They did not designate the interlocutory order dismissing their antitrust claims. The Utah body shops designated all three of these orders in their notice of appeal.
II. STANDARDS OF REVIEW
We review jurisdictional questions аnd the dismissal of a complaint de novo. Ehlen Floor Covering, Inc. v. Lamb, 660 F.3d 1283, 1287 (11th Cir. 2011); Bourtzakis v. U.S. Att‘y Gen., 940 F.3d 616, 619 (11th Cir. 2019). We review the denial of a motion for reconsideration,
III. DISCUSSION
We divide our discussion in five parts. First, we explain that we lack jurisdiction to decide the merits of the Indiana and Utah appeals. Second, we
A. We Lack Jurisdiction to Decide the Merits of the Indiana and Utah Appeals.
We directed the parties in the Indiana and Utah appeals to address whether the body shops’ failure to timely amend their complaints deprives us of jurisdiction to decide the merits of those appeals under Hertz Corporation v. Alamo Rent-A-Car, Incorporated, 16 F.3d 1126 (11th Cir. 1994). The insurance companies argue that we lack jurisdiction because the orders dismissing the first amended complaints became final judgments under Hertz when the deadline to amend expired. The body shops respond that any error in adjudicating the untimely complaints was harmless,
In Hertz, we considered the effect of a plaintiff‘s failure to timely amend its complaint after the district court dismissed the complaint with leave to amend within a specified time. 16 F.3d at 1127–28. After the deadline to amend expired,
Hertz establishes that an order dismissing a complaint with leave to amend within a specified time becomes a final judgment if the time allowed for amendment expires without the plaintiff seeking an extension. Id. at 1132–33. And when the order becomes a final judgment, the district court loses “all its prejudgment powers to grant any more extensions” of time to amend the complaint. Id. at 1133. The only recourse for a plaintiff who seeks to set aside the
The orders dismissing the first amended complaints in the Indiana and Utah actions became final judgments under Hertz when the body shops missed their deadline to amend. The district court dismissed the body shops’ first amended complaints with leave to amend within a specified time, and the Indiana and Utah body shops missed the deadline to amend without ever seeking an extension of time. So the orders of dismissal became final judgments when the deadline to amend expired. See Hertz, 16 F.3d at 1132–33. The body shops never appealed those final judgments, so we lack appellate jurisdiction to review them. See
Instead of recognizing that its first orders of dismissal became final judgments when the deadlines to amend expired, the district court relied on
The district court erred.
The general/specific canon makes clear that a district court may not use
And to be clear, circumvention of the time limits in
We directed the parties in the Indiana and Utah appeals to file supplemental briefs about whether we should construe the grant of relief under
