Motion,Ex Parte: PEERENBOOM, HAROLD V PERLMUTTER, ISAAC IKE

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                                Filing # 137140776 E-Filed 10/22/2021 10:22:30 PM

IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT IN AND FOR

DATAADEACU AATINTY CYADIDA
PALM DUAUILLUUNL I, DLURIUA

CIVIL DIVISION

CASE NO. 502013CA015257XXXXMB AI
CASE NO. 502018CA001996XXXXMB AI
(Consolidated for discovery and trial)

HAROLD PEERENBOOM,

Plaintiff,
vs.

ISAAC (“IKE”) PERLMUTTER, et. al.,

Defendants.

ISAAC (“IKE”) PERLMUTTER and
LAURA PERLMUTTER,

Counter-Piaintiffs,
vs.
HAROLD PEERENBOOM,
WILLIAM DOUBERLEY, and

CHUBB & SON, a division of
FEDERAL INSURANCE COMPANY,

Counter-Defendants.

COUNTER-PLAINTIFFS’ MOTION TO AMEND THE COUNTERCLAIMS
AGAINST COUNTER-DEFENDANTS

CUCM. DAIAARCACURAAIINTY Cl INGEDU ARDIIV7ZN FL EDI 4NINDNINNDA 40.99.2n DAA
PIL. PAL DLAI VUUINE TT, PL, JUOL IIE mDnNuecy, ULL, 1Urecieue! 1u.2e.uu ritTABLE OF CONTENTS

DT. PRELIMINARY STATEMENT uossesesssvesssnevsssevenssnensesasnscanensassnsasenencavanscsenensessnsasanenesses 1
TT. LEGAL STANDARDS uessesesessesesvsvesesesenvsvevesussensnvesesssesesssvenesssnsssssesussssessssssnsnsesssassensens 4
A. Amendment Is Freely Granted

B. The Proposed Amendments Relate Back To The Original Pleading
II. FEDERAL IS VICARIOUSLY LIABLE FOR DOUBERLEY’S CONDUCT ....s.s00ssse0e0e0 6

IV. PEERENBOOM, DOUBERLEY, AND FEDERAL ARE LIABLE TO THE
PERLMUTTERS FOR BATTERY.

A. Elements of Battery ...........

B. The Perlmutters Have Stated A Claim For Battery Ag
Federal
1. Counter-Plaintiffs Have Alleged Offensive Contact..........
2. Counter-Plaintiffs Have Alleged Intent to Cause the Offensive Contact .

V. DOUBERLEY AND FEDERAL AIDED AND ABETTED PEERENBOOM’S
INVASION OF PRIVACY .esssssssseereree

A. Elements of Aiding and Abetting Liability
1. Counter-Plaintiffs Have Alleged An Underlying Violation ..
2. Counter-Plaintiffs Have Alleged Knowledge of the Underlying Violation

2 Countoer.Plaintiffs Have Allooed Substantial Assistance In Committine the Wranodaine 1a

st Peerenboom, Douberley, and= | Tf

VI. FEDERAL ACTED NEGLIGENTLY IN FAILING TO REMEDY DOUBERLEY
CRIMINAL CONDUCT vessssseseserersssseseserscscsessesessnecssnsesensssssensnsesesensonssssseacacaeassnsensesensasasanses 15TABLE OF AUTHORITIES

Cases

Aetna Casualty & Sur. Co. v. Protective Nat’l Ins. Co.,

631 So. 2d 305 (3d DCA 1993) 6,7
AmeriFirst Bank v. Bomar,

757 F. Supp. 1365 (S.D. Fla. 1991) 0... esscecceccsseessesssesesesseeessesseesssessacsraceeaeseseseseneeeseneeesnes 12
Baggett v. Davis,

124 Fla. 701 (1936)... cecsceecseessessseessersseesseesssersneceseessessnessnecsaesrasesnsesesesessseeesserssesseeeseeesse 18
Banfield y. Addington,

104 Fla. 661 So. 893 (Fla. 1932) oo... secseeeseesseeseesseessessseesseesseesseeseessesaeeaeesneesee 16
Bidon v. Dep’t of Prof’l Reg.,

596 So. 2d 450 (Fla. 1992)... eeseecseecsecseeeseeesseecseeeseseseeeeseseseneeeetesesesesessneesseesseeseeenseeanes 18
Butler v. City of Richardson,

1997 U.S. Dist. LEXIS 4839 (N.D. Tex. Mar. 11, 1997) ......cesseesceesseesssessseesetesseeseeeseeeseees 9
Btesh v. City of Maitland,

2010 U.S. Dist. LEXIS 19815 (M.D. Fla. Mar. 5, 2010)... csesseeseesseeeseessseeeseeeeeeseeesnes 10

Carr v. State,
RAAT £99 41009N

34 IN... 999 UdY9).

Chang v. JP Morgan Chase Bank, N.A.,

845 F. 3d 1087 (1 bth Cir, 2017) ooo. eeccceeccseeecceeecesereeseeeeneveeesneeesneseanesenseeceneeeeseeeeenecee 13
Commonwealth v. Gregory,

1A.2d 501 (Sup. Ct. Pa. 1938) ...cccsscscsssseusssssesussssssensessssuessessssnsessessansseeseesseseneeseee W
Cammamvsn. Ithas Ctunttinan

COMmmon wean V, ouraucr,

114 Mass. 303 (1873)

Cousins Rest. Assocs. v. TGI Friday’s, Inc.,
843 So. 2d 980 (Fla. 4th DCA 2003) 000... sesccececseeecsseeecsseeeesneecesneesesnecesaneeseneeessseceeaneeesseceren &

Dorsey v. Reider,
139 So. 3d 860 Ela DONA) erator rect atat toda bate t fata ctleda delat ddetadatatababalelabtcbaldedalalah 15

Fabbiano v. Demings,
91 So. 3d 893 ‘Ela. Sth DCA 2012).

