Adverse interest exception

This limitation on the general rule that the acts of a corporate agent are imputed to the corporation is commonly known as the “adverse interest exception.” See Tew v. Chase Manhattan Bank, N.A., 728 F.Supp. 1551, 1560 (S.D.Fla.1990); Nerbonne, N.V. v. Lake Bryan Int'l Props., 685 So.2d 1029, 1031 (Fla. 5th DCA 1997); State Dep't of Ins. v. Blackburn (In re Blackburn), 209 B.R. 4, 11 (Bankr.M.D.Fla.1997).

Ordinarily, a principal may be held liable for the acts of its agent that are within the course and scope of the agency. But if a corporate agent was “acting adversely to the corporation's interests, the knowledge and misconduct of the agent are not imputed to the corporation.” O'Halloran v. PricewaterhouseCoopers LLP, 969 So. 2d 1039, 1045 (Fla. 2d DCA 2007). See also State, Dep't of Ins. v. Blackburn, 633 So.2d 521, 524 (Fla. 2d DCA 1994); see also Seidman & Seidman v. Gee, 625 So.2d 1, 2-3 (Fla. 3d DCA 1992) (referring to “an exception to the imputation rule [that] exists where an individual is acting adversely to the corporation”); Joel Strickland Enters., Inc. v. Atlantic Disc. Co., 137 So.2d 627, 629 (Fla. 1st DCA 1962) (stating that knowledge is not imputed to the corporation “where the conduct of the agent is such as to raise a clear presumption that he would not communicate to the principal the facts in controversy, as where an agent is in reality acting in his own business or for his own personal interest and adversely to the principal”).

When a corporate agent engages in misconduct that is calculated to benefit the agent and to harm the corporation, the agent has effectively ceased to function within the course and scope of the agency relationship with the corporation. O'Halloran, 969 So. 2d at 1045. Although formally he acts as the agent of the corporation, in reality he has forsaken the corporation and acts as an agent for himself. Id.