Debolt v. Mutual of Omaha

• Decision Date: 06 January 1978
• Docket Number: No. 77-312,77-312
• Citation: 371 N.E.2d 373,56 Ill.App.3d 111,13 Ill.Dec. 656
• Parties: , 13 Ill.Dec. 656 James DEBOLT, Plaintiff-Appellant, v. MUTUAL OF OMAHA, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 373

371 N.E.2d 373

56 Ill.App.3d 111, 13 Ill.Dec. 656

James DEBOLT, Plaintiff-Appellant, v. MUTUAL OF OMAHA, Defendant-Appellee.

No. 77-312.

Appellate Court of Illinois, Third District.

Jan. 6, 1978.

John A. Slevin and Gregg N. Grimsley, Vonachen, Cation, Lawless, Trager & Slevin, Peoria, for plaintiff-appellant.

Duncan B. Cooper, III, William J. Becker, Peoria, and Gary D. Nelson, Normal, Heyl, Royster, Voelker & Allen, Peoria, for defendant-appellee.

SCOTT, Justice.

This is an appeal from an order of the circuit court of Peoria County which dismissed certain counts of the plaintiff James Debolt's complaint against the defendant Mutual of Omaha, an insurer, and from which the plaintiff sought punitive damages in the sum of $5,000,000 for breach of a duty of good faith and fair dealing and compensatory damages in the sum of $250,000 for intentional infliction of emotional distress.

The plaintiff Debolt on May 20, 1970, purchased a disability income policy from the defendant insurer, Mutual of Omaha. At the time of this purchase the plaintiff was self-employed, 49 years of age, and it was alleged that he believed himself to be in good health. In December of 1973 he received a severe injury to his back and as defined by his policy of insurance with the defendant became totally disabled. The plaintiff alleged in his complaint that the defendant, even though cognizant of his physical incapacity and financial problems, nevertheless engaged in a course of conduct which should be classified as malevolent or grossly oppressive. Such conduct consisted of the defendant's delayed payments of disability income to the plaintiff and the ultimate cessation of any payments to him which forced him to employ counsel and to file a lawsuit. The plaintiff further alleged that the defendant instituted a policy of shuffling plaintiff's claim file between its Illinois office and its home office in Nebraska which effectively confused and frustrated the plaintiff in his efforts to secure his disability benefits. Further allegations of the plaintiff were to the effect that agents of the defendant instilled in him the thought that his life was in jeopardy and when the disability benefits were substantially in arrears the defendant offered to repurchase the contract of insurance at an unconscionably low figure.

The above allegations were contained in Counts II and III of the plaintiff's complaint. It was in Count II that punitive damages in the amount of $5,000,000 was sought for a breach of duty of good faith and fair dealing by the defendant to its insured, the plaintiff. Count III sought compensatory damages in the amount of $250,000 for the intentional infliction of emotional distress upon the plaintiff by the defendant. The trial court granted defendant's motion to dismiss Counts II and III with prejudice. Count I, which sought contract damages for a breach of the disability insurance contract, was voluntarily dismissed by the plaintiff and this appeal ensued.

We first direct our attention to the issue as to whether the trial court committed error in dismissing Count III of the plaintiff's complaint, which sought damages for the alleged intentional infliction of emotional distress.

The tort of intentional infliction of severe emotional distress was recognized in our state in 1961. (Knierim v. Izzo (1961), 22 Ill.2d 73, 174 N.E.2d 157.) A tort action for intentional infliction of severe emotional distress may be maintained even though unaccompanied by physical injury or the threat of physical injury. Pierce v. Board of Education of the City of Chicago (1976), 44 Ill.App.3d 324, 3 Ill.Dec. 67, 358 N.E.2d 67.

The elements of this comparatively new tort have been firmly established. Referring to the Restatement (Second) Torts (1965), Sec. 46, we find the following:

"Section 46: Outrageous Conduct Causing Severe Emotional Distress.

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional stress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm."