First Mercury Ins. Co. v. Sudderth,
620 F. App’x 826 (11th Cir, 2015) oo... estes cess eecsecseeeseeceseceseceseeesneeseesanesaneeseneeaneeeeeeseeneees 8

Gilison v. Flagler Bank,
303 So. 3d 999 (Fla. 4th DCA 2020)... ecccccccsccsssssseseeeseesesnsnstnnnessececesetsnsnsanansees 13,15

Gold Coast Crane Serv. v. Watier,
257 So. 2d 249 (Fla. 1971)Gov’t Employees Ins. Co. v. Prushanksky,
2014 US. Dist. LEXIS 1456 (S.D. Fla. Jan. 6, 2014) oo... ceesceestesseesseeeseeeseeeseeeeeeeseeeseees 8

Kumar v. Gate Gourmet, Inc.,
180 Wn.2d 481 (Sup. Ct. Wash. 2014) oo... cess ceeseeeseecseecssceseeeseeseseeeseeeseesseessnesaneeseeeneeenees 9

Life Gen. Sec. Ins. Co. v. Horal,
667 So. 2d 967 (Fla. 4th DCA 1996)... .escseseecseecseeessecsseceseceseesseesnecaneesneeseeesaneeseeeneeenees 4

Lopez-Loarca v. Cosme,
76 So. 3S (Fla. 4th DCA 2011) -..-scssssssseseeeeeeccecessnnneneeeeeeeceesecennnnseeeeeceeeeceennanmnanseeeeeeee 5,6

Marlin v. State Farm Mut. Auto. Ins. Co.,
761 So. 2d 380 (Fla. 4th DCA 2000) ...........eecseeeccseeeecsecesseeeseeteseeseessnseseseesseeesseeeeseesesseee 6

MCI WorldCom Network Servs. v. Mastec, Inc.,
995 So. 2d 221 (Fla. 2008).....cssscsscessccsrccssssesesssecesssevesseseueeveceseeseessnsseseseseeseststseseesseveres 18

Paul v. Holbrook,
696 So. 2d 1311 (Fla. 5th DCA 1997)...

Plyser v. Hados,
388 So. 2d 1284 (Fla. 3d DCA 1980)... .e.cceeecceeeccseeecssecesneecesneeessneessareceeneeesssecesaneccssecessnee A

Rossell v. Honolulu,
59 Haw. 173 (Sup. Ct. Hawaii 1978) .........eeccseeeccseecsseecesneecesneesesneeesarecesnneesesecessneccssecessnee 9OMIT Y. PIPSE OHION INaT t DANK,
2002 U.S. Dist. LEXIS 17759 (S.D. Fla. Aug. 23, 2002).........eeceeeeeeeeeeeeeeeeeeeee 13, 14

Smith vy. Smith,

9 S.E.2d 584 (S.C. Sup. Ct. 1940) oo ee.ceeeceeceeeceeceeecs esse eeeseeseseseneesseessessseeesneeseeesseeeeeesseeanes 11
Sullivan y. Atl. Fed. Say. & Loan Ass’n,

454 So. 2d 52 (Fla. 4th DCA 1984) ooo. ceeceesceeeseesse esse ceseeesseeeseeenscesseessesesessneesneeseeeseeeeae 8
Symmes v. Prairie Pebble Phosphate Co.,

63 So. 1 (Fla. 1913)... ceeseeesescseessecss esse eeseeeseessecsecesecesseesseseseeesseessesssessseesseesseeseeesseeaneesnes 10
Taubenfeld v. Lasko,

2021 Fla. App. LEXIS 11814 (Fla. 4th DCA Aug. 11, 2021)... eeeceeeceeeceeeeeteeeeees 13,15

Villazon v. Prudential Health Care Plan Inc.,
843 So, 24 842 (Fla 2003). ecessssseeeesessessssseeeesesesnsnsestsseeseesnesseseeeeeeesnensrsreseeesseeee &

Wallace v. Dean,
3 Sot3d 035 ran 0 eo aed ta atte tata late tebatte atta states stable! 15, 16

Rules / Statutes

Fla. R. Civ. P. 1.190

Restatement 2d of Torts, § 18 ........cccccceccessccessecsesesssseeseecesssneeseseseeseseesesesesseseesssessssesssseessaneneeeeee 8,9
Restatement 2d of Torts, § 892B o.0......cccecscccseseceseesssseseecesssseesesecseseescseenseeesesecassesseneesesessnaneeeesesse 11

itiTABLE OF EXHIBITS

No. Description Bates

A_ | [Proposed] Second Amended Counterclaim N/A

B_ | Comparison Between [Proposed] Second Amended N/A
Counterclaim and Amended Counterclaim

1 | Dec. 12, 2012 Email from H. Peerenboom to W. BSKS_PEERENBOOM_000001
Douveriey, et ai.

2 | Feb. 5, 2013 Email from H. Peerenboom to W. McGuiness 000070
Douberley

3 | Aug. 26, 2015 W. Douberley Deposition Transcript N/A

4 | Apr. 25, 2016 Evidentiary Hearing Transcript N/A

5 | Apr. 2, 2015 M. Sinke Deposition Transcrint N/A

6 | Apr. 4, 2019 E. Daly Deposition Transcript N/A

7 | Sep. 19, 2017 Evidentiary Hearing Transcript N/A

8 | Feb. 15, 2013 Email from H. Peerenboom to W. McGuinness-0000337
Douberley

9 | Aug. 25, 2015 Email from W. Douberley to M. BSKS_PEERENBOOM_000015
Bowen

10 | Oct. 10, 2017 Evidentiary Hearing Transcript N/A

11 | April 27, 2012 Email from T. Murphy to H. BSKS_CHUBB_000001
Peerenboom

12 | Mar. 21, 2005 Chubb Insurance Coverage BSKS_CHUBB_000032

13. | Chubb Insurance Company of Canada Litigation BSKS_CHUBB_000003
Management Guidelines

14 | May 10, 2012 Letter from W. Douberley to H. BSKS_CHUBB_000006
Peerenboom

15 | Apr. 8, 2016 Evidentiary Hearing Transcript N/A

16 | Aug. 25, 2015 Email from W. Douberley to M. BSKS_PEERENBOOM_000016
Bowen

17 | Jan. 17, 2013 Email from P. Nadler to W. McGuinness 000082
Douberley

18 | February 28, 2013 Letter from W. Douberley to T. BSKS_DOUBERLEY_000234

Murphy

ivCounter-Plaintiffs Isaac (“Ike”) Perlmutter and Laura Perlmutter (together, “the
Perlmutters”) hereby move, pursuant to Fla. R. Civ. P. 1.190, for leave to file amended counterclaims
against Counter-Defendants Harold Peerenboom (‘Peerenboom”), William Douberley
(“Douberley”), and Federal Insurance Company (“Federal”).

I, PRELIMINARY STATEMENT

This case involves a fraudulent and criminal scheme to secretly steal and test the
Perlmutters’ DNA in order to falsely implicate them in a hate mail campaign. The scheme was
engineered in substantial part by William Douberley, an employee of Federal Insurance Company
(“Federal”)—one of the largest insurance companies in the world.' Douberley, acting in concert
with Peerenboom, arranged to unlawfully collect the Perlmutters’ DNA without their consent.
Peerenboom intended to analyze this stolen DNA and use it publicly against Perlmutter, and
informed Douberley of this plan. More specifically, Peerenboom told Douberley that he wanted

to use the Perlmutters’ deposition “to obtain DNA from the suspected targets” so that their geneticinformation could be compared to “letters in our possession in Florida.” Ex. 1
(BSKS_PEERENBOOM_000001). Peerenboom even told Douberley that he planned to publish
the DNA analyses in order to deflate Disney’s public trading price, in an effort to engineer Mr.
Perlmutter’s termination. Ex. 2 (McGuiness 000070).

