04-0208 VALDES V. GAB ROBINS N.A.

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State: Florida

Court: Florida Third District Court

Docket No: 04-0208 VALDES V. GAB ROBINS N.A.

Case Date: 02/22/2006

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2006

JOSE VALDES and JUANA VALDES, his wife, Appellants,

** ** ** CASE NO. 3D04-208

vs. ** GAB ROBINS NORTH AMERICA, INC., SOUTHERN UNDERWRITERS, INC., ** CAPITAL ASSURANCE SERVICES, INC., CAPITAL ASSURANCE COMPANY, ** INC., and REGGIE PHILLIPS, Appellees. Opinion filed February 22, 2006. An Appeal from the Circuit Court for Miami-Dade County, Barbara Levenson, Judge. Rebecca Watford; Lipcon, Margulies & Alsina, for appellant. Parenti, Falk, Waas, Hernandez & Cortina and Paul H. Field; Cooney, Mattson, Lance, Blackburn, Richards & O'Connor and Warren B. Kwavnick, for appellees.

LOWER TRIBUNAL NO. 02-29807

Before FLETCHER, WELLS, and SHEPHERD, JJ. WELLS, Judge. Jose Valdes and Juana Valdes appeal an order dismissing with prejudice their Corrected Amended Complaint against the

appellees, adjusters.

Mr.

Valdes'

workers'

compensation

carriers

and

We affirm.

On January 15, 1985, Jose Valdes sustained an on-the-job injury while working for a construction company and was declared permanently disabled. total disability From 1994 through 1999, Valdes received from his employer's workers'

benefits

compensation insurance. Sometime in 1999, appellees had Valdes videotaped while he was engaged in was a number queried of physical a activities. deposition Valdes the

subsequently

during

about

activities captured on videotape and then was reported to the State of Florida Division of Insurance Fraud for engaging in insurance fraud. On December 9, 1999, Valdes was arrested by the State and charged with "Workers' Compensation/Misrepresentation by False or Misleading Statement," a second degree felony. His workers' The and

compensation benefits were terminated the following day. criminal charges against Valdes ultimately were dropped,

Valdes was paid the workers' compensation benefits owed from the time they were terminated. In November of 2002, Valdes and his wife filed suit against Capital Assurance Company, Inc. (also known as Capital Assurance Services, Inc.) and its predecessor, Southern Underwriters, Inc. (collectively Capital), the insurer responsible for paying

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Valdes' workers' compensation benefits.

He also sued Capital's

claims handler/adjustor, GAB Robins North America, Inc., and its employee, Reggie Phillips. individual sounding The complaint, without to

distinguishing allege causes

between of action

defendants, in civil abuse

attempted

conspiracy, of legal

false

imprisonment,

malicious

prosecution,

process,

outrageous conduct, intentional infliction of emotional distress and loss of consortium. Capital moved to dismiss, claiming immunity under sections 440.105, 440.1051 and 626.989 of the Florida Statutes and

claiming that the complaint failed to state a cause of action under any of the seven theories asserted. The trial court

agreed with the defendants for both reasons and dismissed all seven claims. GAB Robins, which had previously answered the

Corrected Amended Complaint, moved for judgment on the pleadings based on dismissal of the complaint as to the other defendants. After Valdes declined to amend, the action was dismissed with prejudice as to all defendants. Looking, complaint, we as we must, solely to of the all allegations counts of the the

affirm

dismissal

because

complaint fails to allege the essential elements of each of these causes of action. See Susan Fixel, Inc. v. Rosenthal &

Rosenthal, Inc., 842 So. 2d 204, 206 (Fla. 3d DCA 2003)("Because a ruling on a motion to dismiss for failure to state a cause of

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action is an issue of law, it is reviewable on appeal by the de novo standard of review. When determining the merits of a motion to dismiss, the trial court's consideration is limited to the four corners of the complaint, the allegations of which must be accepted as true and considered in the light most favorable to the nonmoving party."). The civil conspiracy count fails to state a cause of action because it improperly attempts to allege a conspiracy between a corporation and its predecessor, see St. Petersburg Yacht

Charters, Inc. v. Morgan Yacht, Inc., 457 So. 2d 1028, 1041 n.4 (Fla. 2d DCA 1984)(noting that "[a] corporation cannot

conspire with itself"), and because it attempts to allege a conspiracy between the corporation and its agents and employees, without further alleging that the agents and employees had a personal stake separate and distinct from that of the

corporation. See Lipsig v. Ramlawi, 760 So. 2d 170, 180-81 (Fla. 3d DCA 2000)(finding that "neither an agent nor an employee can conspire with his or her corporate principal or employer" unless they have "a personal stake in the activities that are separate and distinct from the corporations' interest")(quoting Cedar

Hills Properties Corp. v. Eastern Fed. Corp., 575 So. 2d 673, 676 (Fla. 1st DCA 1991)). The outrageous conduct and intentional infliction of

emotional distress counts, which we treat as the same claim,

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similarly fail to state a cause of action.

