McCahill v. Commercial Union Ins. Co.

• Decision Date: 20 October 1989
• Docket Number: Docket No. 99183
• Citation: 179 Mich.App. 761,446 N.W.2d 579
• Parties: , 6 A.L.R.5th 1092 Carl A. McCAHILL, Plaintiff-Appellee, v. COMMERCIAL UNION INSURANCE COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 579

446 N.W.2d 579

179 Mich.App. 761, 6 A.L.R.5th 1092

Carl A. McCAHILL, Plaintiff-Appellee, v. COMMERCIAL UNION INSURANCE COMPANY, Defendant-Appellant.

Docket No. 99183.

Court of Appeals of Michigan.

Submitted Dec. 12, 1988.

Decided Sept. 5, 1989.

Released for Publication Oct. 20, 1989.

Domol & Domol, P.C. by Robert C. Domol and Anthony S. Domol, Southfield, for plaintiff-appellee.

Denenberg, Tuffley, Bocan, Jamieson, Black, Hopkins & Ewald, P.C. by David R. Tuffley, Dana L. Ramsay, and John A. Lawson, Southfield, for defendant-appellant.

Before SHEPHERD, P.J., and MURPHY and GILLESPIE, ^* JJ.

MURPHY, Judge.

Following a thirteen-day jury trial on plaintiff's breach of contract and intentional infliction of emotional distress claims against defendant, a judgment of approximately $208,000 was entered in plaintiff's favor. The trial court denied defendant's motions for judgment notwithstanding the verdict, new trial or remittitur. Defendant now appeals as of right.

On July 21, 1983, fire extensively damaged a farmhouse owned by plaintiff which is located in Manchester, Michigan. James Kensler, who had been a Manchester fireman since 1949 and fire chief from 1963 until 1984, testified that since 1949 he had fought and investigated about fifteen hundred fires. He explained that on the day of the fire there was severe weather. There had been a tornado watch which was elevated to a tornado warning. He dispatched several fire trucks to watch for tornados. Apparently, a tornado was sighted and there had been a severe electrical storm. He described the weather as follows:

Well, it went from a tornado watch to a tornado warning and involving this storm, we had very heavy lightning and rain and wind and I mean heavy lightning. And it was a severe storm.

He received a call that there was a house fire on Wolfe Road. Approximately thirty firemen responded, sixteen from Manchester, twelve from Sand Lake, and the Clinton Fire Department responded with tanker trucks. When he arrived at the scene, the building was burning "furiously" in the center of the house. The fire was "knocked down" fairly quickly and it started again. The fire was then extinguished.

He explained that the fire seemed to burn right through the middle of the house. He elaborated:

It was a strange type of a fire because when fires smolder, you can smell them and you'll see where the smoke will cook out of the eaves and this house didn't have this.

It's the type of fire that was almost instant. I mean, it was a hot--so the first thing that comes to our mind is lightning. This house had lightning rods on it and at the time I shook my head. I found part of the center lightning rod on the house.

* * * * * *

And as the men were continuing their investigation, I didn't say a word because these are the men that are trained to--and I walked around to the back of the house to find out why--when lightning rods are on a house, this house is supposed to be grounded.

Well, the cable that grounds the house was all rotted away on the back of the house. There was a foot or two missing out of it. It was just rusted away.

He concluded that plaintiff's home was struck by a bolt of lightning which immediately started the fire.

Plaintiff had an insurance policy issued by defendant which insured the house for $64,000 and its contents for $32,000. At the time of the fire, plaintiff, who is a dentist with a practice in Adrian, was residing in a home located in Adrian.

Thomas Glow, a general adjustor for defendant, inspected the damaged property four days after the fire. He testified that plaintiff agreed to meet him at the property. However, plaintiff testified that he had not been informed that the inspection was to take place on that date and that it took place without his permission. Glow's inspection raised doubts about the origin of the fire. He hired Wilbur Massey, an investigator from INS Investigations, to inspect the site. Massey investigated the site on July 27, 1983, and concluded that the fire had been set deliberately.