To effectuate this unlawful collection, Douberley issued subpoenas compelling the
Perlmutters to appear for nonparty depositions in a separate case. Ex. 3 (Aug. 26, 2015 Douberley
Dep. Tr.) at 43:8-44:3, 48:22-49:5, 73:9-17. Douberley and Peerenboom further arranged for

Michael Sinke (“Sinke”), a “technician” from the private firm Speckin Forensics LLC (“Speckin”),

to attend the depositions in order to steai the Perimutters’ DNA. Ex. 4 (Apr. 25, 2016 Evid. Hr’g
Tr.) at 12:23-13:3. During the depositions, Douberley caused the Perlmutters to come into contact

with special papers that were designed to appear like deposition exhibits. Ex. 5 (Apr. 2, 2015 M.

| Federal assigned Douberley to handle Peerenboom’s defense in the Kay-Dee Sportswear action, pursuant to its
contractual obligations under a casualty liability policy with Peerenboom. Ex. 6 (Apr. 4, 2019 E. Daly Dep. Tr.) at
106:24-107:11.Sinke Dep. Tr.) at 20:11-21:17. Unbeknownst to the Perlmutters, these papers had been specially
prepared and preserved by the technician for the sole purpose of collecting the genetic material of
anyone who touched them.

Douberley was fully aware that the phony exhibits had been designed to secretly take the
Perlmutters’ DNA. He met with Sinke the morning of the depositions, and was specifically
informed that the papers would be used to “collect[] both fingerprint and DNA evidence.” Ex. 5
(Apr. 2, 2015 M. Sinke Dep. Tr.) at 20:11-21:17; Ex. 7 (Sep. 19, 2017 Evid. Hr’g Tr.) at 87:19-
88:8 (Schwartz testimony).? Douberley was further instructed how to handle these papers to
ensure clean DNA samples were collected from the Perlmutters. Jd. In fact, Douberley proposed
additional methods of securing the Perlmutters’ DNA. He instructed Peerenboom to “[I]et me
know if you want to try to get a DNA sample” (Ex. 8 (McGuiness-0000337)) and proposed that
someone “pick up a used glass or water bottle” (Ex. 9 (BSKS_PEERENBOOM_000015)).

The unlawful plan was successful. During the Perlmutters’ depositions, Douberley falsely
presented the special papers as deposition exhibits and passed the papers to the Perlmutters to
handle and review. Ex. 10 (Oct. 10, 2017 Evid. Hr’g Tr.) at 13:22-14:7. Douberley did not mark
the papers as exhibits so that the papers, along with the Perlmutters’ water bottles, could be
collected by Sinke and sent to a forensics lab to test the Perlmutters’ DNA without their consent.
Id. at 12:20-23. Peerenboom then used the stolen DNA to provide news media with the results of
a fabricated DNA analysis—all in an attempt to frame the Perlmutters for serious crimes they did
not commit.

Instead of simply assessing a claim and providing counsel to its insured client, Federal
permitted tis empioyee to engage in a shametui attempt to implicate the Perimutters in the hate
mail. Federal knew by April 27, 2012 that Peerenboom wanted to conduct “DNA testing so he

could pursue charges of postal fraud” against Mr. Perlmutter, and agreed to help “clarify” this

? Ms. Schwartz represented William Matheson in the Kay-Dee Sportswear defamation action, and was present at the
Perlmutters’ depositions. She testified that “[t]here was a stack of their exhibits that [she] was asked not to touch,”
which she knew “were trying to collect DNA.” Ex. 5 at 20:11-21:17.

2issue. Ex. 11 (BSKS_CHUBB_000001). Moreover, Federal was aware by February 28, 2013—
the day after the Perlmutters’ depositions—that its employee had successfully stolen the
Perlmutters’ DNA. Douberley informed Federal that “DNA and fingerprint evidence was
collected by a technician at the deposition, but it is doubtful that he is directly involved in the
letter-writing campaign against Peerenboom.” Ex. 18 (BSKS_DOUBERLEY_000234). In other
words, Douberley knew that the Perlmutters had nothing to do with the hate mail; knew that they
would never consent to DNA testing; and still schemed to steal and test their genetic information.
Federal cannot escape its employee’s criminal conduct—especially when it did nothing to remedy
those crimes or even notify his victims.

Accordingly, the Perlmutters seek leave to file amended counterclaims (“the Second

Amended Counterclaim”) to assert the following additional counts:>

Count Counter-Defendants Cause of Action

VIL. Peerenboom, Douberley, Federal Civil BatteryVIII. Douberley, Federal Aiding and Abetting Invasion of Privacy

IX. Federal Negligence

The proposed Second Amended Counterclaim is attached as Exhibit A, and a comparison to the
currently operative Amended Counterclaim is attached as Exhibit B.* It is identical to the
Amended Counterclaim except that: (1) new paragraphs, {J 157-175, have been added in
connection with the above counts, and (2) the civil conspiracy count incorporates by reference all

preceding paragraphs.>

3 Two additional proposed amendments to the Amended Counterclaim remain pending. On April 17, 2020, the
Perlmutters sought leave to assert punitive damages against Peerenboom, Douberley, and Speckin. Dkt. 1490. On
March 2, 20201, the Perlmutters sought leave to assert punitive damages against Federal. Dkt. 1785.

* On October 21, 2021, the Perlmutters moved for reconsideration of the Court’s order granting Peerenboom’s motion
for summary judgment on the Perlmutters’ counterclaims for conversion, civil theft, abuse of process, and civil
conspiracy. As the Perlmutters respectfully ask the Court to reinstate those counterclaims, they are included in the
Second Amended Counterclaim.

> The Second Amended Counterclaim also notes that Speckin is no longer a party to this action, changes the defined
party name “Chubb” to “Federal” consistent with this Court’s usage, and corrects a misspelling in §] 152.

3II. LEGAL STANDARDS
A. Amendment Is Freely Granted
Fla. R. Civ. P. 1.190(a) provides that “[IJeave of court [to amend a pleading] shall be given

freely when justice so requires.” “Where the record indicates that a plaintiff may have a viable
claim if properly pleaded, the plaintiff is to be afforded an opportunity to amend the complaint.”
Plyser v. Hados, 388 So. 2d 1284, 1285 (Fla. 3d DCA 1980).

