McCullough v. Kubiak, ___ So. 3d ___, 40 Fla. L. Weekly D457 (Fla. 4th DCA February 18, 2015)
A lawyer and her law firm sued opposing counsel and her law firm for defamation, negligent supervision, and negligent retention, based upon disparaging statements made during the deposition of a nonparty witness. The offending statements allegedly involved “the plaintiffs’ litigation practices in similar cases” and were made “to scar[e] the insurance company into settlement.” The trial court dismissed the action with prejudice, and the appellate court affirmed because the “alleged statement were made during the course of a judicial proceeding and allegedly bore some relation to settlement negotiations in that proceeding.” The appellate court distinguished DelMonico v. Traynor, 116 So. 3d 1205 (Fla. 2013), which recognized a narrow exception to the privilege for statements “made by an attorney during ex-parte, out-of-court questioning of a potential, nonparty witness while investigating matters connected to a pending lawsuit.” The absolute privilege also barred the plaintiffs’ claims for negligent supervision and retention. Nevertheless, sanctions against the plaintiffs under Section 57.105, Florida Statutes, were reversed because DelMonico demonstrated that the plaintiffs’ presented “a good faith argument for the establishment of new law, with a reasonable expectation of success.” When DelMonico was filed it “also was ‘not supported by the application of then-existing law,’” but the plaintiffs “ultimately established new law [by persuading the Florida Supreme Court to recognize] a ‘narrow scenario’ to which the absolute privileged did not apply. [The court in the present case] view[ed] the plaintiffs’ action here as merely another case in which allegedly defamed parties sought to establish a ‘narrow scenario’ to which the absolute privilege did not apply.”
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