B. We Have Jurisdiction to Review the Dismissal of the Mississippi Bоdy Shops’ Antitrust Claims.
Because the content requirements of
We first acknowledge that recent decisions of the Supreme Court call into question its earlier decisions, see Smith, 502 U.S. at 248; Torres, 487 U.S. at 317, that the content requirements for notices of appeal are jurisdictional. In recent years, the Supreme Court has been careful to distinguish between jurisdictional rules, whiсh define the cases or persons within a court‘s adjudicatory authority, and mandatory claim-processing rules, which govern the orderly process of litigation. See, e.g., Fort Bend Cty. v. Davis, 139 S. Ct. 1843, 1848–49 (2019). The Court has held that time limits to file an appeal are jurisdictional if they appear in a statute, Bowles v. Russell, 551 U.S. 205, 206–07 (2007), but not if they appear in a court-made rule, Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 16–17 (2017). It has also held that other time limits in court-made procedural rules are nonjurisdictional claim-processing rules. See Eberhart v. United States, 546 U.S. 12, 15–16 (2005) (time limit to move for a new trial in
These recent decisions rest on the principle that “[o]nly Congress may
Although Supreme Court precedent requires us to treat the content requirements of
To determine whether the Mississippi body shops complied with the requirement that a notice of appeal “designate the judgment, order, or part thereof being appealed,”
The later precedents—Seminole Tribe, White, Moton, and Whetstone Candy—did not mention our earlier precedent Barfield, which reviewed an undesignated interlocutory order because the notice of appeal designated the final judgment. Instead, the later precedents cited two other decisions decided before Barfield. The pre-Barfield decisions held that we lacked jurisdiction to review one part of an order designated in the notice of appeal because the notice specifically identified one or more other parts of the same order as the subject of the appeal. See Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1374 (11th Cir. 1983) (“[T]he notice specifically stated that the appeal was only ‘from those portions’ of the order that dealt with issues raised in the summary judgment motions.“); C. A. May
When faced with an intracircuit conflict, we must follow our earliest precedent, CSX Transp., Inc. v. Gen. Mills, Inc., 846 F.3d 1333, 1338 (11th Cir. 2017), which means we must follow Barfield instead of Seminole Tribe, White, Moton, and Whetstone Candy, see id. at 1340. The pre-Barfield decisions that our later precedents cited—Pitney Bowes and C. A. May Marine Supply—provided no basis to depart from the holding of Barfield that designation of the final, appealable order allows us to review any earlier interlocutory orders that produced the judgment. Barfield is consistent with the holdings of Pitney Bowes and C. A. May Marine Supply, which control when a notice of appeal designates a specific part of an order for appeal and leaves undesignated other parts of the same order. See
Following our earlier precedent, we hold that when a notice of appeal designates the final, appealable order—and does not identify specific parts of that order for aрpeal—we have jurisdiction to review that order and any earlier interlocutory orders that produced the judgment. In their notice of appeal, the Mississippi body shops designated the final, appealable order that dismissed their remaining claims under state law. The order was “final,”
Except for Seminole Tribe, White, Moton, and Whetstone Candy, this rule accords with our precedent. We have often reviewed undesignated interlocutory orders where the notice of appeal designated the final judgment, although we have sometimes engaged in unnecessary inquiries about the appellant‘s intent or prejudice to the appellee. See Davila v. Gladden, 777 F.3d 1198, 1203, 1208 n.5 (11th Cir. 2015); Kong, 750 F.3d at 1301; KH Outdoor, LLC v. City of Trussville, 465 F.3d 1256, 1258–60 (11th Cir. 2006); Toomey, 450 F.3d at 1228 n.2; Club Car, 362 F.3d at 785 & n.5; Barfield, 883 F.2d at 930; Comfort Trane Air Conditioning Co. v. Trane Co., 592 F.2d 1373, 1376, 1390 & n.15 (5th Cir. 1979). And this rule continues to acknowledge that a notice of appeal that identifies a specific part of a designated order for appeal does not confer jurisdiction to review unmentioned parts of the order. See Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1290 n.12 (11th Cir. 2002); Pitney Bowes, 701 F.2d at 1374; C. A. May Marine Supply, 649 F.2d at 1056.
Although we stated in a pre-Barfield decision that “we will not expand [a notice of appeal] to include . . . orders not specified unless the overriding intent to appeal these orders is readily apparent on the face of the notice,” Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1528–29 (11th Cir. 1987), that statement is dicta and does not bind us. The issue in Osterneck was the effect of naming some but not all of the appellees in a notice of appeal, not the effect of failing to designate an interlocutory order. Id. at 1528–29. Our statement about undesignated orders in Osterneck was not necessary to the decision we reached, so it is not part of our holding. See Fresh Results, LLC v. ASF Holland, B.V., 921 F.3d 1043, 1049 (11th Cir. 2019) (“[R]egardless of what a court says in its opinion, the decision can hold nothing beyond the facts of that case.” (internal quotation marks omitted)). We are bound by the holding of Barfield that designation of the final judgment allows us to review “all prior non-final orders and rulings which produced the judgment.” 883 F.2d at 930.
