[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11739 ELEVENTH CIRCUIT
Non-Argument Calendar APR 7, 2011
JOHN LEY
________________________ CLERK
D.C. Docket No. 8:09-cv-00456-SDM-MAP
GUNDER'S AUTO CENTER,
Plaintiff - Appellant,
versus
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 7, 2011)
Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Gunder’s Auto Center (“Gunder’s”) appeals the district
court order granting summary judgment in favor of Defendant-Appellee State
Farm Mutual Automobile Insurance Co. (“State Farm”) on Plaintiff’s claim of
slander. Plaintiff also appeals the district court’s Rule 12(b)(6) order dismissing
Plaintiff’s tortious-interference-with-a-business-relationship claim. No reversible
error has been shown; we affirm.
Gunder’s is an automobile repair shop in Polk County, Florida. For many
years, Gunder’s was a member of State Farm’s “preferred program.” Repair shops
participating in State Farm’s “preferred program” agree to perform repairs at the
cost to which State Farm has agreed to reimburse its insureds: the “prevailing
competitive rate” as determined by State Farm. So, a State Farm insured who
selects a “preferred program” shop is assured that the shop will not charge the
customer more than State Farm is willing to pay.
Gunder’s was terminated from the “preferred program” in 2004. Gunder’s
alleges its termination resulted from its communications with other “preferred
program” repair shops about State Farm’s refusal to pay for certain repair
procedures. Gunder’s also alleges that, after its termination, State Farm began
“steering” Gunder’s current and potential customers to other shops; that State
Farm “intentionally and unjustifiably” interfered with Gunder’s relationship with
it customers and prospective customers by telling its insureds that Gunder’s
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overcharged customers; and that Gunder’s repairs were untimely, inefficient and
sub-standard.
We review a grant of summary judgment by a district court de novo
applying the same legal standards that bound the district court and viewing all
facts and reasonable inferences in the light most favorable to the non-movant.
Owner-Operator Independent Drivers Ass'n, Inc. v. Landstar System, Inc. 622 F.3d
1307, 1316 (11th Cir. 2010). Our review of a grant of a motion to dismiss also is
de novo; we accept the factual allegations of the complaint as true and construe
them in favor of the plaintiff. Brotherhood of Locomotive Engineers v. CSX
Transp., Inc. 522 F.3d 1190, 1193-1194 (11th Cir. 2008). “Factual allegations
must be enough to raise a right to relief above the speculative level ... on the
assumption that all the allegations in the complaint are true (even if doubtful in
fact).” Bell Atlantic Corp. v Twombly, 127 S.Ct. 1955, 1965 (2007) (internal
citations omitted). And pleadings offering only labels and legal conclusions
couched as factual allegations enjoy no presumption of truth and offer no support
to the sufficiency of the complaint. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-
50 (2009).
To recover for slander in Florida, the claimant must show (1) publication of
a false statement; (2) about the plaintiff; (3) to a third party; and (4) damage
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resulting to plaintiff from the publication. Furmanite America, Inc. v. T.D.
Williamson, Inc., 506 F.Supp. 2d 1134, 1140 (M.D. Fla. 2007).
To state a claim for tortious interference in Florida, the claimant must show
(1) the existence of a business relationship; (2) knowledge of the relationship on
the part of the defendant; (3) an intentional and unjustified interference by the
defendant; and (4) damage from the breach of the relationship. Gossard v. Adia
Servs., Inc., 723 So.2d 182, 184 (Fla. 1998).
The Slander Claim.
Although denied by State Farm, we assume the statements allegedly made
by State Farm disparaging Gunter’s were made and are untrue. Nonetheless, we
agree with the district court that State Farm’s statements were privileged:
A communication made in good faith on any subject
matter by one having an interest therein, or in reference
to which he has a duty, is privileged if made to a person
having a corresponding interest or duty, even though it
contains matter which would otherwise be actionable.
Nodar v. Galbreath, 462 So.2d 803, 809 (Fla. 1984) (quoting 19 Fla. Jur. 2d
Defamation and Privacy § 58 (1980)). Because all statements were made to State
Farm insureds in the context of a claim under a State Farm insurance policy, and
because all statements concerned a matter of mutual interest to the insureds and
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State Farm -- the quality, timeliness and costs of vehicles repairs -- the statements
were privileged.
