Business and Business Litigation Blog

The Narrowing of Florida’s Litigation Privilege

By: Benjamin Sunshine

Florida’s litigation privilege provides parties and their attorneys legal immunity for communications made during the course of judicial proceedings unless the communication bears no relation to the proceedings.  Florida’s litigation privilege was initially developed to protect parties and their attorneys from liability for acts of defamation.[1]  Florida’s litigation privilege has since been extended to cover all acts related to and occurring within judicial proceedings.[2]

The Eleventh Circuit Court of Appeals recently clarified the limits of Florida’s litigation privilege in Sun Life Assurance Company of Canada v. Imperial Premium Finance, LLC.[3]  The Sun Life decision emphasized that Florida’s litigation privilege should be assessed on a case-by-case basis and “should not be applied in novel ways that serve to ‘eviscerate’ long-standing sources of judicially available recovery.”

The facts of Sun Life are as follows. Sun Life filed suit against Imperial for declaratory relief challenging Imperial’s ownership in life insurance policies that Sun Life originated.  In response, Imperial filed a counterclaim against Sun Life for breach of contract, which asserted that Sun Life’s challenge to Imperial’s ownership in the life insurance policies was a breach of the life insurance policies.  One of Sun Life’s affirmative defenses to Imperial’s breach of contract claim was litigation privilege.  In other words, Sun Life contended that it cannot be sued for challenging Imperial’s ownership in the life insurance policies because the “act of filing a lawsuit is absolutely immune from liability under Florida’s litigation privilege.”

Sun Life had legal support for its argument as the Florida Supreme Court in Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole held that “the litigation privilege applies across the board to actions in Florida, both to common-law causes of action, those initiated pursuant to a statute, or of some other origin.”[4]    However, Echevarria was not the Florida Supreme Court’s last word on the litigation privilege.  In Debrincat v. Fischer, the Florida Supreme Court declined to extend Florida’s litigation privilege to a claim for malicious prosecution because it would “eviscerate [the] long-established cause of action for malicious prosecution.”[5]

On appeal, the Eleventh Circuit Court of Appeals agreed with the district court’s conclusion that Florida’s litigation privilege should not bar Imperial’s breach of contract claim.  After discussing Florida’s litigation privilege jurisprudence, the Eleventh Circuit stated that “we do not think that the Florida Supreme Court [i.e. Echevarria and Debrincat] is of the view that the litigation privilege offers per se immunity against any and all causes of action that arise out of conduct in judicial proceedings.”[6]  As such, the Eleventh Circuit held that “the applicability of the [litigation] privilege must be assessed in light of the specific conduct for which the defendant seeks immunity.”[7]  Relying on Debrincat—and rejecting the Supreme Court of Florida’s holding in Echevarria—the Eleventh Circuit concluded that Florida’s litigation privilege should not bar Imperial’s breach of contract claim because “it would virtually extinguish a common form of relief: the awarding of damages for breaches of agreements not to sue a contract counterparty.”[8]

Even though the Supreme Court of Florida in Echevarria extended Florida’s litigation privilege to cover all acts related to and occurring within judicial proceedings, it appears that courts are narrowing Florida’s litigation privilege.  Time will only tell how narrow Florida’s litigation privilege will become.

[1] See Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992).

[2] See Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380, 384 (Fla. 2007).

[3] 904 F.3d 1197 (11th Cir. 2018)

[4] 950 So. 2d at 384; see also Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994)

[5] 217 So. 3d 68, 70 (Fla. 2017).

[6] Sun Life Assurance Company of Canada, 904 F.3d at 1219.

[7] Id.

[8] Id. at 1220.

Benjamin Sunshine is a member of Brinkley Morgan’s Business Litigation team in Ft. Lauderdale, concentrating his practice in business litigation matters, including creditors’ rights, bankruptcy, business torts, corporate disputes, and real property disputes. He can be reached at 954.522.2200.