Understanding the Independent Tort Doctrine in Florida Real Estate Litigation
In Florida, parties to a contract cannot sidestep the terms of their agreement by simply rebranding a breach of contract as a tort claim. This principle is rooted in what’s known as the independent tort doctrine—a legal doctrine that prevents plaintiffs from recovering in tort when the alleged misconduct arises directly from the contract itself.
At Recalde Law Firm, P.A., we frequently encounter real estate litigation where one party claims fraudulent or negligent misrepresentation in connection with a contract-based transaction. In many of those cases, the independent tort doctrine becomes a powerful defense—especially when the claims do not allege misconduct beyond the contract terms.
The Independent Tort Doctrine Explained
Florida courts have consistently held that a breach of contract, standing alone, is not actionable as a tort. As the Florida Supreme Court explained, a plaintiff must show additional conduct that amounts to a separate and independent tort in order to state a viable claim outside the contract.
(Tiara Condo. Ass’n v. Marsh & McLennan Cos., 110 So. 3d 399 (Fla. 2013) (Pariente, J., concurring))
(Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So. 2d 532 (Fla. 2004))
(HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So. 2d 1238 (Fla. 1996))
The doctrine is designed to protect the integrity of negotiated contract terms and to prevent parties from using tort law to obtain remedies they did not bargain for.
When the Doctrine Applies
In a recent matter, the plaintiff’s claims were entirely based on alleged misrepresentations contained in the contract and disclosure statement. There were no allegations of misconduct outside the four corners of the agreement.
Where all alleged misrepresentations are tied directly to the contract—and no independent conduct is pled—Florida law bars tort claims such as:
• Fraudulent misrepresentation
• Negligent misrepresentation
• Fraudulent concealment
In Witt v. La Gorce Country Club, Inc., 35 So. 3d 1033 (Fla. 3d DCA 2010), and related cases, courts reaffirmed that tort claims must rest on facts “separate and distinct” from the contract breach to proceed.
The Role of the Economic Loss Rule
In addition to the independent tort doctrine, Florida courts have also applied the economic loss rule to limit recovery in contract-based disputes where the only damages alleged are economic in nature.
When the claimed misrepresentations are inseparably tied to the agreement—and when the contract contains clear “AS IS” language and assigns inspection responsibility to the buyer—courts have found that tort claims are barred as a matter of law.
This principle was applied in Pressman v. Wolf, 732 So. 2d 356 (Fla. 3d DCA 1999), Hotels of Key Largo, Inc. v. RHI Hotels, Inc., 694 So. 2d 74 (Fla. 3d DCA 1997), and again in HTP, Ltd. The reasoning: plaintiffs may not use tort law to escape the contract’s risk allocation.
Conclusion
In real estate disputes—especially those involving residential sales contracts—parties should understand the limits of tort-based claims. When a complaint merely repackages contract allegations as torts without alleging independent conduct, those claims may fail under Florida law.
At Recalde Law Firm, P.A., we defend clients against claims that improperly blur the line between breach of contract and tort, using Florida’s independent tort doctrine and economic loss rule to enforce the integrity of the deal.
Recalde Law Firm, P.A.
Miami, Florida
Phone: (305) 792-9100
Email: [email protected]
This post is for informational purposes only and does not constitute legal advice or establish an attorney-client relationship.