C. The District Court Correctly Dismissed the Mississippi Body Shops’ Antitrust Claims.
The Mississippi body shops assert two antitrust claims against the insurance companies. They allege that the insurance companies engaged in a horizontal price-fixing conspiracy and a group boycott in violation of the Sherman Act,
We recently decided en banc several appeals by other body shops that raised similar claims of horizontal price-fixing and group boycott. See Quality Auto, 917 F.3d at 1262–72. Here, as in Quality Auto, the body shops allege that the insurance companies conspired to fix the prices they will pay for repairs the shops perform
To state a claim of horizontal price-fixing or group boycott, the body shops must allege, among other elements, facts that plausibly suggest “an agreement or conspiracy among the Insurance Comрanies.” Id. at 1262; see also id. at 1260. Under this standard, “the crucial question is whether the challenged anticompetitive conduct stems from independent decision or from an agreement, tacit or express.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 553 (2007) (alterations adopted) (internal quotation marks omitted). Allegations of parallel conduct, even conscious parallelism, are insufficient standing alone to raise an inference of conspiracy. Quality Auto, 917 F.3d at 1261–62. Where a conspiracy claim rests on allegations of parallel conduct, a plaintiff must allege sufficient “plus factors” to make the parallel conduct “more probative of conspiracy than of conscious
We begin with the body shops’ allegations of price-fixing. In their brief, the Mississippi body shops identify three allegations from their complaint relevant to their price-fixing claim that materially differ from the allegations in Quality Auto. We review each of the allegations and conclude that none of them plausibly suggests a prior agreement to fix prices.
First, the body shops allege that “in Oklahoma, Chad Turner of USAA told Blevins Paint and Body that labor rates would be going up shortly because the new State Farm survey results had just been sent out and it would take USAA a couple of weeks to put them in motion.” To begin, this allegation is irrelevant to the Mississippi body shops’ claims because it pertains to the actions of insurance companies in Oklahoma. The Mississippi complaint contains no allegation that State Farm shares its “market rate” surveys for Mississippi with other insurance companies. Instead, the complaint alleges only that the other insurance companies tell the body shops that “they will pay no more than State Farm pays for labor.” And we have already held that this allegation of “price leadership“—“[f]ollowing the example set by a competitor, without agreeing to do so in advance“—“is insufficient to establish the existence of an agreement.” Id. at 1264 (internal quotation marks omitted).
Even if this allegation were relevant to the Mississippi action, it does not
Second, the body shops allege that when State Farm alters its “market rate” for labor, the other insurance companies match State Farm‘s new rate within a period of weeks. But this allegation again suggests only price leadership, not a prior agreement to fix prices. See id. at 1264. Although the body shops allege that State Farm does not publicly disclose its market rate, we explained in Quality Auto that failing to publicly disclose the market rate and keeping the market rate secret, which could make uniform pricing suggestive of a conspiracy, “are two very different things.” Id. “[T]hat State Farm does not issue a press release with the market rate does not foreclose the possibility that it is publicly known.” Id. And as in Quality Auto, the Mississippi complaint makes clear “that State Farm must necessarily tell the rate to every repair shop in a given geographic area” when it reimburses the shops at that rate. Id.
These allegations of uniform tactics do not plausibly suggest a conspiracy because there is no reason to believe these practices are “somehow idiosyncratic and not to be expected as within the ‘wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market.‘” Id. at 1266 (quoting Twombly, 550 U.S. at 554). The use of common tactics by competitors suggests a conspiracy “only if such usage would not plausibly arise from ‘independent responses to common stimuli.‘” Id. at 1267 (quoting Twombly, 550 U.S. at 556 n.4). Here, as in Quality Auto, it is just as plausible that the insurance companies independently use these similar tactics to avoid paying higher prices for repairs as it is that the insurance companies’ tactics are the result of a prior agreement. See id. The body shops’ allеgations of uniform tactics do not raise a plausible inference of conspiracy.