“Leave to amend should not be denied unless the privilege has been abused, there is prejudice
to the opposing party, or amendment would be futile.” Life Gen. Sec. Ins. Co. v. Horal, 667 So. 2d
967, 969 (Fla. 4th DCA 1996). Prejudice is unlikely where the amendment “is based on the same
conduct” as the original complaint, and where amendment is sought long enough before trial. See
Plyser, 388 So. 2d at 1284 (allowing amendment sought more than two months before trial). Indeed,
leave to amend may be properly granted “even after judgment.” Gold Coast Crane Serv. v. Watier,
257 So. 2d 249, 250 (Fla. 1971); Cousins Rest. Assocs. v. TGI Friday's, Inc., 843 So. 2d 980 (Fla.
4th DCA 2003) (reversing denial of leave to amend after notice of trial because “[t}his is not a
recognized basis for denying the motion for leave to amend”).

In this case, no trial date has been set, and the amendment will not delay any proceeding
or trial schedule, nor require any additional discovery. Moreover, the Perlmutters plead no new
facts. Rather, the Perlmutters seek to assert claims based on the same conduct that has long been
at the core of this litigation—the illegal and offensive theft, testing, and publication of the
Perlmutters’ DNA.° Extensive discovery has already been taken on these matters, and the
proposed amendments would cause no prejudice to any party.

B. The Proposed Amendments Reiate Back To The Original Pieading
Florida Rule of Civil Procedure 1.190(c) provides “when the claim or defense asserted in

the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to

© With respect to Douberley and Federal, no summary judgment hearing has yet occurred, which further supports
amendment. See Plyser, 388 So. 2d at 1284 (finding amendment particularly appropriate when “at or before a hearing
ona motion for summary judgment”).

4be set forth in the original pleading, the amendment shall relate back to the date of the original

pleading.” The rule allows for “[a]n amendment which merely makes more specific what has

already been alleged generally, or which changes the legal theory of the action,

[to] relate back

even though the statute of limitations has run in the interim.” Lopez-Loarca v. Cosme, 76 So. 3d

5, 9 (Fla. 4th DCA 2011) (finding that a fourth amended complaint related bac!

pleading where it proceeded on the same general allegations).

to the original

The Perlmutters’ proposed amendments derive from the same common nucleus of

operative facts set forth in their prior pleading: the Counter-Defendants’ illegal scl

Perlmutters’ genetic material in order to falsely connect them to hate mail.

eme to steal the

Specifically,

Douberley, while employed by Federal and working together with Peerenboom,

provided special

papers and water bottles to the Perlmutters that were used to collect their DNA, and which Counter-

Defendants knew or should have known would be disclosed to third parties. See Dkt. 629 (Apr.

7, 2017 Amended Counterclaim) at {{] 58-65 (describing Douberley’s role in the DNA theft andknowledge concerning subsequent testing). For instance, the operative counterclaims allege that:

“Peerenboom thus enlisted Chubb (including its employee, Douberley) . . . to form a
conspiracy to collect, test, and disclose the Perlmutters’ genetic information without the
Perlmutters’ knowledge or consent... .” Jd. at 439.

“In the months leading up to the Perlmutters’ depositions, Peerenboom, Chubb (including
Douberley), and others brainstormed strategies for collecting the Perlmutters” genetic

material during their depositions.” Jd. at J 50.

“Peerenboom, Chubb, and Douberley caused the Perlmutters to be subpoenaed for a deposition,
at least in part, to ensure that the Perlmutters' genetic material could be collected in a controlled
environment and would be suitable for subsequent testing and analysis.” Id. at 1 55.

“During their depositions, Douberley handed the Perlmutters these phony exhibits for
insnection, which were designed to collect th | denosited by the Perlmutters'
fingertips while they handled the documents.” ” Id. at 959.

“While under oath, Chubb's employee, Douberley, invoked his Fifth Amendment privilege
against self-incrimination to avoid answering deposition questions concerning his role in
assisting to have the Perlmutters' DNA tested.” Jd. at 4/70.

“Conspirators had a duty to inform the Perlmutters that their DNA was collected for the
nurnoses of testing it and disclosing the resnIts.” Id, at q 97.The proposed amendment merely adds legal theories of liability; the relevant facts are exactly the
same and thus relate back to the original complaint. Lopez-Loarca, 76 So. 3d at 9; Fabbiano v.
Demings, 91 So. 3d 893, 896 (Fla. 5th DCA 2012) (allowing plaintiff to change theory of recovery
from negligence to battery because the amendment “arose from the same occurrence” and thus

“relate[d] back to the original filing”).

Ill. FEDERAL IS VICARIOUSLY LIABLE FOR DOUBERLEY’S TORTIOUS
CONDUCT

As a threshold matter, Federal’s liability under respondeat superior has already been
litigated in this matter. Federal argued, in response to the Amended Counterclaim, that it could
a Lala Hable, Gre Nandan ane dat Lanne can Tet ALT 4 10.90
HOt bE EIU Labie 1OF DOUDETIEY’S CONGUCT LeCaUSE He Was TOL 11S Gipioyee. Dt. 467 at 19-20.
Federal incorrectly argued that there is a categorical rule that classifies lawyers working for an

insurance company as independent contractors.’ Judge Sasser implicitly rejected this argument in

denying Federal’s motion to dismiss with respect to several claims. Jd.

There io na reacan ta revic ic icona ac dicegvery has revealed substantial evidence ta
AMOIS Wo HU FeGUUIE LO TRY IOLE LO GGUS, Go ory CViGence 1

support Douberley’s status as an employee of Federal. Dkt. 629 at 48. Federal admits that all
staff counsel, including Douberley, are “salaried employees,” not independent contractors. Ex. 6
(Apr. 4, 2019 E. Daly Dep. Tr.) at 23:12-23; see id. at 24:5-25:7 (Douberley is a “full-time
employee”): id. at 26:3-5 (describing him as “direct employee”): Ex. 3 (Aug. 26, 2015 Douberley

Dep. Tr.) at 8:4-12 (“I’m an employee of the insurance company”).®

7 Federal has previously argued that it is “well settled that an insurer is not vicariously liable for the acts of the attorney
that it selects to defend the insured,” citing two cases. Dkt. 467 at 19-20. That is simply an incorrect statement of the
law; no such categorical rule exists. The two cases cited by Federal held that an insurance company could not be sued
for the malpractice of an outside attorney who functioned as an independent contractor. See Marlin v. State Farm
Mut. Auto. ins. Co., 161 So. 24 380, 381 (Fia. 4th DCA 2000) (hoiding that, “because the insurer exercises no controi
over the attorney’s performance, it is not, absent an agreement, liable for any alleged acts of professional negligence
committed by the attorney.”); Aetna Casualty & Sur. Co. v. Protective Nat'l Ins. Co., 631 So. 2d 305 (3d DCA 1993)
(reasoning that counsel in that matter acted “in the capacity of independent contractors, responsible for the results of
their conduct and not subject to the control and direction of their employer over the details and matter of their
performance.”). Here, as alleged by Counter-Plaintiffs and supported by the evidence, Federal retained the right to
control Douberley, who served as its employee, and the underlying claims are based on ordinary torts, not professional
malpractice.

