LAUREL et al v. COTTON STATES MUTUAL INSURANCE COMPANY et al

Filing 22

ORDER DISMISSING THE AMENDED COMPLAINT IN PART re granting in part 13 Motion to Dismiss for Failure to State a Claim; granting in part 14 Motion to Dismiss for Failure to State a Claim. The intentional-infliction claim is dismissed. The case will go forward on the malicious-prosecution claim. I do not direct the entry of judgment under Federal Rule of Civil Procedure 54(b). Signed by JUDGE ROBERT L HINKLE on 2/14/2017. (jcw)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION

RUBEN AND LORRIE LAUREL,
Plaintiffs,
v.

CASE NO. 5:16cv284-RH/GRJ

COTTON STATES MUTUAL
INSURANCE COMPANY et al.,
Defendants.
________________________________________/
ORDER DISMISSING THE AMENDED COMPLAINT IN PART
In this action the plaintiffs assert claims for malicious prosecution and
intentional infliction of emotional distress. The defendants have moved to dismiss
for failure to state a claim on which relief can be granted. This order does not
dismiss the malicious-prosecution claim but does dismiss the intentional-infliction
claim.
I
To survive a motion to dismiss for failure to state a claim, a plaintiff must
plead “factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
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678 (2009). For purposes of the motion, the complaint’s factual allegations, though
not its legal conclusions, must be accepted as true. Id.; see also Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
A motion to dismiss is not the vehicle by which the truth of a plaintiff’s
factual allegations should be judged. Instead, it remains true, after Twombly and
Iqbal as before, that “federal courts and litigants must rely on summary judgment
and control of discovery to weed out unmeritorious claims sooner rather than
later.” Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit,
507 U.S. 163, 168-69 (1993).
II
The defendants say the malicious-prosecution claim is deficient in two
respects.
First, a malicious-prosecution claim can go forward only if there was an
underlying criminal charge against, and a “bona fide termination” of the charge in
favor of, the malicious-prosecution plaintiff. See, e.g., Alamo Rent-A-Car, Inc. v.
Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994) (setting out the elements of a
malicious-prosecution claim). The defendants say the underlying charges against
the plaintiffs did not result in a bona fide termination in their favor. But the
plaintiffs allege that the charges were dropped when the only supporting
evidence—an expert’s opinion—was ruled insufficiently reliable to be admitted

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into evidence. This is an adequate allegation of a bona fide termination of the
charges. See Union Oil of Cal. Amsco Div. v. Watson, 468 So.2d 349, 354 (Fla. 3d
DCA 1985) (“[W]here a dismissal is taken because of insufficiency of the
evidence, the requirement of a favorable termination is met.”).
Second, probable cause is a complete defense to a malicious-prosecution
claim. See, e.g., Rankin v. Evans, 133 F.3d 1425, 1436 (11th Cir. 1998). The
defendants assert that the amended complaint does not adequately allege absence
of probable cause for the underlying charges. It is true that the amended complaint
does not allege absence of “probable cause” using that term. But the amended
complaint alleges that the criminal charges were brought against the plaintiffs as a
direct result of the defendants’ “malicious conduct, fraud and misrepresentation”
and that the charges “would not have been brought but for the malicious conduct,
fraud and misrepresentation.” Am. Compl., ECF No. 5, at 9-10. This is a sufficient
allegation of lack of probable cause. Whether the allegation is true cannot be
determined on the motion to dismiss.
III
In Metropolitan Life Insurance Co. v. McCarson, 467 So. 2d 277 (Fla.
1985), the Florida Supreme Court recognized the tort of intentional infliction of
emotional distress, but only for extreme and outrageous conduct. The court

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adopted the Restatement’s guidance on what constitutes sufficiently outrageous
conduct. The relevant provision is this:
Extreme and outrageous conduct . . . . It has not been enough
that the defendant has acted with an intent which is tortious or even
criminal, or that he has intended to inflict emotional distress, or even
that his conduct has been characterized by “malice,” or a degree of
aggravation which would entitle the plaintiff to punitive damages for
another tort. Liability has been found only where the conduct has been
so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community. Generally, the case is one
in which the recitation of the facts to an average member of the
community would arouse his resentment against the actor, and lead
him to exclaim, “Outrageous!”
Id. at 278-79 (quoting Restatement (Second) of Torts § 46 (1965)).
Whether conduct meets this standard is, in the first instance, a question of
law for the court. See, e.g., Vance v. S. Bell Tel. & Tel. Co., 983 F.2d 1573, 1575
n.7 (11th Cir. 1993). The required degree of extreme and outrageous conduct is
high. See id.; see also Estate of Duckett ex rel. Calvert v. Cable News Network
LLLP, No. 5:06-cv-444-Oc-10GRJ, 2008 WL 2959753, at *4-5 (M.D. Fla. July 31,
2008) (denying a motion to dismiss where the defendants convinced a mother
whose son had disappeared to appear on the “Nancy Grace” show, the defendants
inferred during the interview that the mother was involved in the disappearance,
and the mother later committed suicide).
The plaintiffs’ factual allegations are sufficient to state a maliciousprosecution claim. But the allegations do not rise to the level required to state an
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intentional-infliction claim. The alleged facts are not “so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a civilized community.”
IV
For these reasons,
IT IS ORDERED:
The motions to dismiss, ECF Nos. 13 and 14, are granted in part. The
intentional-infliction claim is dismissed. The case will go forward on the
malicious-prosecution claim. I do not direct the entry of judgment under Federal
Rule of Civil Procedure 54(b).
SO ORDERED on February 14, 2017.
s/Robert L. Hinkle
United States District Judge

Case No. 5:16cv284-RH/GRJ