B & E Gibson Enterprises Inc. v. Darngavil Enterprises LLC et al

Filing 16

ORDER granting 15 Motion for reconsideration. Counts VIII and IX are DISMISSED. Signed by Judge Gregory A. Presnell on 1/17/2013. (NWH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
B & E GIBSON ENTERPRISES INC.,
Plaintiff,
v.

Case No: 6:12-cv-1865-Orl-31GJK

DARNGAVIL ENTERPRISES LLC,
JACQUELINE BERGEN and PETER C.
BERGEN,
Defendants.

ORDER
This cause comes before the Court on a motion for reconsideration (Doc. 15) filed by
Defendants Jacqueline Bergen and Peter C. Bergen (the “Bergens”).
Defendants move for reconsideration of the Court’s prior Order (Doc. 10) which, inter
alia, denied their motion to dismiss with respect to Counts VIII (fraudulent misrepresentation)
and IX (civil conspiracy) of the Complaint. Defendants argue that the economic loss rule applies
to Count VIII despite the lack of privity between Plaintiff and the Bergens because of the
“corporate officer exception.” Vesta Const. & Design, L.L.C. v. Lotspeich & Associates, Inc.,
974 So. 2d 1176, 1181 (Fla. 5th DCA 2008). Defendants are correct that Plaintiff cannot avoid
the economic loss rule by simply asserting a claim against a corporate officer. For that reason,
the Court will grant the Motion, and reconsider the issue raised in the motion to dismiss (Doc.
5).1

1

Plaintiff never responded to the motion to dismiss (Doc. 5), thus, the Court will
reconsider Defendants’ arguments without waiting for a response.

The law is well established that the economic loss rule does not bar tort actions based on
fraudulent inducement and negligent misrepresentation—at least where the misrepresentation is
independent from the contract. See Allen v. Stephan Co., 784 So. 2d 456, 457 (Fla. 4th DCA
2000). Where the fraudulent misrepresentation is inseparable from the essence of the agreement
however, the economic loss rule applies to bar the tort claim. Hotels of Key Largo, Inc. v. RHI
Hotels, Inc., 694 So. 2d 74, 77 (Fla. 3d DCA 1997). Florida courts frequently apply the
economic loss rule where the alleged misrepresentation is directly contradicted by the terms of
the agreement. Topp, Inc. v. Uniden Am. Corp., 513 F. Supp. 2d 1345, 1348 (S.D. Fla. 2007);
Allen, 784 So. 2d at 457. In this case, Defendants argue that the misrepresentation went to the
essence of the parties’ agreement, specifically, how much profit Plaintiff could expect to receive.
The Lease contains a merger clause, sets forth the compensation for both parties, and states that
although Darngavil will make reasonable effort to keep the equipment in constant use, “this shall
not be construed as an agreement by [Darngavil] to furnish any specific number of loads, or
pounds of freight . . .” Given those terms, and Plaintiff’s lack of response, Count VIII will be
dismissed. Additionally, since fraudulent inducement was the sole basis for the civil conspiracy
claim, Count IX will be dismissed as well. Lehman Bros. Holdings, Inc. v. Hirota,
806CV2030T24MSS, 2007 WL 1471690 (M.D. Fla. May 21, 2007).
It is therefore,
ORDERED that Defendants Motion for reconsideration (Doc. 15) is GRANTED.
Counts VIII and IX are DISMISSED.
DONE and ORDERED in Orlando, Florida on January 17, 2013.

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Copies furnished to:
Counsel of Record
Unrepresented Parties

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