The body shops first allege that the insurance companies use uniform tactics to steer their insureds away from body shops that refuse to pay State Farm‘s labor rates. In Quality Auto, the body shops argued that the insurance companies steered their insureds away from noncompliant shops using “the same script containing identical false and misleading steering statements,” which could have plausibly suggested a prior agreement to steer. Id. at 1271 (internal quotation marks omitted). But we explained that the complaints did not contain any such allegation: “both the word ‘script’ and the word ‘identical’ [were] conspicuously absent from
These allegations of uniform steering tactics do not plausibly suggest a conspiracy. As we explained in Quality Auto, the steering tactics the body shops allege “could hardly be . . . more expected or more commonly used” methods to discourage insureds frоm patronizing a disfavored shop. Id. at 1272. They “are not so idiosyncratic that they suggest conspiracy.” Id. Telling an insured that a shop is not a preferred provider, does poor work, charges more, or takes longer than other shops “are methods that would logically be employed by any insurer to dissuade its insureds from using a disfavored shop.” Id. These allegations of uniform conduct “fall well within the ‘wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market.‘” Id. (quoting Twombly, 550 U.S. at 554).
In addition to uniform steering tactics, three of the Mississippi body shops
The body shops attribute this loss in business to a concerted effort among the insurance companies to steer customers away from their shops as punishment for leaving the direct repair programs. But unlike in other parts of their complaint, the shops allege no specific instances of steering by other insurance companies after leaving a different insurer‘s program. They instead ask us to infer concerted steering from the loss in business.
These allegations of lost business do not plausibly suggest that the insurance companies engaged in steering, let alone concerted steering. The body shops offer no allegations that explain why the loss in business they allege is plausibly explained by steering instead of other “obvious alternative explanation[s].”
Instead of steering, the loss in business could just as plausibly be explained by any number of legitimate market forces. Those forces include competition from other shops, decreased demand for vehicle repairs in the relevant time period, a greater demand for repairs in the preceding year, or fluctuations in consumer choice about where to have vehicles repaired. The wildly varying amounts of lost business—from 10 percent to 75 percent depending on the insurer and the shop—undermines concerted steering as a plausible explanation. And most importantly, the complaint provides no reason to believe that the amount of revenue each shop receives from each insurance company remains roughly constant from year to year under normal circumstances. In a market for car repairs, which depends on unpredictable events like car crashes, it would be unsurprising if considerable fluctuations in business were the norm. Absent any allegations about the usual volume of business these three shops receive from each insurer, we cannot infer that steering, as opposed to fluctuations in demand and consumer choice, plausibly caused the drop in business.
Another problem with these allegations is that the complaint provides no
Without more information to place these threadbare allegations of lost business in context, we would have to engage in impermissible speculation to conclude that concerted steering plausibly caused the decrease in business. See id.
D. The District Court Did Not Abuse Its Discretion When It Denied the Mississippi Body Shops’ Motion for Reconsideration.
The Mississippi body shops argue the district court abused its discretion when it denied their motion to reconsider its dismissal of their antitrust claims based on newly discovered evidence. The district court denied the motion because the body shops failed to establish that this new evidence was previously unavailable. We agree with the insurance сompanies that the district court did not abuse its discretion.
The body shops based their motion to reconsider on newly discovered “direct evidence of price fixing.” The body shops explained that, sometime after filing their second amended complaint, they “obtained a statement from a Progressive employee who stated unequivocally that body shops have no say in the setting of their own labor rates, that the insurance companies ‘get together at big meetings’ to set body shop labor rates, and that the insurance companies uniformly apply the labor rates agreed upon at these meetings.” The body shops also alleged that they “obtained a statement from a State Farm representative who stated State Farm intentionally suppresses and fixes body shop labor rates, and that State
The district court construed the “motion to reconsider” as a motion to alter or amend the judgment,
The district court did not abuse its discretion when it denied the motion to reconsider. See M.G. v. St. Lucie Cty. Sch. Bd., 741 F.3d 1260, 1262 (11th Cir. 2014) (“Where a party attempts to introduce previously unsubmitted evidence on a motion to reconsider, the court should not grant the motion absent some showing that the evidence was not available during the pendency of the case.” (alterations adopted) (quoting Mays, 122 F.3d at 46)). Indeed, the Mississippi body shops do