° Federal further provided Douberiey with empioyment beneiits, including heaithcare and other perks Ex. 6 (Apr. 4,
2019 E. Daly Dep. Tr.) at 25:12-17, and paid for his employment-related expenses, including office space (id., 23:5-In addition, Federal stood to profit from Douberley’s tortious conduct in the Donnelly
litigation. Under the terms of Peerenboom’s insurance policy, Federal was obligated to “cover
damages a covered person [Peerenboom] was obligated to pay” in the Donnelly litigation. See Ex.
12 at BSKS_CHUBB_000032 at ‘196. Federal’s potential coverage obligations in the Donnelly
litigation turned, in part, on the success or failure of Douberly’s scheme. Had Douberly been able
to tie the Perlmutters to the hatemail campaign, he could have deterred the Perlmutters from
continuing to help Ms. Donnelly fund her litigation costs, exerted more settlement pressure against
Ms. Donnelly, and discredited Ms. Donnelly before a jury by tying her supporters to the hatemail.

Moreover, Federal retained the right to control Douberly’s conduct with respect to the
litigation. Cf Aema Casualty, 631 So. 2d at 306-08 (surveying caselaw that found no vicarious
liability because insurer did not retain the right to control the attorney). In its Statement of Insured
Client’s Rights, Federal explained to Peerenboom that “the lawyer will be taking instructions from

the insurance company. Under such policies, the lawyer cannot act solely on your instructions.” Ex.14 (BSKS_CHUBB_000006) at ‘008 (emphasis added). Douberly was subject to reporting
requirements that kept Federal “apprised of what’s going on in the case” so that Federal could
“manage the claim.” Ex. 6 (Apr. 4, 2019 E. Daly Dep. Tr.) at 17:17-18:5; 36:21-37:7. Federal
“follows closely along” with active litigations based on these reports. Jd. at 33:15-25; see also id.,
100:9-13. Likewise, Federal had to approve defense-related expenditures, e.g., investigative
services. Id. at 42:14-18; see also 40:7-10 (confirming that “[nJone of us have blank checks to do
what we want.”); Ex. 13 at BSKS_CHUBB_000003.

Accordingly, Counter-Plaintiffs have adequately pleaded (and substantiated through
discovery) Federal’s vicarious liability as Douberiey’s employer. Federal is thus equaily itabie for

Douberley’s tortious conduct as set forth below. See infra § IV (civil battery); § V (aiding and

a
wel expenses (id., 51:

accept non-Chubb cases. Id., 25:3-11.abetting invasion of privacy).°

IV. PEERENBOOM, DOUBERLEY, AND FEDERAL ARE LIABLE TO THE
PERLMUTTERS FOR BATTERY
A. Elements of Battery
The tort of battery consists of two elements: (1) one must inflict “harmful or offensive contact

wnan another ” and (9\ ane muct intend ta cance euch contact Panty Halhynnl KOK Ga 9d 1211

Upon abou, doa yiy One tiuoe imei tO Cauoe sucn COmacn 1 Que ¥. 1r0rer Gun, UU WU. LU 111,

1312 (Fla. 5th DCA 1997) (citing, among others, Sullivan v. Atl. Fed. Sav. & Loan Ass’n, 454 So.
2d 52, 54 (Fla. 4th DCA 1984)). "[T]he tort of battery exists to protect the integrity of the person.”
Id. Thus, “[a] bodily contact is offensive if it offends a reasonable sense of personal dignity.” First

Mercury Ins. Co. v. Sudderth, 620 F. Ann’x 826, 829 (11th Cir. 2015). Because “Itlhe element of

personal indignity involved always has been given considerable weight,” the “defendant is liable not
only for contact[s] which do actual harm, but also for those relatively trivial ones which are merely
offensive. ...” Id. It is typically up to a jury to decide whether specific contact was offensive. Id.
(finding that whether approaching a coworker from behind was offensive “presented ‘a question of
fact for the trier of fact to decide””); see also, Myers v. Cent. Fla. Invs., Inc., 2008 U.S. Dist. LEXIS
98935, at *33-35 (M.D. Fla. Oct. 23, 2008) (denying judgment as a matter of law because “there was
conflicting evidence for the jury to resolve as the finder of fact on the issues of offensiveness and
causation”).

Actionable contact is not limited to person-to-person touching and can occur where a person

is made to come into contact with an object, so long as that contact is harmful or offensive:

It is not necessary that the contact with the other’s person be directly caused by
some act of the actor. All that is necessary is that the actor intend to cause the other,
directly or indirectly, to come in contact with a foreign substance in a manner which
the other will reasonably regard as offensive.

° To the extent that there remains any question as to whether Douberley was an employee or independent contractor
of Federal, in light of the pleading and substantial evidence, that question is for a jury to decide. See Gov't Employees
Ins. Co. v. Prushanksky, 2014 U.S. Dist. LEXIS 1456, at *33 (S.D. Fla. Jan. 7, 2014) (holding that where there is a
question of fact as to whether a person was an employee or independent contractor, the court could not resolve the
matter as a matter of law); Villazon v. Prudential Health Care Plan Inc., 843 So. 2d 842, 853 (Fla. 2003) (holding that
“{t]he existence of an agency relationship is normally one for the trier of fact to decide.”).

8Restat. 2d of Torts, § 18. For example, the Second Restatement illustrates the tort of battery with

an example of a defendant who dirties a towel knowing that plaintiff will use it to wash their face:

Thus, if the actor daubs with filth a towel which he expects another to use in wiping
his face with the expectation that the other will smear his face with it and the other
does so, the actor is liable as fully as though he had directly thrown the filth in the
other’s face or had otherwise smeared his face with it.

Id. Further, it is “not necessary that the other should know of the offensive contact which is
inflicted upon him at the time when it is inflicted” as “liability is based upon [the tortfeasor’s]
intentional invasion of the other’s dignitary interest in the inviolability of his person and the affront
to the other’s dignity involved therein.” Jd. (emphasis added).

The case of Paul v. Holbrook, which relies upon the Second Restatement, is illustrative.
There, defendant allegedly touched his coworker (plaintiff). The trial court determined that such
“casual touching” did not constitute battery and the appellate court reversed. 696 So. 2d at 1312.