The elements of the tort for the intentional infliction of emotional distress are (1) extreme and outrageous conduct, (2) intent by the defendant to cause, or a reckless disregard of the probability of causing emotional distress, (3) severe or extreme emotional distress suffered by the plaintiff, and (4) an actual and proximate causation of emotional distress by the defendant's outrageous conduct.

All of the above stated elements must be present to support the tort and hence we are confronted with determining if they are present in the instant case. We are well aware of the fundamental rule that a motion to dismiss such as we had in the instant case admits all facts well pleaded together with all reasonable inferences which could be drawn from those facts. (Pierce v. Board of Education of City of Chicago (1976), 44 Ill.App.3d 324, 3 Ill.Dec. 67, 358 N.E.2d 67.) This general rule of law has been tempered, however, in that it is also well established that a motion to dismiss or strike a pleading admits facts well pleaded, but not conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest. (Pierce v. Carpentier (1960), 20 Ill.2d 526, 169 N.E.2d 747.) In examining the complaint of the plaintiff in the instant case we find that it is fraught with conclusions of fact unsupported by allegations of specific facts, i. e., that defendant instilled in plaintiff a fear for his life and that defendant instituted a policy designed to coerce the plaintiff into surrendering his policy.

The plaintiff has failed to allege specific facts which could be interpreted as outrageous conduct on the part of the defendant or which would substantiate the plaintiff's allegation that he suffered severe or extreme emotional distress.

The specific facts pleaded by the plaintiff are that the defendant ultimately denied liability under the disability policy, that it referred the plaintiff's claim from its Illinois office to its Nebraska office, and that it offered to settle a disputed claim with the plaintiff in return for a surrender of the policy. We do not deem such conduct on the part of the defendant to be so oppressive or outrageous as to support the tort of infliction of severe emotional distress. In the case of Public Finance Corporation v. Davis (1977), 66 Ill.2d 85, 4 Ill.Dec. 652, 360 N.E.2d 765, the plaintiff alleged with detailed specificity certain acts of the defendant that were far more abusive and intolerable than those alleged in the instant case, yet our supreme court found that they failed to state a cause of action for the tort of intentional infliction of severe emotional distress. We conclude that as to Count III the trial court properly granted the defendant's motion to dismiss the same.

We next direct our attention to the issue as to whether the trial court committed error in dismissing Count II of the plaintiff's complaint which sought damages in the sum of $5,000,000 for the breach of duty of good faith and fair dealing by the defendant to the plaintiff, its insured.

We are cognizant of the rapid and continuing developments in all jurisdictions which have in the past quarter of a century expanded the field of torts. We will not itemize these many expansions since they are well documented in A.T.L.A. Law Reporter, Volume 20, Number 9 (November 1977). Until recently in our state a breach of a contract did not give rise to an action in which punitive damages were recoverable unless in addition to the breach there was an independent, wilful tort. (Wallace v. Prudential Insurance Co. (1973), 12 Ill.App.3d 623, 299 N.E.2d 344; Ash v. Barrett (1971), 1 Ill.App.3d 414, 274 N.E.2d 149; Sears v. Weissman (1972), 6 Ill.App.3d 827, 286 N.E.2d 777.) An exception to the rule that punitive damages are not recoverable in contract actions is to be found in the case of Ledingham v. Blue Cross Plan for Hospital Care (1975), 29 Ill.App.3d 339, 330 N.E.2d 540. In Ledingham the appellate court from the 5th Appellate Court Dist. held that a breach of contract itself may constitute an unusual case where an independent wilful tort will be found and that punitive damages may be recovered.

We have carefully examined the case of Ledingham and after such examination do not feel constrained to accept the result reached as being precedential in the instant case.

We reach this conclusion for several reasons. First we note that in Ledingham the reviewing court relied on the case of Nevin v. Pullman Palace Car Co. (1883), 106 Ill. 222, 46 Am.Rep. 688. In Nevin the plaintiff, his wife and his niece were refused the use of a berth in a sleeping car without justification. When the plaintiff left the car to get a breath of fresh air, the door was slammed on him, and his baggage and family were then removed to the coach where they had to spend the night. Plaintiff sued in tort and the railroad argued that the plaintiff was limited in his cause of action to a breach of contract of carriage and recovery...