E. The District Court Correctly Dismissed Most of the Mississippi Body Shops’ Claims Under State Law.
The Mississippi body shops bring several claims under state law against the insurance companies. They assert claims of quantum meruit and tortious interference with business relationships, and they allege that the insurance companies violated a state statute,
The claims of quantum meruit fail for the same reason those claims failed in Quality Auto: the body shops fail to allege an essential element of that claim. 917 F.3d at 1273. To state a claim for quantum meruit, the body shops must allege, among other elements, that they rendered services in circumstances that would reasonably notify the insurance companies that they expected payment for the services. See In re Estate of Fitzner, 881 So. 2d 164, 173–74 (Miss. 2003). The body shops do not allege that the insurance companies never paid for their services; instead, they base their claims of quantum meruit on the insurance companies’ failure to pay enough for their services. But the body shops’ own
The body shops’ statutory claims,
No insurer may require as a condition of payment of a claim that repairs to a damaged vehicle . . . must be made by a particular contractor or motor vehicle repair shop; provided, however, the most an insurer shall be required to pay for the repair of the vehicle . . . is the lowest amount that such vehicle . . . could be properly and fairly repaired or replaced by a contractor or repair shop within a reasonable geographical or trade area of the insured.
The statute imposes no duty on insurers to pay a certain amount for repairs. Instead, the statute imposes two other requirements: it forbids insurers to “condition . . . payment of a claim” on repairs being performed at a particular body shop,
Most of the claims of tortious interferencе fail for one of three reasons. First, the group allegations of tortious interference fail to give the individual insurance companies fair notice of the claims against them, so they violate the shotgun-pleading doctrine. Second, many of the body shops fail to allege that the insurance companies’ actions damaged their businesses. And third, some of the body shops fail to allege that the insurance companies acted with malice. But two of the body shops have adequately alleged a claim of tortious interference against the
We first address the body shops’ group allegations of tortious interference. The body shops allege that the insurance companies interfered with their businesses by wrongfully “steering” prospective customers away from noncompliant body shops to competitors that complied with their pricing demands and other requirements. Some portions of the complaint detail the specific instances of steering about which the body shops complain. But the complaint also alleges, more generally, that “[t]he Defendants” have wrongfully steered customers away from “the Plaintiffs” through “their repeated campaign of misrepresentation of facts.” The insurance companies argue that these group allegations cannot state a claim for relief because they fail to give them fair notice of the body shops’ claims and the facts on which they are based. We agree.
A complaint constitutes an impermissible shotgun pleading if it “assert[s] multiple claims against multiple defendants without specifying which of the defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against.” Weiland v. Palm Beach Cty. Sheriff‘s Office, 792 F.3d 1313, 1323 (11th Cir. 2015). The problem with this kind of pleading is that it fails “to give the defendants adequate notice of the claims against them and the grounds upon which each claim rests.” Id. Pleadings of this nature violate the requirement that a plaintiff provide “a short and plain statement of the claim,”
The group allegations of tortious interference constitute shotgun pleading because they fail to give any defendant fair notice of the allegations against it. The Mississippi complaint names 28 body shops from across the state as plaintiffs. And counting the named insurance companies in the same corporate family as a single defendant, the complaint names 11 defendants. The allegation that “[t]he Defendants” steered customers away from “the Plaintiffs” makes it impossible for any individual insurance company to determine which of the 28 body shops it is alleged to have harmed through tortious interference. This allegation, standing alone, fails to give the insurance companies “adequate notice” of the grounds upon which the various body shops’ claims of tortious interference rest. Weiland, 792 F.3d at 1323; see also Magluta, 256 F.3d at 1284 (condemning as a shotgun