The court explained that “[p]roof of the technical invasion of the integrity of the plaintiff's personDY CVCTL GH CHIEFELY HUPMILESS, DUT OFJENSIVE CONLACE 15 SUTLICICIN LO State d@ Clalit LOT Ddliery alia,
at minimum, “entitles one to compensation for the resulting mental disturbance, such as fright,
revulsion, or humiliation.” Jd. (internal citation omitted) (emphasis added). The court clarified
that “the defendant is liable not only for contacts which do actual harm, but also for those relatively

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an object that they find offensive through deceptive means. See Kumar v. Gate Gourmet, Inc., 180
Wn.2d 481, 504-05 (Sup. Ct. Wash. 2014) (holding that deceiving plaintiffs into eating food that

violated their religious beliefs constituted battery). It can also include non-consensual extraction

material for the nurnose of medical testing See 2g, Rossel vy. Honolulu, 59 Haw. 173,
184 (Sup. Ct. Hawaii 1978) (finding proper a jury instruction that taking blood for a blood test
“against [plaintiff's] will and without his consent” constituted battery); Butler v. City of
Richardson, 1997 U.S. Dist. LEXIS 4839, at *17 (N.D. Tex. Mar. 11, 1997) (finding that, absent

consent, the contact incident to a blood test constitutes battery).Moreover, Florida law does not limit liability for battery to the person directly responsible
for the unwanted touching. Florida courts recognize that “a defendant may be liable for a battery
committed by another person under the ‘concert of action’ theory, which states that: [a]ll those
who, in pursuance of a common plan or design to commit a tortious act, actively take part in it,
or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or
ratify or adopt his acts done for their benefit, are equally liable with him.” Btesh v. City of
Maitland, 2010 U.S. Dist. LEXIS 19815, at *19 (M.D. Fla. Mar. 5, 2010) (emphasis added); see
also Symmes vy. Prairie Pebble Phosphate Co., 63 So. 1, 3 (Fla. 1913) (recognizing liability under
the “concert of action” theory). Accordingly, all Counter-Defendants are equally liable for battery,

as explained more fully below. !°

B. The Perlmutters Have Stated A Claim For Battery Against Peerenboom,
Douberley, and Federal

1. Counter-Plaintiffs Have Alleged Offensive Contact

Ac nleaded in the Amended Camnlaint Peeranhaam and Nanherlew factina ac Rederal’o
JAG PISGGCU Ut UES ZALCILGEG UOLBpAatt, 2 CMEULUCULE GI LZUHONLINY (GUEED ao 1 CUNEO

employee) deliberately schemed to cause offensive contact between the Perlmutters and certain
objects—for the sole purpose of stealing their DNA.!! Specifically, they caused the Perlmutters
to come into contact with “sheets of paper that were treated and prepared to facilitate the collection
of the Perlmutters’ genetic material while annearing to be ordinary deposition exhibits.” Dkt. 629
at ]57. Douberley was specifically educated as to the purpose of the papers and instructed on how
to handle them to avoid contamination. Dkt. 629 at § 58; Ex. 5 (Apr. 2, 2015 M. Sinke Dep. Tr.)
at 20:2-20 (Sinke telling Douberley to “handle them gingerly” and only “by the very top corners”).

Likewise, Douberley and Peerenboom provided water bottles at the deposition for the express

10 Independent of Florida’s “concert of action” doctrine, the Counter-Defendants’ participation in the scheme to
commit battery renders each Counter-Defendant liable under the Perlmutters’ civil conspiracy claim.

1! This Court is no doubt aware of the extensive evidence demonstrating Counter-Defendants’ plot to unlawfully obtain
and test the Perlmutter’ DNA, the Porlmutters have described that plot in dotail in their prior filings. See, eg. Dkt

2, Bey Lint

1807 (motion for summary judgment); Dkt. 1490 (proffer in support of punitive damages against Peerenboom and
Douberley); Dkt. 1785 (proffer in support of punitive damages against Federal).

10purpose of inducing the Perlmutters to use them and then collect their DNA. /d. at { 62.2 As
Peerenboom admitted, the “plan was to get [the Perlmutters] in that chair, sitting in front of that
table, [to] take their DNA.” Ex. 15 (Apr. 8, 2016 Evid. Hr’g Tr.) at 32:6-9.

This misconduct falls squarely within the scope of offensive contact that constitutes
battery. Douberley and Peerenboom intentionally caused the Perlmutters to come into contact with
objects for the purpose of stealing their genetic material. Tricking someone into touching an object
for the purpose of secretly taking and testing their DNA constitutes non-consensual and offensive
contact. Stealing someone’s genetic makeup is a fundamental violation of their bodily integrity—
the core right that the tort of battery protects. Myers, 2008 U.S. Dist. LEXIS 98935, at *33-35
(finding that battery protects against “the technical invasion of the integrity of the plaintiff's person
by even an entirely harmless, but offensive contact”). The Counter-Defendants’ fake deposition
papers were no different than the dirty cloth described in the Second Restatement. Counter-

Defendants intentionally caused the Perlmutters to come into contact with objects which they knewthe Perlmutters would not touch, had they been aware of the objects’ nature. Likewise, the
Perlmutters would never have touched the water bottles had they been informed of their true
character—that they were a covert means to steal the Perlmutters’ DNA.

In such cases, where a person “is induced by the fraud, mistake or duress to consent to a
harmful or offensive contact with his person, he may maintain an action for battery.” Restat. 2d
of Torts, § 892B. It is much like tricking a patient to consent to a medical examination. See, e.g.,
Smith v. Smith, 9 8.E.2d 584, 589-90 (S.C. Sup. Ct. 1940) (finding that “administer[ing] a drug to

another by inducing the other voluntarily to take the drug in the belief that he is taking some other

substance” is battery); Commonweaith v. Gregory, | A.2d Sup. Ct. Pa. 1938) (iricking
patient to consent to medical examination was fraud on the will of the victim equivalent to
force); Carr v. State, 34 N.E. 533, 534 (1893) (inducing victim to take explosives by

misrepresenting their dangerousness is battery as defendant sets in motion that which causes

12 For his part, Peerenboom further hired the technician (Sinke) and was a driving force behind the efforts to unlawfully
obtain the Perlmutters’ DNA. Dkt. 629 at § 51.

