467 So.2d 277 (Fla. 1985), 63739, Metropolitan Life Ins. Co. v. McCarson

Docket Nº63739.
Citation467 So.2d 277, 10 Fla. L. Weekly 154
Opinion JudgeAuthor: Ehrlich
Party NameMETROPOLITAN LIFE INSURANCE COMPANY, Petitioner, v. Ernest D. McCARSON, Sr., etc., et al., Respondents.
AttorneyArthur J. England, Jr. of Fine, Jacobson, Block, England, Klein, Colan and Simon, Miami, Florida; Donald J. Sasser and William H. Pruitt, West Palm Beach, Florida; and John G. Pare', Tampa, Florida, for Petitioner.
Case DateMarch 07, 1985
CourtSupreme Court of Florida

Page 277

467 So.2d 277 (Fla. 1985)

10 Fla. L. Weekly 154

METROPOLITAN LIFE INSURANCE COMPANY, Petitioner,

v.

Ernest D. McCARSON, Sr., etc., et al., Respondents.

No. 63739.

Supreme Court of Florida.

March 7, 1985

Rehearing Denied May 6, 1985.

Arthur J. England, Jr. of Fine, Jacobson, Block, England, Klein, Colan & Simon, Miami, Donald J. Sasser and William H. Pruitt, West Palm Beach, and John G. Pare, Tampa, for petitioner.

Samuel D. Phillips, M. Lee Thompson and Larry Klein, West Palm Beach, for respondents.

EHRLICH, Justice.

This cause is before us because the decision of the district court in Metropolitan Life Insurance Co. v. McCarson, 429 So.2d 1287 (Fla. 4th DCA 1983), directly and expressly

Page 278

conflicts with a decision of another district court, Gmuer v. Garner, 426 So.2d 972 (Fla. 2d DCA 1982). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and we approve in part and quash in part the decision of the Fourth District.

McCarson was issued a group insurance policy by Metropolitan Life which covered employees of his paint and body shop including his wife. The next year, Mrs. McCarson became incapacitated with Alzheimer's disease. Metropolitan stopped payment of benefits for her, claiming that the condition had been preexisting and that the failure to disclose it voided her coverage. McCarson brought suit; Metropolitan was found to be in breach of contract and ordered to provide coverage pursuant to the contract. Later it became necessary for Mrs. McCarson to have round-the-clock nursing, for which Metropolitan was liable under the terms of its contract until the policy lapsed or Mrs. McCarson became eligible for Medicare. After requesting proof of ineligibility for Medicare, and receiving no response, Metropolitan eventually discontinued payments and the round-the-clock nursing ceased. McCarson brought suit to enforce the policy provisions, but in the meantime, Mrs. McCarson was removed from her home and placed in a total care nursing facility where her condition deteriorated remarkably. A few months later she died of a heart attack. Medical testimony indicated that the stress of her new surroundings probably brought about her demise. McCarson amended his original complaint and, as Lucille's personal representative, added a count for wrongful death on the theory that Metropolitan's failure to fulfill the terms of the contract had been a willfull infliction of emotional distress upon Mrs. McCarson which had thereby caused her death. A jury awarded McCarson medical costs, $200,000 for the emotional distress suffered by Mrs. McCarson, and $250,000 for her wrongful death. The trial court struck the award for Mrs. McCarson's emotional distress but upheld the remainder of the award. Metropolitan appealed but the Fourth District Court of Appeal affirmed the award, finding a cause of action for intentional infliction of emotional distress sufficient to support the cause of action for wrongful death.

We approve the Fourth District's decision insofar as it states that Florida recognizes the tort of intentional infliction of emotional distress. We have skirted that issue in previous cases, finding it not to be directly before the Court. See e.g., LaPorte v. Associated Independents, Inc., 163 So.2d 267 (Fla.1964); Slocum v. Food Fair Stores, 100 So.2d 396 (Fla.1958); Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950). The thorough discussion and analysis of the Fourth District below shows that four of the five district courts of appeal have recognized that tort. Dominguez v. Equitable Life Assurance Society, 438 So.2d 58 (Fla. 3d DCA 1983); Scheuer v. Willie, 385 So.2d 1076 (Fla. 4th DCA 1980); Food Fair, Inc. v. Anderson, 382 So.2d 150 (Fla. 5th DCA 1980); Ford Motor Credit Co. v. Sheehan, 373 So.2d 956 (Fla. 1st DCA), cert. dismissed, 379 So.2d 204 (Fla.1979). Only the Second District has failed to recognize the availability of an independent cause of action for intentional infliction of emotional distress. Gmeur v. Garner. We are in agreement with the majority and so disapprove the decision in Gmeur.

The Fourth District joined with the First and Fifth in adopting Section 46, Restatement (Second) of Torts (1965) as the appropriate definition of the tort. Nonetheless, the Fourth District did not conform its findings to the comments explaining the application of this definition:

d. Extreme and outrageous conduct ..... It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go

Page 279

beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"

....

g. The conduct, although it would otherwise be extreme and outrageous, may be privileged under the circumstances. The actor is never liable, for example, where he has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress.

Restatement (Second) of Torts § 46 (1965). In light of the verdict in McCarson's favor, we must assume all disputes of fact were resolved and all reasonable...

