Dominguez v. Equitable Life Assur. Soc. of U.S.

• Decision Date: 30 August 1983
• Docket Number: No. 81-1064,81-1064
• Citation: 438 So.2d 58
• Parties: Antonio DOMINGUEZ, Appellant, v. EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, a foreign corporation, Crawford and Company, a foreign corporation, and Millie Dirube, Appellees.
• Court: Florida District Court of Appeals

Page 58

438 So.2d 58

Antonio DOMINGUEZ, Appellant, v. EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, a

foreign corporation, Crawford and Company, a

foreign corporation, and Millie Dirube, Appellees.

No. 81-1064.

District Court of Appeal of Florida,

Third District.

Aug. 30, 1983.

Rehearing Denied Oct. 19, 1983.

Magill, Reid, Kuvin & Lewis and R. Fred Lewis, Bernard P. Goldfarb, Miami, for appellant.

George, Hartz & McNary, Miami, Amy Shield Levine, Boca Raton, for appellees.

Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

This is an appeal from an order which, inter alia, dismissed with prejudice one count of the appellant's complaint which sought damages for severe emotional distress alleged to have been caused by outrageous conduct unconnected to any other identifiable tort. We are called upon to decide whether we recognize such a cause of action and, if so, whether the appellant's allegations, taken as true at this stage of the proceedings, bring him within the cause of action.

A cause of action for "intentional infliction of severe mental or emotional distress," more appropriately called "outrageous conduct causing severe emotional distress," ¹ essentially involves the deliberate or reckless infliction of mental suffering on another, even if unconnected to any other actionable wrong. Restatement (Second) of Torts § 46 (1965). The elements of this cause of action are (1) the wrongdoer's conduct was intentional or reckless, that is, he intended his behavior when he knew or should have known that emotional distress would likely result; (2) the conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community; (3) the conduct caused the emotional distress; and (4) the emotional distress was severe.

Although the Florida Supreme Court has not yet definitively recognized the existence of this cause of action, it has not, on the other hand, definitively precluded courts of this state from doing so. ² Ford Motor Credit Co. v. Sheehan, 373 So.2d 956, 960 (Fla. 1st DCA 1979). ³ Thus, unimpeded by the dictates of Hoffman v. Jones, 280 So.2d 431 (Fla.1973), the district courts of appeal have forged ahead, and the First, Fourth and Fifth Districts, joining the majority view in this country, have concluded that the cause of action exists. See Kirkpatrick v. Zitz, 401 So.2d 850 (Fla. 1st DCA 1981) (cause of action allowed); Lay v. Roux Laboratories, Inc., 379 So.2d 451 (Fla. 1st DCA 1980) (same); Ford Motor Credit Co. v. Sheehan, 373 So.2d at 960 (same); Dowling v. Blue Cross of Florida, Inc., 338 So.2d 88 (Fla. 1st DCA 1976) (same); Metropolitan Life Insurance Co. v. McCarson, 429 So.2d 1287 (Fla. 4th DCA 1983) (cause of action allowed); Boyles v. Mid-Florida Television Corp., 431 So.2d 627 (Fla. 5th DCA 1983) (cause of action recognized, but not properly pleaded); Habelow v. Travelers Insurance Co., 389 So.2d 218 (Fla. 5th DCA 1980) (cause of action recognized, but not applicable where outrageous conduct directed at another); Food Fair, Inc. v. Anderson, 382 So.2d 150 (Fla. 5th DCA 1980) (cause of action recognized, but conduct not outrageous). The Second District has concluded otherwise. See Gmuer v. Garner, 426 So.2d 972 (Fla. 2d DCA 1982). ⁴

We are of the opinion that the majority view is the correct one and conclude that we are not only free to adopt it, but are bound to do so by our own precedent. We recognize that in Gellert v. Eastern Air Lines, Inc., 370 So.2d 802 (Fla. 3d DCA 1979), cert. denied, 381 So.2d 766 (Fla.1980), and Sacco v. Eagle Finance Corp. of North Miami Beach, 234 So.2d 406 (Fla. 3d DCA 1970), this court stated that a cause of action for emotional distress based on outrageous conduct will lie only where it is coupled with other recognized tortious conduct. It appears, however, that in Sacco, we completely overlooked our earlier contrary precedent of Korbin v. Berlin, 177 So.2d 551 (Fla. 3d DCA 1965), cert. dismissed, 183 So.2d 835 (Fla.1966), and in Gellert, although paying lip service to Korbin, we incorrectly categorized Korbin as being a case where the outrageous conduct was coupled with an independent tort. Korbin, however, in which the court held that a child's cause of action for emotional distress lay against a defendant who told the child of her mother's alleged adultery, is not, as was pointed out in Ford Motor Credit Co. v. Sheehan, susceptible of the reading given it in Gellert:

"Gellert suggests that Korbin did not permit an independent action for severe emotional distress since the action for emotional damages was connected with the slander of the child's mother. We find this analysis unpersuasive for two reasons: First, no cause of action was brought for slander, and second, the slander, if proved, would have resulted in a tortious act against the mother, not the child. The two causes of action must be considered separate and personal to two different people." 373 So.2d at 959 n. 3.

Therefore, in our view, Korbin, never overruled, receded from, discredited or adequately distinguished, is clear precedent for our holding today that a cause of action for emotional distress brought about by outrageous conduct lies notwithstanding the absence of another tort. Indeed, Korbin is the only authority in this court which is undiluted by an alternative holding that the conduct involved was not outrageous. Neither Gellert nor Sacco, as the courts there recognized, involved conduct which would qualify as outrageous, and thus, these cases could have been decided on that ground without reaching the question of the existence vel non of the cause of action. ⁵ See Gellert v. Eastern Air Lines, Inc., 370 So.2d at 808 (Schwartz, J., specially concurring).

We turn now to the question of whether the allegations of Dominguez's complaint bring him within this cause of action.

The complaint alleges that in 1973, Equitable issued Dominguez a disability income policy of insurance which, in pertinent part, provided for $500 per month income for accidental total disability for the insured's lifetime. Shortly after the policy issued, Dominguez was involved in an automobile accident which "caused severe injuries to his body and extremities, including both eyes being knocked out of their sockets, brain damage, multiple large scars, psychiatric problems, periodic incontinence, paralysis of nerve in eye and other physical and mental problems, and mental injuries as well, which resulted in his total disability." Equitable paid Dominguez the disability income through August 1979 and then stopped making payments.

The heart of the complaint comes next:

"16. On or about April 21, 1980, the Defendant, EQUITABLE, sent an agent to the home of the Plaintiff in Miami, Florida. Said agent was working either directly for the Defendant, EQUITABLE, or indirectly for the Defendant by working for Defendant CRAWFORD & COMPANY, which was hired by the Defendant EQUITABLE to work on this case. Said agent was Millie Dirube, who, at all times relevant hereto was acting for either or both Defendants, in the course and scope of her agency and employment. Said Millie Dirube falsely represented to Plaintiff that she had received a letter from the eye doctor saying that his eye(s) were OK now and that Plaintiff was no longer disabled and falsely represented to Plaintiff that he was no longer totally disabled, that he was not longer covered under the policy, that the policy was no longer in force, that he had to sign a paper agreeing that no further payments were due under the policy, that it no longer covered him, that he was no longer entitled to receive benefits under the policy and that he was giving up the policy voluntarily. At the time said Millie Dirube made said misrepresentation she knew them to be false and they were in fact false and she made them with the intention and expectation and intention that Plaintiff be deceived and defrauded thereby and that the [sic] sign said paper and surrender the subject policy. Defendants well knew that Plaintiff was suffering both physical and mental total disability and was entitled to benefits under the policy and that the representations of Millie Dirube were false. The foregoing acts were all in violation of their fiduciary relationship and duty of good faith and in an effort to use their superior knowledge skill and position to take advantage of this debilitated Plaintiff. A relative of Plaintiff overheard and intervened at the last minute and prevented Plaintiff from signing the paper and surrendering the policy.

....

"21. Defendant, EQUITABLE'S, acts and omissions set forth in this Complaint were done intentionally in order to inflict emotional distress upon the Plaintiff and/or were done in reckless disregard of the probability of causing emotional distress, and said acts and omissions did in fact cause severe and extreme emotional distress to the Plaintiff."

In our view, these allegations state a cause of action ⁶ and fall well within comments e and f to Section 46 of the Restatement, which provide:

"e. The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests....

"f. The extreme and outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct may be heartless, flagrant and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know ...."

The complaint alleges the defendants to be not only in a position to affect the plaintiff's interests, but actually having asserted their power by cutting off the plaintiff's disability payments without justification. It alleges...