11injury); Commonwealth v. Stratton, 114 Mass. 303, 305-06 (Mass. 1873) (same).
2. Counter-Plaintiffs Have Alleged Intent to Cause the Offensive Contact

As also set forth in the Amended Counterclaim, there is no question that Peerenboom and
Douberley intended to cause the offensive, unwanted contact. See, e.g., Dkt. 629 at ] 59 (“Douberley
handed the Perlmutters these phony exhibits for inspection”); see also id. at J§ 50-58; J 39
(“Peerenboom thus enlisted Chubb (including its employee, Douberley) . . . to collect . . . the
Perlmutters’ genetic information”).

In fact, discovery revealed that they plotted to do so for months. See, eg., Ex. 16
(BSKS_PEERENBOOM_000016) (Douberley: “Let me know if you want to try and get a DNA
sample”); Ex. 1 (BSKS_PEERENBOOM_000001) (contemplating the collection of water bottles at
the deposition for DNA collection); Ex. 9 (BSKS_PEERENBOOM_000015) (Douberley: “we could
have an investigator pick up a used glass or water bottle”). They both collaborated on the DNA
collection scheme, attended the depositions, and ensured that the Perlmutters would touch special
papers and water bottles—so that they could be subjected to forensic DNA analyses. See Dkt. 629
at ¢ 39; Ex. 17 (McGuinness 000082) (confirming that Peerenboom wanted to hire a private
investigator to collect DNA from the Perlmutters at their depositions and that Peerenboom would
pay for it).

Counter-Defendants did so because they knew the Perlmutters would object to the collection
of genetic samples. They concluded it would be too inconvenient and time-consuming to petition
the Court for DNA testing. Ex. 10 (Oct. 10, 2017 Hr’g Tr.) at 42-45 (Douberley confirming that
“there’s a rule for which you can require people to undergo [a] physical examination” but that “I
didn’t have time to go through some court process” and “we don’t want this compitcation”).
Peerenboom and Douberley willfully caused offensive contact with the Perlmutters in a deliberate
effort to circumvent the law, and violate the Perlmutters’ rights in their own bodily integrity. That

is the definition of battery.

12Vv. DOUBERLEY AND FEDERAL AIDED AND ABETTED PEERENBOOM’S
INVASION OF PRIVACY

A. Elements of Aiding and Abetting Liability

To state a claim of aiding and abetting invasion of privacy, a plaintiff must allege: (1) the
existence of the underlying invasion of privacy; (2) knowledge of the invasion of privacy; and (3)
rendering of “substantial assistance” in committing the invasion of privacy. Gilison v. Flagler
Bank, 303 So. 3d 999, 1002 (Fla. 4th DCA 2020); AmeriFirst Bank v. Bomar, 757 F. Supp. 1365,
1380 (S.D. Fla. 1991) (holding that liability for aiding and abetting a breach of fiduciary duty
requires these three elements). !7

A person may be held liable as an aider and abettor if the accused party has a “general
awareness that his role was a part of an overall activity that is improper, and if the accused aider-
abettor knowingly and substantially assisted the violation.” Smith v. First Union Nat’l Bank, 2002
USS. Dist. LEXIS 17759, at *1 (S.D. Fla. Aug. 23, 2002). Moreover, substantial assistance occurs

when a defendant “affirmatively assists, helps conceal, or fails to act when required to do so,thereby enabling the breach to occur.” Gilison, 303 So. 3d at 1003-04; Chang v. JP Morgan Chase
Bank, N.A., 845 F. 3d 1087, 1098 (11th Cir. 2017) (same) (internal citation omitted).
1. Counter-Plaintiffs Have Alleged An Underlying Violation

As this Court recognized in its September 27, 2021 decision, the Perlmutters have
adequately pled and substantiated a claim for invasion of privacy against Counter-Defendant
Peerenboom on the basis of the publication of private facts. Dkt. 1893 at 9. For instance, Counter-
Plaintiffs pled that “Conspirators intentionally intruded on the Perlmutters’ privacy when they . . .
by means of false pretenses . . . collected the Perlmutters’ genetic material during a deposition . . .;
subjected the Perlmutters’ genetic material to unauthorized testing; . . . and disseminated materially

false and misleading test results intended to implicate the Perlmutters in serious crimes that they did

'3 Aiding and abetting liability can arise with respect to any common law tort. See Taubenfeld v.
Ang, LEXIS 11814 af 21 (Fl 4th DCA Aug 11, 2091) (hol “
Pp. LEAS | ug.

Lasko, 2021 Fla.

ith the annrnach

2 that Florida law ic “cancictent

taken in the Second Restatement of Torts, which recognizes liability for aiding and abetting ‘the tortious conduct of
another,’ without distinguishing among different underlying torts”).

13not commit.” Dkt. 629 at § 144. This tort forms the basis of the aiding and abetting claim against
Douberley and Federal.
2. Counter-Plaintiffs Have Alleged Knowledge of the Underlying Violation

As explained supra, Douberley was actively involved in the plot to illegally take the
Perlmutters’ DNA, and was specifically aware of Peerenboom’s intent to publicize information
concerning the Perlmutters’ DNA to third parties. This is pled in the Amended Counterclaim:
“Conspirators knew or should have known that, following the secret collection of the Perlmutters’
DNA at their depositions, samples of the Perlmutters’ genetic material would be sent to numerous
third parties throughout the United States and Canada.” Dkt. 629 at | 65.

Douberley’s knowledge is further supported by documentary evidence: in a February 5,
2013 email exchange with Peerenboom (three weeks prior to the Perlmutters’ depositions),
Peerenboom explained to Douberley that he intended to prove to Disney (Mr. Perlmutter’s
employer) that Mr. Perlmutter had engaged in a hate mail campaign that constituted “material
misconduct” and thereby have Mr. Perlmutter “DISMISSED FOR CAUSE” under the terms of his
contract with Disney—because “[w]illful misconduct will have a material effect on the share
price.” Ex. 2 (McGuiness 000070). For information to affect the stock price of a company as
large as Disney, that information must be widely disseminated and become widely known.
Douberley therefore knew that a significant purpose behind Peerenboom’s unlawful scheme was
to widely publicize private information—the Perlmutters’ DNA results. Douberley had, at a
minimum, “general awareness that his role was a part of an overall activity that [was] improper. .
.-” Smith, 2002 U.S. Dist. LEXIS 17759, at *1. He was generally aware that his role in stealing
the Perimutters’ DNA wouid facilitate Peerenboom’s efforts to pubitcize the test resuits.

