The Florida Supreme Court has used the case of Debrincat v. Fischer to clarify the limits of litigation privilege, a decision that could influence how plaintiffs file lawsuits in the future.
In the original claim, Richard and Jason Debrincat filed a defamation lawsuit and later added Stephen Fischer as a defendant. Shortly after, they dropped him from the lawsuit. Still, Fischer followed up with an action of his own: accusing the Debrincats of malicious prosecution. The Debrincats moved for a summary judgment, saying that litigation privilege protected them against Fischer’s claims. The trial court ruled in their favor. But the Florida Fourth District Court of Appeal reversed that and decided that litigation privilege indeed does not protect the Debrincats from a malicious prosecution claim after they added Fischer to the civil suit. The Florida Supreme Court supported the district court’s ruling.
“Litigation privilege is a doctrine which originated in the defamation/false light context,” attorney Benjamin Zuckerman, who has written about the case, told the Florida Record. “In Debrincat, the issue was whether a party brought into a lawsuit and later dropped from the suit could himself sue the original plaintiff for malicious prosecution, which traditionally required proof that the party originally sued prevailed below; meaning the original case came out favorably for him, and that the suit had been brought against him with malice or (in the criminal text) without probable case or an intent to harm him.”
Zuckerman also confirmed that the Debrincats, who were the “new defendant” in Fischer’s claim against them, said they were “immune from suit because of the litigation privilege doctrine.”
The ruling in Debrincat has shut down this belief.
Still, while the Florida Supreme Court decided that litigation privilege did not bar the filing of a claim for malicious prosecution, plaintiffs and defendants shouldn’t see this as a precedent to go against litigation privilege.
“There are a multitude of underlying basis which could be the predicate for possible malicious prosecution claims," Zuckerman said. "The Court was clearly indicating that Debrincat itself was not a ruling that the litigation privilege would not apply in any other malicious prosecution context.”