Our decision in Quality Auto, which held that similar allegations of tortious interference did not constitute shotgun pleading, is not to the contrary. 917 F.3d at 1274–76. Four of the complaints in Quality Auto named “only one plaintiff,” and the fifth complaint named only “four body shops located in close proximity to each other” as plaintiffs. Id. at 1275. We explained that it was “absolutely clear” from the complaints that the victims of the tortious interference were the lone body shop in the first four complaints and each of the four body shops named in the fifth complaint, and that each defendant was alleged to have interfered with each plaintiff. Id. But here, it is unclear that each of the named insurance companies is alleged to have successfully steered customers away from each of 28 Mississippi
The failure to specify which particular defendants certain allegations relate to is not fatal when “[t]he complaint can be fairly read to aver that all defendants are responsible for the alleged conduct,” Kyle K. v. Chapman, 208 F.3d 940, 944 (11th Cir. 2000), but we cannot fairly read the body shops’ complaint in that manner. The specific instances of steering that the body shops describe in their complaint provide reason to doubt that each of the insurance companies has harmed each of the body shops through steering. As discussed below, these allegations make clear that many of the alleged steering attempts were unsuccessful, which prevents those body shops from establishing the element of damages. We cannot fairly read the complaint to allege that each of the insurance companies damaged each of the body shops by successfully diverting prospective customers to other shops. For that reason, the group allegations fail to state a claim for tortious interference.
Apart from the group allegations, the Mississippi complaint alleges 15 instances of steering by particular insurance companies against individual body shops. To state claims of tortious interference, these body shops must allege that the insurance companies (1) intentionally and willfully acted (2) to harm the body shops’ businesses, (3) “with the unlawful purpose of causing damage and loss, without right or justifiable cause on the part of the [insurance companies] (which
Ten of the alleged instances of steering fail to state a claim because the insurance companies did not damage the body shops. As the body shops admit, many of the “[e]xamples of steering” in their complaint are examples of “failed” steering—instances in which the insurance company was unsuccessful in its attempt to influence its insured to use a different body shop. Of the 15 instances of steering, the body shops allege only five in which the steering actually caused the customer to choose a different shop. Because they failed to allege actual damage, Biglane, 949 So. 2d at 16, the other 10 allegations of unsuccessful steering attempts cannot state a claim for tоrtious interference.
Of the five successful instances of steering, three fail to state a claim because the body shops do not allege that the insurance companies acted with malice. Proof of malice requires evidence that the defendant acted “with a malicious intent to interfere and injure the business of another,” Cenac v. Murry, 609 So. 2d 1257, 1271 (Miss. 1992), and “without right or justifiable cause,” Biglane, 949 So. 2d at 16. These two aspects of malice are distinct; a party can act
Alexander Body Shop alleges that it lost two prospective customers because State Farm required those customers to take their vehicles to one of State Farm‘s approved shops for an estimate before taking the vehicles to their shop of choice for repairs. The two customers eventually let the approved shops repair their vehicles to avoid the inconvenience of moving their vehicles to Alexander after the estimatе. These allegations do not establish that State Farm acted without right or justifiable cause. Although the body shops aver that State Farm‘s “insistence” that the customers use its approved shops for estimates is “illegal,” they cite no authority to support their assertion. Mississippi law forbids insurers to condition payment of a claim upon “repairs to a damaged vehicle . . . be[ing] made by a particular . . . shop,” but it does not forbid them to require customers to use their approved shops to obtain estimates.
Finally, two Mississippi body shops have adequately alleged claims of tortious interference against the Progressive defendants based on two successful instances of steering. AutoWorks Collision Specialist and Walkers Collision Center allege that they each lost one customer because Progressive misleadingly told the customers that it would guarantee the repair work if they used
IV. CONCLUSION
We VACATE the orders dismissing the second amended complaints and denying the body shops’ motions to reconsider in the Indiana and Utah actions. We AFFIRM the dismissal of the Mississippi body shops’ antitrust claims and the denial of their motion for reconsideration. We also AFFIRM the dismissal of their claims under state law, except for the two claims of tortious interference by