3. Counter-Plaintiffs Have Alleged Substantial Assistance In Committing the
Wrongdoing

Peerenboom could not have acquired the Perlmutters’ genetic material that he intended to

make public without Douberley’s assistance. Douberley was centrally involved in obtaining and

conducting the deposition at which the genetic material was taken, and was specifically involved

14in ensuring the genetic material was collected via the specialized paper used in the deposition. See
Dkt. 629 at 9] 55-65 (detailing the DNA theft scheme, including Douberley’s role in arranging the
deposition and ensuring the Perlmutters touched the special collection papers); Ex. 18 (at
BSKS_DOUBERLEY_000237) (Douberley informing others at Federal that “DNA and
fingerprint evidence was collected by a technician at the deposition” in connection with “the letter-
writing campaign against Peerenboom”). Douberley also failed to take any steps to prevent the
dissemination of the improperly-stolen genetic information. This conduct constitutes substantial
assistance of Peerenboom’s tortious conduct. See, e.g., Taubenfeld, 2021 Fla. App. LEXIS 11814
at *21 (defendant who fraudulently endorsed checks provided substantial assistance sufficient to
support aiding and abetting liability for a breach of fiduciary duty); Gilison, 303 So. 3d at 1001
(bank substantially assisted defendant’s fraud by providing defendant with loans to make it appear

solvent).

VI. FEDERAL ACTED NEGLIGENTLY IN FAILING TO REMEDY DOUBERLEY’S

TAT AT COAM TOTNE a eee

A claim for negligence requires four elements: (1) a duty, (2) a breach of that duty, (3)
legal or proximate causation, and (4) actual damages. Wallace v. Dean, 3 So. 3d 1035, 1046 n.18
(Fla. 2009). The Perlmutters’ Amended Counterclaim alleges facts supporting each of these
elements, which have been further bome out by discovery.

As an initial matter, Federal had a duty to ensure that its defense of Peerenboom did not
injure third parties, and proceeded to breach that duty. Where a defendant undertakes an act, they
are required to exercise reasonably prudent foresight whenever others may be injured as a result;
in such cases, a duty of care arises from the “general facts of the case.” Dorsey v. Reider, 139 So.

3d 860, 862 (Fla. 2014). The Florida Supreme Court described this duty as follows:

This Court has long adhered to the common-law doctrine that ‘[i]n every situation
where a man undertakes to act, or to pursue a particular course, he is under an
implied legal obligation or duty to act with reasonable care, to the end that the
person or property of others may not be injured by any force which he sets in
‘esnn 1
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degree of caution which the law requires in a particular situation, he is held liable

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15for any damage that results to another, just as if he had bound himself by an
obligatory promise to exercise the required degree of care.”

Wallace, 3 So. 3d at 1050 (citing Banfield v. Addington, 140 So. 893, 896 (Fla. 1932)) (emphasis
original).

As alleged in the Amended Counterclaim, Federal was aware that the Perlmutters had an
interest in protecting their genetic material from analysis, and that once tested, the privacy of DNA
results can never be assured. Dkt. 629 at Jf] 42-43. It further alleges that Federal knew that its
employee, Douberley, had participated in a covert scheme to steal the Perlmutters’ DNA. /d. at
439. Further, Federal knew or should have known that the stolen DNA would later be sent to third
parties and analyzed. Jd. at fj 65-66. And with this knowledge, Federal had a duty to inform the
Perlmutters of the collection. Jd. at 4 97.

Discovery has amply supported these allegations. Federal knew that Douberley had
scheduled the Perlmutters’ depositions as nonparties in the Kay-Dee Sportswear case, and knew that
Douberley planned to use them to investigate the mailings and DNA issues. See id. at {| 55, 65; Ex.
18 at BSKS_DOUBERLEY_000237. Federal required Douberley to provide status reports on the
“on-going strategy for defence”; and to “consult with and seek approval” from Federal “before
undertaking any significant activity in the litigation[.]” Ex. 13 (BSKS_CHUBB_000003) at ‘005.
Federal was thus well aware of Douberley’s illicit litigation tactics.

Moreover, Federal specifically approved of this misconduct: on April 27, 2012, Peerenboom
spoke with Tracy Murphy of Federal’s claims department about the Donnelly suit. On that call,
Peerenboom discussed a strategy to attack the source of Donnelly’s litigation financing—the
Perlmutters. Peerenboom suspected that Mr. Perlmutter had distributed a news article critical of
Peerenboom to members of a nearby golf club. Dkt. 1023 at 31. Peerenboom told Murphy that
Mr. Perlmutter “distributed a letter to all members of [his] golf club” and that he “has unopened
copies of this letter which he sent to Ottawa requesting DNA testing so he could pursue charges of
postal fraud.” Ex. 11 at BSKS_CHUBB_000001. Federal committed to “clarify . . . these issues as

the investigation continues.” /d. Thus, Federal agreed that collecting the Perimutters’ DNA was

16properly part of its defense of Peerenboom.

Then, after the depositions, Douberley gave Federal a detailed report of the Perlmutters’
deposition, specifically noting “DNA and fingerprint evidence was collected by a technician at the
deposition” in connection with “the letter-writing campaign against Peerenboom.” Ex. 18
(BSKS_DOUBERLEY_000234). He made no mention of having obtained the Perlmutters’
consent to collect their DNA, but conceded “it [was] doubtful that [Mr. Perlmutter] is directly
involved in the letter-writing campaign against Peerenboom.” /d. In other words, Federal knew
that Douberley had used depositions in a case under its purview; knew that Douberley had done
so in order to implicate the Perlmutters in a hate mail campaign; and knew that the Perlmutters
were not legitimate suspects. Yet Federal failed to take any corrective action. It was clear to
Federal based on the report and other communications that Douberley had engaged in criminal and
tortious conduct against the Perlmutters, the effects of which remained ongoing and were capable

of being remedied. Yet Federal did nothing. It did not inform the Perlmutters, nor it did reprimandDouberley. Instead, Federal allowed Douberley’s scheme to proceed to fruition and the
Perlmutters’ DNA was analyzed, tested, and published. And Federal did so knowing that
Peerenboom intended to implicate the Perlmutters’ in criminal activity, e.g., postal fraud. Ex. 11
(BSKS_CHUBB_000001).

Under these facts, Federal had an affirmative duty to prevent harm to the Perlmutters based
on the “general facts of the case.” McCain v. Fla. Power Corp., 593 So. 2d 500, 503 n.2 (Fla.
1992) (finding that a “duty can arise from other sources such as . . . the general facts of the case”).
“Where a person’s conduct is such that it creates a ‘foreseeable zone of risk’ posing a general
threat of harm to others, a iegai duty wiii ordinarily be recognized to ensure that the underlying
threatening conduct is carried out reasonably.” Williams v. Davis, 974 So. 2d 1052, 1056 (Fla.

2007). Here, Federal had an affirmative duty to inform the Perlmutters that their DNA had been

17unlawfully collected and to otherwise remedy the wrongdoing of their employee, Douberley.'*
Because Federal breached this duty, the Perlmutters suffered actual harm. The Perlmutters
were harmed by the ana