4.3 Bona Fide Claim Privilege

• Jurisdiction: Arizona

Factor (d) of the Restatement and Wagenseller factors of "improper"—theinterest sought to be protected by the actor—may in certain situations be so great that it attains the status of a qualified privilege. The elements of the privilege were stated by the Supreme Court in Snow v. Western Savings and Loan Assoc.,[fn301] where, citing from Restatement (Second) of Torts, § 773, the Court stated:

One who, by asserting in good faith a legally protected interest of his own or threatening in good faith to protect the interest by appropriate means, intentionally causes a third person not to perform an existing contract or enter into a prospective contractual relation with another does not interfere improperly with the other's relation if the actor believes that his interest may otherwise be impaired or destroyed by the performance of the contract or transaction.

Restatement § 773; accord McReynolds v. Short, 115 Ariz. 166, 170-71, 564 P.2d 389, 393-94 (App. 1977). This rule protects the actor only when (1) he has or honestly believes he has a legally protected interest, (2) which he in good faith asserts or threatens to protect, and (3) he threatens to protect it by proper means. McReynolds, supra.

Clearly, the bona fide claim privilege is conditioned upon the factors enumerated in the rule. The first and the foremost are that the defendant prove the existence of a legally protected interest.[fn302] To be legally protected, the interest under this rule must be existing at the time of the interference and enforceable by the Courts

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"such as the ownership or condition of property, or a prior contract."[fn303] Arizona is in accord with this rule:[fn304]

But not every interference is actionable. If a defendant has a present, existing interest to protect such as the ownership or condition of property, or a prior contract of his own, he is privileged to prevent the performance of a contract of another which threatens it. Meason v. Ralston Purina Company,56 Ariz. 291, 107 P.2d. 224 (1940); Prosser, Law of Torts, 4th Ed. p. 944-945.

The term legally protected interest means an interest which is "so legitimate as to make one who interferes with it . . . civilly liable."[fn305] In other words, for the privilege to apply, the defendant must be protecting some interest which the law gives him the right to assert in the court of law.[fn306]

The privilege has been asserted in a variety of situations, most involving the protection of contractual rights. The privilege has been raised where the mortgagee prevented the sale of turkeys in order to protect its present security interest in the turkeys;[fn307] where the mortgagee asserted his rights under a due-on-sale clause;[fn308] where the assignee of receivables made a demand on the account debtor, preventing the payments from going to a third party;[fn309] where the sublessee's sublease was terminated upon proper termination of the primary lease by the landlord;[fn310] or where the right to purchase realty by the option holder was destroyed by a purchaser under a subsequently executed purchase contract.[fn311] In non-contractual settings, the privilege

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was raised where a governmental agency threatened condemnation, thereby interfering with an existing purchase contract...