Ellis v. Safety Ins. Co.

• Citation: 41 Mass.App.Ct. 630,672 N.E.2d 979
• Decision Date: 18 November 1996
• Docket Number: No. 94-P-1879,94-P-1879
• Parties: Dorothy ELLIS & others 1 v. SAFETY INSURANCE CO. & another. 2
• Court: Appeals Court of Massachusetts

Page 979

672 N.E.2d 979

41 Mass.App.Ct. 630

Dorothy ELLIS & others ¹ v. SAFETY INSURANCE CO. & another. ²

No. 94-P-1879.

Appeals Court of Massachusetts,

Suffolk.

Argued Feb. 21, 1996.

Decided Nov. 18, 1996.

Damon Scarano, Boston, for plaintiffs.

Laurie J. Condos, Boston, for defendants.

Before PORADA, LAURENCE and LENK, JJ. ³

LENK, Justice.

Two of the plaintiffs are family members: Dorothy Ellis and Hayde Little are daughter and mother. The third plaintiff, Anthony Goodnews Eneonye (Goodnews), and Little are friends and housemates. Ellis, Little and Goodnews appeal from the entry of summary judgment against them on all six counts of their complaint, which essentially arises out of Ellis's ownership of a Jaguar automobile insured by defendant Safety Insurance Co. (Safety). Safety refused to settle Ellis's claim after she reported her automobile stolen. The plaintiffs allege that, in the process of investigating Ellis's claim, Safety's investigator, defendant Frank Donahue, committed racially motivated acts of harassment against them. Safety and Donahue deny that any such acts occurred and maintain that Safety's refusal to pay Ellis was properly based upon Ellis's failure to fulfill a condition precedent to her recovery under the insurance policy.

The plaintiffs brought this complaint against Safety and Donahue in six counts. Ellis alleged a breach of contract by Safety in Count I for failing to pay her claim. In Count II, Ellis, Goodnews and Little alleged that Safety acted unfairly and deceptively, in violation of G.L. c. 93A, in the course of investigating Ellis's insurance claim. All three plaintiffs alleged that the two defendants negligently or intentionally inflicted emotional distress upon them (Count III), slandered or libelled them (Count IV), invaded their privacy in violation of G.L. c. 214, § 1b (Count V), and violated their civil rights contrary to G.L. c. 93, § 102 (Count VI).

The defendants moved for summary judgment on all counts pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974), supported by the affidavits of Donahue and several of Safety's other agents, as well as unanswered requests for admissions, Mass.R.Civ.P. 36(a), 365 Mass. 795 (1974), propounded upon the plaintiffs. In opposition, the plaintiffs offered their own affidavits, as well as the affidavit of a former Safety manager, Philip Cohen. The Superior Court judge originally granted the motion for summary judgment only as to Counts II through VI, but after the defendants' motion for reconsideration, granted summary judgment as to Count I as well. The plaintiffs appeal. For the reasons discussed, we affirm in part and reverse in part.

Summary judgment shall be granted where the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Community Natl. Bank v. Dawes, 369 Mass. 550, 553, 340 N.E.2d 877 (1976). Mass.R.Civ.P. 56(c). The moving party bears the initial burden of affirmatively demonstrating the absence of a genuine issue of material fact and of entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989). All reasonable inferences drawn from the material accompanying a motion for summary judgment "must be viewed in the light most favorable to the party opposing the motion." Attorney Gen. v. Bailey, 386 Mass. 367, 371, 436 N.E.2d 139, cert. denied, 459 U.S. 970, 103 S.Ct. 301, 74 L.Ed.2d 282 (1982), quoting from Hub Assocs., Inc. v. Goode, 357 Mass. 449, 451, 258 N.E.2d 733 (1970).

Undisputed facts. Safety Insurance Company issued Ellis an automobile insurance policy, which covered her 1985 Jaguar XJ6 from August 24, 1989, to August 24, 1990. On September 26, 1989, Ellis reported to Safety that the Jaguar had been stolen. Safety assigned Ellis's claim to its investigator, Donahue.

Ellis's insurance policy with Safety contained a clause which stated that, in the event of a claim, "[w]e may also require you to submit to an examination under oath." Safety scheduled Ellis for an examination under oath on April 23, 1990, but she did not attend. She also failed to appear for two rescheduled examinations. On August 6, 1990, Safety notified Ellis through counsel that it assumed she no longer sought payment on her claim, as she neither submitted to the examination under oath nor supported her claim with other documentation.