See Baker v. Florida

Nat'l Bank, 559 So. 2d 284, 287 (Fla. 4th DCA 1990)(recognizing that the "tort of outrageous of conduct" and the are tort the of same

intentional

infliction

emotional

distress

claim); Estate of Morton v. U.S. Fid. & Guar. Co., 460 So. 2d 526, 527 (Fla. 4th DCA 1984)(noting that a claim for intentional infliction of emotional distress and for the "tort of outrage . . . should constitute but one cause of action"). While the

anxiety and stress of being charged by the Division of Insurance Fraud with making false statements and being arrested by the State in connection with those charges is understandable, the appellees' behavior in investigating Valdes and then allegedly falsely reporting to the Division of Insurance that Valdes had committed fraud is not the type of conduct that is so outrageous in character and extreme in degree as to go beyond the bounds of decency society. (Fla. 3d and be deemed utterly intolerable in a civilized

See, e.g., LeGrande v. Emmanuel, 889 So. 2d 991, 994 DCA 2004)(confirming infliction of that a cause of action for

intentional

emotional

distress

requires

allegations of outrageous conduct that goes so far beyond all bounds of decency as to be regarded as odious and utterly

intolerable in a civilized community); State Farm Mut. Auto. Ins. Co. v. Novotny, 657 So. 2d 1210, 1212-1213 (Fla. 5th DCA 1995)("To be sufficient, the recitation of facts must arouse

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resentment in an average member of the community, and cause him to exclaim `outrageous.' tortious or criminal; it It is not enough that the intent is is not enough that the defendant

intended to inflict emotional distress; and it is not enough if the conduct was characterized by malice or aggravation which would entitle the plaintiff to punitive damages for another

tort.")(citations omitted). Valdes' malicious prosecution and abuse of process claims are also fatally infirm. The malicious prosecution claim fails

to allege the "bona fide" termination of a prior proceeding in Valdes' favor. 1 Alleging only that a prior action ended

favorably, is not enough: It is axiomatic that a plaintiff in a malicious prosecution case must, as an essential element of that cause of action, establish that the prior litigation giving rise to the malicious prosecution suit ended
1

The elements of a malicious prosecution claim are: (1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damage as a result of the original proceeding.

Alamo-Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994).

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with a "bona fide termination" in that party's favor. This is a fancy phrase which means that the first suit, on which the malicious prosecution suit is based, ended in a manner indicating the original defendant's (and current plaintiff's) innocence of the charges or allegations contained in the first suit, so that a court handling the malicious prosecution suit, can conclude with confidence, that the termination of the first suit was not only favorable to the defendant in that suit, but also that it demonstrated the first suit's lack of merit. Therefore, suits that terminate because of technical or procedural reasons or considerations other than the merits of the first suit, are not "bona fide terminations" and will not support a malicious prosecution suit. Because lawsuits that end as the result of settlements or joint stipulations generally do not clearly demonstrate the lack of merit of the first suit, they are usually found insufficient to constitute "bona fide terminations" of the prior litigation. However, Florida courts take the view that bargaining or negotiating for the termination of litigation does not always negate the bona fide nature of the termination. Whether a withdrawal or abandonment of a lawsuit constitutes a bona fide termination in favor of a person against whom the suit was brought, depends on the total circumstances surrounding the withdrawal or abandonment. It is favorable if the dismissal indicates the lack of merit of the case against the defendant in a civil case. Doss v. Bank Of America, N.A., 857 So. 2d 991, 994-95 (Fla. 5th DCA 2003)(citations omitted)(footnote omitted). Valdes' failure to allege any improper willful acts by the appellees during the course of the prior action requires

dismissal of the abuse of process claim as well. 2

Peckins v.

2

A cause of action for abuse of process requires: (1) an illegal, improper, or perverted use of process by the defendant; (2) an ulterior motive or purpose in exercising the illegal, improper, or perverted process; and (3) damage to the plaintiff 7

Kaye, 443 So. 2d 1025, 1026 (Fla. 2d DCA 1983)(confirming that ulterior motives alone are insufficient to support an abuse of process claim and that "[t]here must be an improper willful act during the course of the proceedings to constitute an abuse of process"). The false imprisonment count also was properly dismissed because it failed to allege any ultimate facts to support the conclusory allegation that appellees either directly or

indirectly procured Valdes' arrest or detention. alleged that appellees that falsely had reported proof to the he

Valdes solely Division of

Insurance

Fraud

they

that

had

committed

insurance fraud.

This is insufficient:

[I]t is not enough . . . that the actor has given information to the police about the commission of a crime, or has accused the other of committing it, so long as he leaves to the police the decision as to what shall be done about any arrest, without persuading or influencing them. Pokorny v. First Fed. Sav. & Loan Ass'n of Largo, 382 So. 2d 678, 682 (Fla. 1980)(quoting Restatement (Second) of Torts,

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