dissenting.
I respectfully dissent. Plaintiff Niemeyer has not stated a claim against USF & G for tortious interference with the contract between herself and American General, her uninsured motorist carrier. I agree with the Court of Appeals that the petition was insufficient to state a claim for which relief could be granted, and I believe that the substance of the purported action suffers from underlying defects as well.
The elements of an action for tortious interference with a contract are not present here. That action arises when a third person maliciously interferes in a contract between two parties, inducing one of them to breach the contract to the detriment of the other. The plaintiff in such an action must also show that the damage was proximately sustained as a result of the interference. “Malice” in this context means a wrongful act, done intentionally and without just cause or excuse. Schonwald v. Ragains, 32 Okl. 223, 122 P. 203 (1912); Stebbins v. Edwards, 101 Okl. 188, 224 P. 714 (1924); Crystal Gas Company v. Oklahoma Natural Gas Company, Okl., 529 P.2d 987 (1974); Del State Bank v. Salmon, Okl., 548 P.2d 1024 (1976); Mac Adjustment, Inc. v. Property Loss Research, Okl., 595 P.2d 427 (1979).
Here there was no malicious interference. There was no breach of contract. The contract was fully performed and plaintiff recovered the policy limits. There were no damages. Plaintiff has fully recovered on her contractual remedies and is attempting to obtain a double recovery.
*1324The communications between USF & G and American General were absolutely privileged. They were directly related to a potential lawsuit in which USF & G and American General would be co-defendants. Ms. Niemeyer had made claims against both defendants and the communications were made during the investigation and evaluation process by the insurers. Suit was in fact subsequently filed against American General. As with any potential co-defendants with a common interest in investigating, evaluating and defending claims against them, communications between these insureds were privileged by virtue of 12 O.S.1981, § 1443.1, and case law thereunder. See e.g., Hammett v. Hunter, 189 Okl. 455, 117 P.2d 511 (1941). USF & G was protected from suits resting on these alleged libelous factual underpinnings.
Other courts have extended the absolute privilege from communications made during legal proceedings, to events outside the courtroom and steps prior to trial. See, Hoover v. Van Stone, 540 F.Supp. 1118 (D.C.Del.1982); Lerette v. Dean Witter Org., Inc., 60 Cal.App.3d 573, 131 Cal.Rptr. 592 (1976). This Court recently expanded the absolute privilege to communications made before legal proceedings are begun. In Kirschstein v. Haynes, Okl., 788 P.2d 941 (1990), we adopted the Restatement view and extended the statutory privilege for attorneys, parties and witnesses to communications made before actual proceedings are begun. The facts in Kirschstein were more extreme than those presented here, as no actual judicial proceeding was ever initiated there.
The trial court did not specify the reasons for its dismissal of Niemeyer’s action. In affirming that dismissal, the Court of Appeals correctly held that plaintiffs petition failed to state a claim for which relief could be granted as plaintiff did not allege that defendant’s interference was not justified, privileged or excused. An improper motive, a wrongful action without justification or privilege, is an essential part of the plaintiff’s cause of action which must be pleaded and proved. See e.g., Mac Adjustment, supra.
While it is true that the new Pleading Code does not require that detailed facts be set out or that terms of art and legal phraseology be used when pleading a cause of action, it is necessary for plaintiff to show a right to relief. In The Petition Under the New Pleading Code, 38 Okl.L.Rev. 245, 246, 256 (1985), Professor Fraser states that under the new Code, “a plaintiff must show a right to relief rather than state facts sufficient to constitute a cause of action. A petition fails to show a right to relief where it fails to show either specifically or by implication all the essential elements of the plaintiff’s claim ...” A petition “should disclose the existence of the necessary elements of a legally recognized claim or cause of action.” Professor Fraser, relying on Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), noted that a petition must contain either direct allegations on every material point necessary to sustain a recovery on any legal theory, or allegations from which an inference fairly may be drawn that there will be evidence on these material points.
The majority’s decision allows Ms. Niem-eyer to pursue a double recovery. She has already fully recovered under her insurance contract with American General. There was NO BREACH of that contract. She received the full policy limits of $200,-000.00 in settlement. Her petition states that she brings this action to recover damages from USF & G because, as a result of defendant’s alleged interference, plaintiff was:
“[C]ompelled to file a federal court action in order to obtain a fair and reasonable settlement ... [and] therefore expended substantial attorneys fees which should not have been necessary and also suffered emotional anxiety and distress as a direct and proximate result of the Defendant’s actions.”
For this, plaintiff prayed for a judgment for “One Hundred and Thirty Thousand *1325Dollars for her actual damages ... and Three Per Cent (3%) of the net worth of USF & G for punitive damages.”
I am not aware of any decision from any jurisdiction which allows a plaintiff who recovered full contract damages to then pursue a recovery such as this for malicious interference with a contract from a third party. The majority presents no authority in support of this resolution.
Concerning this issue, it is stated in Harper & James (Harper, James and Gray, Law of Torts, 2nd Ed.) that the action for intentionally inducing a breach of contract is “an alternative to recovery against a third person for the breach”, (§ 6.5, at page 302). It has been held that a judgment on the contract action is res judicata on the other action. Israel v. Wood Dolson Co., 1 N.Y.2d 116, 151 N.Y.S.2d 1, 134 N.E.2d 97 (1956); Moreno v. Marbil Production Inc., 296 F.2d 543 (2nd Cir.1961).
I would affirm the trial court’s dismissal of this action.