Florida’s Sixth District Court of Appeals in Atout v. HHM Land Trust Dated October 29, 2013, 51 Fla.L.Weekly D1569a (Fla. 6^th DCA 2026) recently included an extensive discussion on Florida’s independent tort doctrine. The independent tort doctrine is an important legal doctrine, particularly when parties are in contractual privity. This doctrine stands for the proposition that tort claims must be independent of any breach of contract. See Atout, supra. The Sixth District’s extensive discussion analyzed the indicators to determine this “independence,” which may arise from the source of the duty, the asserted conduct, the damages sought, or even public policy:

Unlike claims that rely on contractual relationships, an “independent” tort is often characterized by a duty imposed by law rather than by agreement. As to this consideration, United States District Court Judge Steven Merryday has explained that the independent tort doctrine honors the same divide as the economic loss rule, but rather than looking at the nature of the loss, it focuses on the source of the duty allegedly breached. “If a contract imposes a duty, and the defendant breaches that duty, the plaintiff must sue for breach of contract. If society imposes the duty, the plaintiff must sue in tort.”  Following this reasoning, courts should consider whether the alleged breach of a duty in tort coincides or overlaps with a duty imposed by a contract. If the duty at issue is within the scope of a contract, and the relationship of the parties that led to the creation of that duty stems from a contract, then that duty’s source is from contract and any alleged tort claims based on a breach of those duties may not be “independent.”

But the analysis may not end there, as “independent” torts can be characterized by “other conduct” and distinct damages. The “other conduct” consideration requires that for a tort claim to exist alongside a breach of contract, the tort must arise from acts independent of the contract’s breach.  It requires proof of facts separate and distinct from the contract breach.  In other words, under this consideration, the bad conduct serving as the predicate for the breach of contract claim must go beyond a failure to comply with the contract. 

Finally, in some circumstances, the nature of the loss may also be of guidance, as the nature of the loss often informs whether society has imposed an “independent” duty.  While Tiara abolished the perhaps overly simplistic contractual privity branch of the economic loss rule, the remaining independent tort doctrine should still consider the nature of the harm at issue as an indication of whether the claim asserted is truly independent of a contract or is simply a recasting of a contract action into a tort action.

With most broken contracts, injuries are measured in the harm to a party’s economic interests, not in the harm to a party’s person or property. When claims in tort are brought seeking identical damages to those available by contract and are clearly economic in nature, that is a strong indicator that the alleged tort claims are not “independent.”  Conversely, when claims are brought in tort seeking damages for personal injury or other non-economic damages, that is a strong indicator that some independent duty is at stake. While the nature of the damages is no longer a per se rubric after Tiara, their nature is still relevant in determining whether the tort claim brought is truly independent of a related contract.  For those reasons, courts should continue to consider the nature of the damages sought.

In the end, beyond examining duty, conduct, and damages, one last overriding consideration must be addressed — public policy. Because there are some duties which the law will not allow a party to avoid by contract, the old economic loss rule prohibited some torts from being dismissed when public policy forbade dismissal. For example, professionals who negligently performed a contracted-for service were still liable in tort for malpractice.  That is so because, despite recognizing the parties’ general freedom to set the boundaries of their duties and rights voluntarily, courts across the country, including the Florida Supreme Court, determined that such freedom was not absolute and created certain exceptions to the old economic loss rule born out of public policy considerations. Those previously identified exceptions, should be honored under the independent tort doctrine.

Atout, supra (internal citations omitted)

Keep this discussion in mind when trying to create or assert tort claims to navigate around the contract or the economic damages being asserted do what may be nothing but a breach of contract.