Hall v. Citizens Ins. Co. of America
| Decision Date | 22 May 1985 |
| Docket Number | 75792,Docket Nos. 75597 |
| Citation | 141 Mich.App. 676,368 N.W.2d 250 |
| Parties | Patricia HALL, Plaintiff-Appellee, v. CITIZENS INSURANCE COMPANY OF AMERICA, a foreign corporation, Conklin-Palmer-Blanchard Insurance Agency, a Michigan co-partnership, Conklin-Palmer Insurance Agency, a Michigan co-partnership, Spencer J. Palmer, Jack R. Blanchard and Richard Gogolewski, Defendants-Appellants. 141 Mich.App. 676, 368 N.W.2d 250 |
| Court | Court of Appeal of Michigan — District of US |
[141 MICHAPP 680] Condit, McGarry & Schloff, P.C. by Richard P. Condit, Birmingham, for plaintiff-appellee.
Kohl, Secrest, Wardle, Lynch, Clark & Hampton by Michael L. Updike, Farmington Hills, for defendants-appellants.
Before HOOD, P.J., and BEASLEY and MARUTIAK *, JJ.
Defendants appeal as of right from a judgment entered on a jury award (No. 75597), and from an order granting plaintiff costs, including attorney fees pursuant to GCR 1963, 316.7 (No. 75792).
Plaintiff was insured by defendant Citizens through defendant insurance agencies. 1 In 1973 an accident occurred involving a person insured by Citizens and an automobile owned by one Patricia Hall, not the plaintiff herein. As a result of a series of mistakes on the part of defendants and Citizens' attorney, Shaker Brackett, Citizens erroneously pursued a subrogation claim against plaintiff herein. Despite plaintiff's numerous attempts to convince Citizens and attorney Brackett that she had not been involved in the 1973 accident, a subrogation lawsuit was commenced which resulted in a default judgment in 1979. One of plaintiff's paychecks was garnished before the matter was straightened out. 2
Plaintiff brought the present action against Attorney[141 MICHAPP 681] Brackett and defendants herein. 3 A mediation panel entered awards of $27,500 against Brackett and $27,500 against the remaining defendants. The awards were accepted by plaintiff and Brackett 4, but rejected by defendants herein. Following trial, the jury returned a special verdict:
Defendants' motion for directed verdict, which had been held in abeyance, was subsequently denied. Plaintiff was subsequently granted costs, including attorney fees, pursuant to GCR 1963, 316.7. Defendants filed separate appeals from the judgment and from the order awarding costs, and the matters were consolidated.
Defendants first challenge the trial court's denial of their motion for a directed verdict. In reviewing this issue, we must view the evidence in a light most favorable to plaintiff and determine whether a prima facie case was established. If there were material issues of fact upon which reasonable minds might differ, they were properly submitted to the jury. Taylor v. Wyeth Laboratories Inc., 139 Mich.App. 389, 362 N.W.2d 293 (1984). We address this issue with regard to each of the theories presented to the jury. The breach of contract claim applies to all defendants; the remaining counts apply only to defendant Citizens.
Breach of Contract. The jury awarded damages for breach of contract in the amounts of $5,000 against Citizens and $5,000 against defendant agencies. Defendants concede on appeal that there was evidence of a breach, but argue that a directed verdict should have been granted because there was no evidence of legally cognizable damages. Defendants contend that the jury's verdict improperly included mental anguish and related damages, which they assert are not recoverable for breach of a commercial contract under Kewin v. Massachusetts Mutual Life Ins. Co., 409 Mich. 401, 295 N.W.2d 50 (1980), reh. den. 409 Mich. 1116 (1980).
It is true that under Kewin, supra, damages for mental distress are not generally recoverable in a breach of contract action absent evidence that they were within the contemplation of the parties at the time the contract was made. Although the instructions in this case can be read as permitting recovery of mental anguish and related damages on the breach of contract claim, defense counsel did not object to the instructions or request any [141 MICHAPP 683] special instruction precluding the award of such damages on the breach of contract theory. Defendants cannot now claim that the jury was improperly permitted to award such damages.
