Continental Cas. Co. v. Mirabile

• Decision Date: 07 September 1982
• Docket Number: No. 1523,1523
• Citation: 449 A.2d 1176,52 Md.App. 387
• Parties: CONTINENTAL CASUALTY CO., et al. v. Russell R. MIRABILE.
• Court: Court of Special Appeals of Maryland

Page 387

52 Md.App. 387

449 A.2d 1176

CONTINENTAL CASUALTY CO., et al. v. Russell R. MIRABILE.

No. 1523.

Court of Special Appeals of Maryland.

Sept. 7, 1982.

Thomas S. Martin, Baltimore, with whom were John Henry Lewin, Jr., Kathleen M. Gallogly, and Venable, Baetjer & Howard, Baltimore, on the brief, for appellants.

C. Christopher Brown, Baltimore, with whom was Abraham Paul Korotki, Towson, on the brief, for appellee.

Argued before MORTON and MOYLAN, JJ., and CLAYTON C. CARTER, Specially Assigned Judge.

MORTON, Judge.

This appeal arises from what is, at the least, a series of petty humiliations unfortunately inflicted upon an extremely sensitive young man by his coworkers. His response, after continued abuse, was to file in the Circuit Court for Baltimore County two tort actions against his employer and several of his supervisors alleging negligence, defamation, assault, battery, intentional infliction of emotional distress and conspiracy to interfere with contractual relations. The trial judge (Haile, J.) directed verdicts in favor of defendants as to certain counts, joined separate counts, and reformulated those that remained. When the smoke cleared, the jury entered verdicts in the amount of $261,000 against several of the defendants on the only two counts left for their consideration--deceit and assault and battery.

Essentially, the appellants argue on appeal that the claims are barred by the Workmen's Compensation Act and that even if they are not, the deceit award must be reversed and the assault and battery award must be reversed or reduced. The appellee asserts in his cross-appeal that this Court should remand for a retrial on those counts taken from the jury's province.

The testimony at trial disclosed that Russell Mirabile, appellee and cross-appellant, had worked nearly five years as a trainee and then a claims representative at the Towson branch of Continental Casualty Company (hereinafter Continental) investigating claims, preparing reports and maintaining files. Phillip E. Klingler was the Towson office manager who directly supervised Mr. Mirabile's work. Klingler, in turn, reported to William F. Sheehan, the claims manager of the Silver Spring regional office, and ultimately to Ronald Lewis, the general branch manager of that office.

It was Continental's policy to conduct a uniform annual performance evaluation of all employees, rating ten areas on a scale from 1 to 10, a 5 or 6 being "competent" and a 3 or 4 reflecting a need for improvement. Klingler, as direct supervisor of Mirabile, was responsible for rating Mirabile's performance on a standardized evaluation form and then reviewing the rating with Mirabile, who was to sign the form as an indication that although there might not be agreement, he had been advised of his rated performance status. The completed form was then to be submitted to Mr. Sheehan for final review and acceptance. Following these periodic reviews, a "competent" employee could expect a salary increase. This procedure, as enumerated in the "Performance Review Program" promulgated by Continental, was fully carried out as to Mirabile's performance report for the review period August 1, 1975, to June 15, 1976, at which time Klingler's overall rating was "needs improvement."

Mirabile's performance review covering the period June 15, 1976, to July 8, 1977, however, was returned to Klingler by Sheehan with a memorandum dated July 18, 1977, stating that after a review of Klingler's comments and Mirabile's light caseload, Sheehan was of the opinion that Mirabile's overall rating was properly a "needs improvement" rather than "competent" as appraised by Klingler. It also appears that Mirabile's performance, as appraised by Klingler, averaged an overall 3.9, just within the "needs improvement" range, although this was not noted by Sheehan. Sheehan directed Klingler "to review this with Russ Mirabile ...."

Rather than resubmit a new or corrected form to Mirabile for his review and signature, Klingler altered the rejected evaluation, making additional comments and changing the overall status to "needs improvement." Sheehan approved the amended evaluation and forwarded it to Lewis, who presumably knew nothing of the alterations, with a recommendation for a five percent pay increase. The recommendation was rejected.

While it seems that Mirabile was not explicitly told that his review was being resubmitted on a "needs improvement" basis, Klingler did advise Mirabile in a memorandum dated August 22, 1977, that:

"[T]he files were discussed with the deficiencies that were anything but acceptable. The files that were reviewed showed a complete lack of proper investigation, prompt contact, and reporting to the file. This was office-wise and showed a need for improvement on all concerned.