The privilege raises a presumption of good faith on the part of the speaker,
but the privilege is not absolute. The privilege is forfeited if the statements are
made with express malice:
[w]here a person speaks upon a privileged occasion, but
the speaker is motivated more by a desire to harm the
person defamed than by a purpose to protect the personal
or social interest giving rise to the privilege, then it can
be said that there was express malice and the privilege is
destroyed.
Id. at 811. As long as the communication is motivated by a desire to protect the
interest giving rise to the privilege, the privilege is not forfeited merely because
hostility or ill will also are felt by the speaker. Id. at 812. And “[w]hile malice
may be inferred from the communication, it is not inferable from the mere fact that
the statements are untrue.” Id. at 810, quoting Coogler v. Rhodes, 21 So. 109, 112
(Fla. 1897). To overcome the privilege and recover for slander, a plaintiff bears
the burden of showing express malice. Id.
Gunder’s failed to proffer sufficient evidence of express malice to raise a
material issue of fact for a jury. The statements of which Gunter’s complains --
even assuming their falsity -- supports no inference of malice, and Gunter’s failed
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to proffer extrinsic evidence of express malice. Summary judgment was due on
Gunder’s slander claim.
The Tortious-Interference Claim.
Gunder’s makes no allegation that State Farm interfered with customers or
prospective customers of Gunder’s who were not State Farm insureds. As a matter
of law, “[t]here can be no claim [for tortious interference with a business
relationship] where the action complained of is undertaken to safeguard or
promote one’s financial or economic interest.” Barco Holdings, LLC v Terminal
Inv. Corp., 967 So.2d 281, 293 (Fla. Dist. Ct. App. 2007) (second alteration in
original), quoting Genet Co. v. Annheuser-Busch, Inc., 498 So.2d 683, 684 (Fla.
Dist. Ct. App. 1986).
Because State Farm is obligated to indemnify its insureds for repair work
done on its insureds’ cars, State Farm is no stranger to the business relationship
between Gunder’s and customers who are insured by State Farm. See id.; see also
Palm Beach County Health Care Dist. v. Prof. Medical Educ., Inc., 13 So.3d 1090,
1094 (Fla. Dist. Ct. App. 2009) (“[u]nder Florida law, a defendant is not a stranger
to a business relationship, and thus cannot be held liable for tortious interference,
when it has a supervisory interest in how the relationship is conducted or a
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potential financial interest in how a contract is performed.”). Allegations set out
in the complaint show that State Farm had a protectible interest in the relationship
between Gunder’s and State Farm insureds. In the light of that protectible interest,
the First Amended Complaint failed to state a claim.
Gunder’s argues that if State Farm is considered to enjoy a privilege which
otherwise protects State Farm from a tortious-interference claim, State Farm lost
that privilege: “a tortious interference claim may succeed if improper methods
were used.” KMS Restaurant Corp. v. Wendy’s International, Inc., 361 F.3d 1321,
1327 (11th Cir. 2004).* But, as the district court determined in denying Gunter’s
motion for reconsideration, Gunder’s failed to raise its “improper means”
argument in response to State Farm’s Rule 12(b)(6) motion; and, in arguing
improper means in the motion for reconsideration, Gunder’s relied on paragraphs
of the complaint that had been stricken earlier by the court.
On appeal, Gunder’s cites -- for the first time -- paragraph 19 of the
amended complaint to claim it pleaded improper means. Even if Gunder’s has
preserved this argument, the only arguably improper means Gunder’s alleged in
*
The privilege may also be forfeited if “malice is the sole basis for the interference. In
other words, the party must be interfering solely out of spite, to do harm, or for some other bad
motive.” KMS Restaurant Corp., 361 F.3d at 1326, quoting Ernie Haire Ford, Inc. v. Ford Motor
Co., 260 F.3d 1285, 1294 n.9 (11th Cir. 2001). We have already noted in our discussion of the
slander claim that Gunder’s failed to proffer sufficient evidence of malice.
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Paragraph 19 are the statements Gunder’s claims State Farm made to its insureds
about the costs, quality, and timeliness of Gunder’s repairs. These statements are
the same statements upon which Gunder’s grounds its slander claims. Even
assuming the falsity of those statements, as earlier discussed, those statements
were privileged; they fail to show the improper means needed to defeat State
Farm’s privilege against a tortious-interference claim. See Networkip LLC v.
Spread Enterprises, Inc., 922 So.2d 355, 358 (Fla. Dist. Ct. App. 2006) (“a cause
of action for tortious interference requires a showing of both intent to damage the
business relationship and a lack of justification to take the action which caused the
damage.).
AFFIRMED.
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