462 So. 2d 567 | Fla. Dist. Ct. App. | 1985
Benny MALVER, Appellant,
v.
SHEFFIELD INDUSTRIES, INC., Appellee.
District Court of Appeal of Florida, Third District.
*568 Edward J. Schack, Oakland Park, for appellant.
Arnold Nevins, Miami Beach, for appellee.
Before SCHWARTZ, C.J., and HUBBART and NESBITT, JJ.
NESBITT, Judge.
Malver, having elected to stand on his second amended complaint, appeals its ultimate dismissal. We affirm the dismissal, but remand with directions to allow an amendment of Count I of the complaint.
In Count I, a breach of contract count, Malver sought recovery of medical insurance and disability payments which were lost when his employment was terminated by Sheffield Industries, Inc. (Sheffield). Because the contract of employment was of indefinite duration, it was terminable at will. Smith v. Piezo Technology & Professional Administrators, 427 So.2d 182 (Fla. 1983). However, Sheffield, the employer, was required under the law to give Malver reasonable notice of termination. Perri v. Byrd, 436 So.2d 359 (Fla. 1st DCA 1983). If Malver pleads and proves that there was no reasonable notice given, he can recover those damages which were caused by the failure to give such notice. Byrd. Since it appears from the complaint that such an allegation can be made, Malver should be permitted to amend Count I.
In Count II, Malver attempted to allege a tortious interference with a contract or expectancy. The gist of the count appears to be that Sheffield's termination of Malver's employment tortiously interfered with his expected insurance benefits. Since the expectancy which was allegedly interfered with flowed directly from Sheffield's employment relationship with Malver, it is not possible for the plaintiff to state a cause of action for interference. A.R.E.E.A., Inc. v. Goldstein, 411 So.2d 310 (Fla. 3d DCA 1982); Ethyl Corp. v. Balter, 386 So.2d 1220, 1223-24 (Fla. 3d DCA 1980).
Accordingly, the order dismissing the complaint is affirmed with directions that the plaintiff be allowed to amend Count I. Affirmed with directions.
