Cluff v. Farmers Ins. Exchange

• Decision Date: 10 November 1969
• Docket Number: CA-CIV,No. 1,1
• Citation: 10 Ariz.App. 560,39 A.L.R.3d 731,460 P.2d 666
• Parties: , 39 A.L.R.3d 731 Arthetta M. CLUFF, a widow, Appellant, v. FARMERS INSURANCE EXCHANGE, dba Farmers Insurance Group, and Jerry E. Cranmer, Appellees. 800.
• Court: Arizona Court of Appeals

Page 666

460 P.2d 666

10 Ariz.App. 560, 39 A.L.R.3d 731

Arthetta M. CLUFF, a widow, Appellant, v. FARMERS INSURANCE EXCHANGE, dba Farmers Insurance Group, and Jerry E. Cranmer, Appellees.

No. 1 CA-CIV 800.

Court of Appeals of Arizona, Division 1, Department B.

Nov. 10, 1969.

Rehearing Denied Dec. 9, 1969.

Review Denied Jan. 6, 1970.

Green & Berman, by Norman E. Green and David M. Berman, Phoenix, for appellant.

Browder, Gillenwater & Daughton, by Donald Daughton, Phoenix, for appellees.

JACOBSON, Judge.

In this action dealing with the elusive torts arising out of mental suffering, appellant-plaintiff Arthetta M. Cluff seeks damages for an alleged intentional infliction of mental distress and invasion of privacy against appellees-defendants, Farmers Insurance Exchange dba Farmers Insurance Group and Jerry E. Cranmer.

The Superior Court of Maricopa County, The Honorable Howard F. Thompson, presiding, granted defendant's motion to dismiss for failure to state a claim as to both counts of plaintiff's amended complaint. We are called upon to determine whether or not plaintiff's amended complaint does in fact state a claim for intentional infliction of mental distress or for invasion of privacy.

Count I of this complaint, seeking damages for intentional infliction of mental distress, alleges the following facts.

Some three months after the death of her minor son plaintiff retained an attorney to represent her in a wrongful death action. The attorney notified the defendant insurance carrier of the retainer and directed that all further contact relating to the death of plaintiff's son be made through the attorney. During the three months prior to the retainer of the attorney, plaintiff had been contacted 'on a number of occasions by (defendant Cranmer) * * * relative to a settlement * * * for the wrongful death of plaintiff's son' and that on these occasions defendant Cranmer had 'threatened and cajoled plaintiff (to accept) a certain settlement.' The threatening and cajoling consisted of statements to the effect that if plaintiff hired an attorney she would probably not recover damages for the death of her son because the laws of New Mexico (where the death occurred) would prohibit recovery. The threats and cajoling of defendant Cranmer were 'false and maliciously made.' Shortly after the attorney had been retained, defendant Cranmer contacted the plaintiff at which time he told her that he had received a letter from her attorney; that 'he hated the fact' that she had hired a lawyer 'because he didn't think that her lawyer would win the case'; that the most plaintiff would get was what the insurance company was offering whereas she might get nothing at all by taking the matter into court; and that if she changed her mind about being represented by counsel to have the attorney send them a letter to that effect after which the insurance company would get the money to her 'because she probably needed it.' This conduct of the defendant was done 'wilfully, intentionally, and maliciously * * * to inflict mental suffering and emotional distress upon the plaintiff so as to cause her to settle her claim without the benefit of counsel for the benefit and advantage of defendants.' The conduct of defendant 'caused (plaintiff) great mental anguish upset, and harm' and was done 'for the purpose of causing the plaintiff distress or with the knowledge on the part of the defendants that severe emotional distress would be substantially certain to be produced by the defendant's conduct.'

Count II of plaintiff's Complaint restated the allegations of Count I above, and alleged further that the acts of the defendant 'maliciously and unlawfully violated plaintiff's right of privacy' in violation of Article II, Sec. 8 of the Arizona State Constitution, A.R.S. Count II also alleged that these acts 'amounted to intentional, wilful, malicious and wanton intrusion upon the plaintiff's seculsion (sic) and solitude, and further amounted to intrusions upon the plaintiff's private affairs.'

On reviewing the granting of a motion to dismiss, this court must assume the facts stated in the complaint to be true, but this is true only as to such facts as are well pleaded and does not apply to conclusions of law, or unreasonable inferences drawn by the pleader from the facts alleged. Davis v. State, 1 Ariz.App. 264, 401 P.2d 749 (1965); Dockery v. Central Arizona Light & Power Co., 45 Ariz. 434, 45 P.2d 656 (1935); Laing v. Laubach, 233 Cal.App.2d 511, 43 Cal.Rptr. 537 (1965).

Arizona recognizes the tort of intentional infliction of emotional distress. Savage v. Boies, 77 Ariz. 355, 272 P.2d 349 (1954). However, it is generally held that the claim cannot arise out of conduct which merely hurts one's feelings. Wallace v. Shoreham Hotel Corp., 49 A.2d 81 (D.C.Mun.App.1946). As is pointed out in Restatement (Second) Torts Section 46, Comment (d) (1965);

'* * * Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go 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 facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim 'Outrageous!"

Even if the defendant's acts are done 'wilfully, intentionally and maliciously' with 'intent to inflict mental suffering and emotional distress,' it becomes the duty of the court in the first instance, as society's conscience, to determine whether the acts complained of can be considered as extreme and outrageous conduct in order to state a claim for relief. Restatement (Second) Torts Sec. 46, Comment (h) (1965). In our opinion, the act of an insurance adjuster in simply contacting a person to whom his company may be liable in order to obtain a settlement of that claim, even after retention of counsel, does not In and of itself, amount to extreme or outrageous conduct. Although several insurance cases have held an insurance company liable because of conduct of their adjuster in attempting to settle claims, in all such cases not only was contact made by the adjuster, but other aggravated acts followed. For example, in Interstate Life & Accident Co. v. Brewer, 56 Ga.App. 599, 193 S.E. 458 (1937) the insurance adjuster contacted the plaintiff while she was sick in bed recovering from a heart attack. The adjuster upbraided her as to the amount of other health policies she had; advised her that his company was cutting her payments to $2.50 a week, and when plaintiff objected to this, the adjuster threw a handful of coins in her face. When the plaintiff started screaming for her niece to contact her doctor, the adjuster yelled at her in a loud and angry voice 'you don't need a doctor, you ought to die!' Such aggravated conduct is not present here.

The course of human conduct even in our 'civilized' community has amply shown that self...