Malicious Prosecution. The jury awarded $2,000 on this count. The elements of the tort of malicious prosecution are (1) the present defendant instituted a prior legal action against the present plaintiff, (2) the prior action was terminated in favor of plaintiff, (3) defendant lacked probable cause to bring the prior action, (4) defendant acted maliciously in bringing the prior action, and (5) plaintiff suffered special injury. Friedman v. Dozorc, 412 Mich. 1, 312 N.W.2d 585 (1981); Pauley v. Hall, 124 Mich.App. 255, 260-261, 335 N.W.2d 197 (1983), lv. den. 418 Mich. 870 (1983).
We find that plaintiff presented sufficient proof on each of the elements of malicious prosecution to avoid a directed verdict as to this count. Citizens concedes the existence of the first two elements. With regard to the remaining elements, there was clearly sufficient evidence that Citizens lacked probable cause to proceed against plaintiff, especially in light of plaintiff's several communications to Citizens and Attorney Brackett that she had not been involved in the accident. 5 As to the malice element, we find that the evidence establishing a lack of probable cause also supports a reasonable inference that Citizens acted in reckless disregard of plaintiff's rights in bringing the prior action. Finally, we believe the garnishment action brought by Citizens against the plaintiff is sufficient to establish special injury in this case. We [141 MICHAPP 684] conclude that plaintiff presented a prima facie case of malicious prosecution.
Intentional Infliction of Mental Distress. The jury awarded $3,500 on this cause of action. This Court has adopted the definition found in 1 Restatement Torts, 2d, Sec. 46, pp. 71-72, which provides that the cause of action is made out by proof of "extreme and outrageous conduct [which] intentionally or recklessly causes severe emotional distress to another". The theory refers to conduct which is " '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' ". Warren v. June's Mobile Home Village & Sales, Inc., 66 Mich.App. 386, 391, 239 N.W.2d 380 (1976), quoting 1 Restatement Torts, 2d, Sec. 46, Comment d, p. 73. See also Rosenberg v. Rosenberg Bros. Special Account, 134 Mich.App. 342, 351 N.W.2d 563 (1984), and Swenson-Davis v. Martel, 135 Mich.App. 632, 354 N.W.2d 288 (1984).
We agree with Citizens that plaintiff failed to establish a prima facie case of intentional infliction of mental distress. Viewing the evidence in a light most favorable to plaintiff, we do not believe that a reasonable fact finder could conclude that Citizens' conduct met the standard described above. The trial court erred in denying the motion for a directed verdict as to this count.
Invasion of Privacy. The jury returned a verdict of $3,500 on this count. This tort was described in Lewis v. Dayton-Hudson Corp., 128 Mich.App. 165, 168, 339 N.W.2d 857 (1983):
According to the instructions given by the trial court, the present case involves only the first type of claim, intrusion upon plaintiff's seclusion. In order to maintain an action for intrusion, plaintiff must prove that there was:
"(1) an intrusion by defendant; (2) into a matter which plaintiff has a right to keep private; (3) by the use of a method which is objectionable to the reasonable person." Lewis, supra, 128 Mich.App. p. 169, 339 N.W.2d 857, citing Earp v. Detroit, 16 Mich.App. 271, 276-277, 167 N.W.2d 841 (1969).
This type of claim is analogous to trespass, except that it is unnecessary to show physical invasion onto a person's property. Lewis, supra, 128 Mich.App. p. 168, 339 N.W.2d 857. See also Beaumont v. Brown, 65 Mich.App. 455, 237 N.W.2d 501 (1975), rev'd on other grounds 401 Mich. 80; 257 N.W.2d 522 (1977).
This Court agrees with Citizens that plaintiff failed to establish a prima facie case of this type of invasion of privacy. No secret or private matter was discovered by Citizens. We conclude that the elements of the intrusion form of invasion of privacy were not shown and that the trial court erred in denying the motion for a directed verdict as to this count.
Defamation. The jury returned a verdict of $1,500 on this claim. The elements of defamation have been stated as follows:
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