At the time of your recent salary discussion on July 11, 1977, we discussed your areas for needs of improvement. I indicated to you at that time that even though you could answer on the file, the file itself was not responsive to the above criteria, that is prompt contact, proper investigation, and prompt reporting. Also, Russ, I discussed the use of the dictaphone in conveying your investigation in the file, inasmuch as there was some difficulty at times in reading your memos.

Russ, in order that we can be of assistance to you in your career improvement with CNA, I am outlining our plans for improving your performance, which we have already begun some three weeks ago."

Mirabile did not learn of the revision until September or October when he realized that an expected pay raise had not been effected. He demanded that his initial "competent" rating be reinstated. When his supervisors refused, he retained in March, 1978, a lawyer who filed on his behalf the initial action, case No. 97761, against Continental, Sheehan, Klingler and Lewis. The four counts charged, respectively, Klingler and Continental with what has been described by the plaintiff as "breach of duty and responsibility," but construed by the judge as fraud or deceit; Lewis, Sheehan and Continental with the same tort; Klingler and Continental with defamation; and all four defendants with conspiracy to interfere with contractual relations.

Although Mirabile's performance became more acceptable as reflected in the "competent" ratings for the periods from July 1 to October 1, 1977; July 7 to October 7, 1977; and July 8, 1977, to April 28, 1978, he contends that a pattern of workplace harassment was at this point initiated.

Mirabile testified that his desk was first moved against a blank wall; then he was assigned by Sheehan to various uncomfortable, inconvenient desks--a desk near a noisy copying machine, a sticky desk that was used as a lunch table, the "wrong side" of another adjuster's desk. With each move his supervisors would "smirk" and "laugh." Mirabile also noticed that he was being sent on distant assignments, files were not being delivered to him from the file room, completed work was disappearing from his case files, and his mail was not always delivered. He further testified that Klingler would often "direct his hum at me ... hum, hum, hum, hum," put his face rather close, raise his eyebrows, chuckle and walk away. Sheehan called him a "hyena" and on another occasion a "jackass" in the presence of coworkers.

There was also evidence that all employees had to share desks due to cramped conditions; that Mirabile himself would occasionally make bird calls, sing out loud, and make loud sarcastic remarks about the company; and an expert witness testified that Mirabile showed signs of "paranoid thinking."

The culminating incident which prompted Mirabile to stop working and formed the basis of his assault and battery claim occurred on June 27, 1979, after more than a year of such "harassment." The most violent version of the facts follows. On that day Sheehan, having repeatedly asked Mirabile to sit at a desk by himself rather than with Ed Hrica, whose desk he had previously been told to share, became annoyed when he saw Mirabile sitting at Hrica's desk in the morning. He called Mirabile into his office, told him to stay away from Hrica, and at one point "swung his hand into" Mirabile. That afternoon when Sheehan saw Mirabile standing at Hrica's desk making a phone call, Sheehan grabbed the receiver and slammed it down; stood chin to chin with Mirabile, waving a finger in his face and screaming that he had 15 ... 10 seconds to get out of the area; rushed at Mirabile and started tapping his nose with his finger; repeatedly pushed Mirabile; grabbed Mirabile's arm and pulled him back, saying he was going to fire him. Mirabile, crying "worse than a baby," was so upset and "shocked" that it took him one-half hour to find his car in the parking lot.

He sought comfort of his priest that night and that of a psychiatrist the next day, whom he has continued to see twice a week. Having suffered what three experts agreed was a disabling psychological injury, ¹ Mirabile did not return to work and a year later he was terminated. A second tort action, case No. 102985, alleging assault, battery and intentional infliction of emotional distress against Sheehan (Counts 1, 3 and 5) and Continental (Counts 2, 4 and 6) was filed. The last count was eliminated as duplicative by defendants' preliminary objection and the two actions were consolidated at trial.

The plaintiff moved for a directed verdict as to all counts and the defendants did likewise as to all but the assault and battery counts, stating that whether the facts supported an actionable assault and battery was a question for the jury. While it is plain from the record that the trial judge directed verdicts for defendants on the defamation and conspiracy counts, what else was done remains unclear. The judge "denie[d] the motion of defendants Phillip E. Klingler and defendant Continental Casualty for a directed verdict under the second count" of 97761 and "grant[ed] the motion...