In January, 1991, Ellis notified Safety that her Jaguar had been found. ⁴

Facts in dispute. The defendants assert that no acts of racial impropriety occurred during the investigation of Ellis's claim and insist that Safety ultimately refused to settle Ellis's claim because she failed to submit to the examination under oath. In his affidavit, Donahue maintains, "At no time during my investigation of the claim of Dorothy Ellis did I harass or intimidate any of the plaintiffs in this action." The plaintiffs respond with their recitation of events occurring during Donahue's investigation. Philip Cohen, Donahue's former supervisor, states in his affidavit that he observed Donahue harass and intimidate minority insureds for a period of one and one-half years. Cohen attests that he "had many discussions with Frank Donahue concerning his hostile behavior and treatment of insureds, especially minorities whom Donahue admitted to me he had a dislike for." One conversation between Cohen and Donahue involved the harassment and intimidation of Dorothy Ellis. Cohen reiterated his concerns about Donahue's behavior in a written memorandum to Safety's vice-president and assistant vice-president. Cohen discloses that Donahue called Ellis a phony and told him that Ellis had submitted a fraudulent claim. Goodnews states in his affidavit that Donahue followed him around in a light blue Chevrolet automobile. ⁵ In her affidavit, Little states that "Donahue called me up numerous times at home and work, making the statement 'How can you people (blacks) afford this type of car.' " She also asserts that Donahue followed her "extensively" in the same light blue Chevrolet and waited "in front of my home on numerous occasions." Ellis similarly attests that Donahue followed her and her husband in the light blue Chevrolet, that Donahue had asked her in a telephone conversation, "How can you black people afford this type of expensive car?" and that Donahue had intimidated her and her husband.

Negligent and intentional infliction of emotional distress. The three plaintiffs allege that the defendants both negligently and intentionally inflicted emotional distress upon them. In order to survive a motion for summary judgment, a claim of negligent infliction of emotional distress requires, inter alia, that the plaintiffs "corroborate their mental distress claims with enough objective evidence of harm to convince a judge that their claims present a sufficient likelihood of genuineness to go to trial." Sullivan v. Boston Gas Co., 414 Mass. 129, 137-138, 605 N.E.2d 805 (1993). Payton v. Abbott Labs, 386 Mass. 540, 555, 437 N.E.2d 171 (1982). The plaintiffs in the instant case have not satisfied this burden and their claim, thus, fails.

Similarly, in order to recover for the intentional infliction of emotional distress, the plaintiffs must allege in their complaint that they have suffered severe emotional distress caused by the defendant's intentional, outrageous conduct. Agis v. Howard Johnson Co., 371 Mass. 140, 145, 355 N.E.2d 315 (1976). As the plaintiffs have not so alleged, their claim for intentional infliction of emotional distress also fails. The allowance of summary judgment for defendants on Count III was, therefore, proper.

Libel and slander. The three plaintiffs allege that on two occasions the defendants committed the "tort of slander, libel" by expressing to third parties false statements that the plaintiffs had committed insurance fraud. Ellis and Little state in their affidavits that Donahue "went to [Enoch's] garage and told them not to repair the car, this was fraud." Cohen, Safety's former employee, states in his affidavit that "Frank Donahue informed me on several occasions Dorothy Ellis was a phony and submitted a fraudulent claim." ⁶ As the statements are alleged to have been spoken rather than written, they are classified as slander only. See Restatement (Second) of Torts § 568 (1977). The elements of a slander claim, in relevant part, are the publication of a false and defamatory statement by spoken words of and concerning the plaintiff. Id. at §§ 558, 568.

The court must decide as an initial matter whether each of the statements at issue is reasonably susceptible of a defamatory meaning. Foley v. Lowell Sun Pub. Co., 404 Mass. 9, 11, 533 N.E.2d 196 (1989). Submitting a fraudulent insurance claim is a crime pursuant to G.L. c. 266, § 111A. ⁷ Imputation of a crime is defamatory per se. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 853, 330 N.E.2d 161 (1975). Draghetti v. Chmielewski, 416 Mass. 808, 812, 626 N.E.2d 862 (1994). Donahue's accusations of fraud, imputing criminal conduct, are therefore capable of a defamatory meaning.

In order to be actionable, the statements must have been published, i.e., communicated to at least a single individual other than the person defamed. Brauer v. Globe Newspaper Co., 351 Mass. 53, 56, 217 N.E.2d 736 (1966). Restatement (Second) of Torts § 577. As to the first statement, Little and Ellis allege that Donahue told "them" at "Enoch's Garage" not to repair the car because the insurance claim was fraudulent, yet they provide no factual basis for the allegation of publication. The affidavits are silent as to whether the plaintiffs were at the garage, who may have heard Donahue's alleged statement or about when or in what circumstances it was uttered.

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