To continue reading

Request your trial
311 practice notes
  • 223 F.Supp.2d 1284 (M.D.Fla. 2002), 600-CV-746-ORL-31, Jones v. Law Firm of Hill and Ponton
    • United States
    • Federal Cases United States District Courts 11th Circuit United States District Court of Middle District of Florida
    • August 13, 2002
    ...would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla.1985) (quoting Restatement (Second) of Torts, § 46 comment d (1965)); Martin v. Baer, 928 F.2d 1067 (11th Cir.1991). In Florida,......
  • 355 B.R. 349 (Bkrtcy.S.D.Fla. 2006), 05-42173, In re Palomino
    • United States
    • Federal Cases United States Bankruptcy Courts Eleventh Circuit
    • October 13, 2006
    ...where such third party may derive only an incidental or consequential benefit from the contract, Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277 (Fla.1985), it is equally true that there is no such limitation when the third party is the intended third party beneficiary of the contract......
  • 515 F.Supp.2d 25 (D.D.C. 2007), C. A. 01-2094, Peterson v. Islamic Republic of Iran
    • United States
    • Federal Cases United States District Courts United States District Court (Columbia)
    • September 7, 2007
    ...56, 480 A.2d 610, 614 (1984); Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 934-35 (D.C.1995); Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla.1985); Yarbray v. Southern Bell Tel. & Tel. Co., 261 Ga. 703, 409 S.E.2d 835, 837 (1991); Palmateer v. International Harvest......
  • 791 F.Supp. 1536 (S.D.Fla. 1992), 88-1550, Stockett v. Tolin
    • United States
    • Federal Cases United States District Courts 11th Circuit United States District Courts. 11th Circuit. Southern District of Florida
    • April 24, 1992
    ...DCA 1980). Florida also recognizes the tort of intentional infliction of emotional distress. Metropolitan Life Insurance Co. v. McCarson, 467 So.2d 277, 278-279 (Fla.1985) (resolving a conflict among the intermediate appellate courts and adopting the definition found at Section 46 of the Re......
  • Request a trial to view additional results
307 cases
  • 223 F.Supp.2d 1284 (M.D.Fla. 2002), 600-CV-746-ORL-31, Jones v. Law Firm of Hill and Ponton
    • United States
    • Federal Cases United States District Courts 11th Circuit United States District Court of Middle District of Florida
    • August 13, 2002
    ...would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla.1985) (quoting Restatement (Second) of Torts, § 46 comment d (1965)); Martin v. Baer, 928 F.2d 1067 (11th Cir.1991). In Florida,......
  • 355 B.R. 349 (Bkrtcy.S.D.Fla. 2006), 05-42173, In re Palomino
    • United States
    • Federal Cases United States Bankruptcy Courts Eleventh Circuit
    • October 13, 2006
    ...where such third party may derive only an incidental or consequential benefit from the contract, Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277 (Fla.1985), it is equally true that there is no such limitation when the third party is the intended third party beneficiary of the contract......
  • 515 F.Supp.2d 25 (D.D.C. 2007), C. A. 01-2094, Peterson v. Islamic Republic of Iran
    • United States
    • Federal Cases United States District Courts United States District Court (Columbia)
    • September 7, 2007
    ...56, 480 A.2d 610, 614 (1984); Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 934-35 (D.C.1995); Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla.1985); Yarbray v. Southern Bell Tel. & Tel. Co., 261 Ga. 703, 409 S.E.2d 835, 837 (1991); Palmateer v. International Harvest......
  • 791 F.Supp. 1536 (S.D.Fla. 1992), 88-1550, Stockett v. Tolin
    • United States
    • Federal Cases United States District Courts 11th Circuit United States District Courts. 11th Circuit. Southern District of Florida
    • April 24, 1992
    ...DCA 1980). Florida also recognizes the tort of intentional infliction of emotional distress. Metropolitan Life Insurance Co. v. McCarson, 467 So.2d 277, 278-279 (Fla.1985) (resolving a conflict among the intermediate appellate courts and adopting the definition found at Section 46 of the Re......
  • Request a trial to view additional results
1 firm's commentaries
  • Let’s Not Forget About Tort
    • United States
    • LexBlog United States
    • September 28, 2012
    ...let’s not forget about tort. 1 Berger, Arthur L., Florida Causes of Action (2006) (citing, inter alia, Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277 (Fla. 1985).2 Id. (citing, inter alia, Dominquez v. Equitable Life Assurance Soc’y of the U.S., 438 So. 2d 58 (Fla. 3d DCA...
1 books & journal articles
  • Discrimination and outrage: the migration from civil rights to tort law.
    • United States
    • William and Mary Law Review Vol. 48 Nbr. 6, May 2007
    • May 1, 2007
    ...Id. (67.) Id. (68.) Id. (69.) Id. (70.) Id. at 307. (71.) See id. at 309. (72.) Id. (73.) Id. (quoting Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277, 278-79 (Fla. 1985)). (74.) Id. (quoting Scheller v. Am. Med. Int'l, Inc., 502 So. 2d 1268, 1271 (Fla. App. 1987)). (75.) Whether an employ......