The Florida Bar

Florida Bar Journal

The Independent Tort Doctrine

Letters

“Post-Tiara: Contracts Are Still King,” one of the featured articles in the July/August 2021 issue of The Florida Bar Journal, was well-researched, with an easy-to-follow argument. Legal writing of this caliber is a goal of mine. The article, however, should not be considered as an undisputed summary of the current state of the law regarding the independent tort doctrine; instead, the article argues exclusively from the standpoint of defendants’ interests.

The most significant evidence of the article’s predisposition is that the article encourages trial courts to apply the independent tort doctrine on a motion to dismiss. For starters, Rule 1.140(b) does not identify the independent tort doctrine as a basis for a motion to dismiss; granted, Rule 1.110(d) does permit litigants to move to dismiss based on an affirmative defense, but only if the basis for the defense appears on the face of the pleading. Because there is a multitude of questions to be answered before a trial court can conclude that the independent tort doctrine applies and that there are no exceptions, it is (to put it mildly) unlikely that the basis for the defense will appear within the four corners of the complaint.

To preempt those questions, the article suggests that trial courts require plaintiffs to allege facts negating the application of the independent tort doctrine. In other words, the article asks trial courts to compel plaintiffs to plead in anticipation of an affirmative defense — a pleading requirement that has been and remains prohibited by the Florida Supreme Court and every district court of appeal.

If the independent tort doctrine is to be applied at all (assuming Tiara Condo didn’t eliminate or significantly restrict the application of the doctrine, which is a lengthier discussion for another day), the doctrine can only be applied on a motion for summary judgment after all relevant discovery has been conducted. And then, assuming a defendant has met its burden of proof on its affirmative defense, trial courts may grant that motion, simultaneously protecting the constitutional right of access to the courts while promoting the just, speedy, and inexpensive resolution of lawsuits.

Dave Milton, Orlando