Section 11.11 Tortious Interference With Contract

• Library: Construction Law 2016 Supp

G. (§11.11) Tortious Interference With Contract

A design professional may be sued for tortious interference with a contract. Killian Constr. Co. v. Jack D. Ball & Assocs., 865 S.W.2d 889 (Mo. App. S.D. 1993). The plaintiff does not need to have a contract in order to sue. Id. at 891. There must be “reasonable expectations of economic advantage or commercial relations.” Id. (quoting Hartbarger v. Burdeau Real Estate Co., 741 S.W.2d 309, 310 (Mo. App. E.D. 1987)); see also Juengel Constr. Co. v. Mt. Etna, Inc., 622 S.W.2d 510 (Mo. App. E.D. 1981). Killian Construction Company sued an engineering firm and another construction company for “malicious interference.” Killian Constr. Co. v. Jack D. Ball & Assocs., 865 S.W.2d at 891. It argued that it was the lowest bidder on a public school project and that the wrongful acts of the defendants prevented it from being awarded the job. Id. The trial court dismissed the claim for failure to state a cause of action. Id. at 890. The court of appeals reversed and stated that the plaintiff’s petition stated a claim for wrongful acts that interfered with a business expectancy. Id. at 893. The defendants were alleged to have breached a duty of neutrality and good faith, and the defendant engineering firm was alleged to have been biased toward the company that was eventually awarded the contract. Id.

A design professional may be able to interfere with a contract between a contractor and an owner if there is justification. Fleischer v. Hellmuth, Obata & Kassabaum, Inc., 870 S.W.2d 832, 837–38 (Mo. App. E.D. 1993). The elements of tortious interference with contract are:

A contract

Defendant’s knowledge of the contract

Defendant’s intentional interference that induced or caused a breach of the contract

Absence of justification

Damages resulting from defendant’s conduct

Id. at 837. The plaintiffs in Fleischer attempted to sue the design professional for tortious interference with a contract, but the court found that the plaintiffs failed to establish the absence of justification. Id. at 838. A design professional may be protected by a qualified privilege. Id. This privilege extends to statements made “in performance of aduty, or with a fair and reasonable purpose of protecting the interest of the person making them, or the interest of the person to whom they were made.” Id. (quoting Kennedy v. Kennedy, 819 S.W.2d 406, 410 (Mo. App. S.D. 1991)). In Fleischer, the design professional had a contractual duty to inform the...