Initially, defendant sent proof of loss statements to plaintiff's farmhouse address. On September 6, 1983, plaintiff received a proof of loss form at his Adrian address. On or about September 16, 1983, Glow telephoned plaintiff and requested that he make a proof of loss statement over the telephone. Plaintiff refused to do so. Plaintiff testified that Glow telephoned between midnight and 2:00 a.m. and spoke to him in an arrogant manner. Glow testified that he telephoned plaintiff during business hours and denied that he spoke in an arrogant manner. Glow also denied that defendant sent the proof of loss forms to the wrong address intentionally.

On December 12, 1983, some six months after the fire, plaintiff received a letter from defendant informing him that his claim had been denied. Defendant cited arson, fraud and false swearing by the policyholder as its reasons for denying the claim. Glow testified that he made the decision, which was approved by his supervisors, to deny the claim. Plaintiff testified that he was shocked when he received the letter, that the situation caused him embarrassment, and that he thought he was the subject of a rumor concerning the origin of the fire.

In April, 1984, plaintiff filed suit alleging that defendant had maliciously, fraudulently and surreptitiously breached its contract by refusing to pay his claim. Plaintiff also alleged that defendant, through its agents, intentionally, deliberately and maliciously entered upon his property without his prior knowledge and consent and changed the physical characteristics of the realty. Moreover, plaintiff alleged that defendant's agents entered onto the property with the intention and purpose of defeating plaintiff's loss claim. Plaintiff also alleged that defendant's acts constituted malicious and outrageous conduct which led him to suffer injury to his personal and business reputation and to suffer mental anguish and severe emotional distress.

The matter proceeded to a jury trial and, at the conclusion of plaintiff's proofs, defendant moved for a directed verdict on plaintiff's emotional distress claim. The court denied the motion.

After all of the testimony was completed, the jury answered a series of special questions and found for plaintiff. Specifically, the jury determined that: (1) plaintiff did not set or procure the setting of the fire; (2) plaintiff did not wilfully conceal or misrepresent any material fact or circumstance concerning the insurance, and that he did not engage in any false swearing; (3) the replacement cost of the building was $80,000 and $27,968 for the replacement cost of the contents; and, finally, (4) plaintiff was entitled to $100,000 for the intentional infliction of emotional distress. Defendant now appeals as of right.

Defendant first contends that the trial court erred in denying its motion for a directed verdict on plaintiff's intentional infliction of emotional distress claim.

In Caldwell v. Fox, 394 Mich. 401, 407, 231 N.W.2d 46 (1975), our Supreme Court addressed the standard to be used in making the determination whether a motion for a directed verdict should be granted:

At the outset we reiterate a well-established principle of law: The jury, not the trial judge, is the trier of fact. Whenever a fact question exists, upon which reasonable persons may differ, the trial judge may not direct a verdict. Conversely, when no fact question exists, the trial judge is justified in directing a verdict. In deciding whether or not to grant a motion for a directed verdict, the trial judge must accord to the non-moving party the benefit of viewing the testimony and all legitimate inferences that may be drawn therefrom in a light most favorable to the non-moving party. If the evidence, when viewed in this manner, establishes a prima facie case, the motion for a directed verdict must be denied. In Detroit & Milwaukee R Co v Van Steinburg, 17 Mich 99, 117 (1868), Chief Justice Thomas M. Cooley said:

"In determining this question, we must look at the case as it appears from the plaintiff's own testimony, unqualified by any which was offered on the part of the defendants, and must concede to him any thing which he could fairly claim upon that evidence. He had a right to ask the jury to believe the case as he presented it; and, however improbable some portions of his testimony may appear to us, we can not say that the jury might not have given it full credence. It is for them, and not for the court to compare and weigh the evidence."

This standard was most recently reaffirmed in Dodd v Secretary of State, 390 Mich 606, 612; 213 NW2d 109 (1973), where it was said that the court must "view the testimony in the light most favorable to the plaintiff and draw the reasonable inferences therefrom which are in his favor." [Emphasis added.]

This Court has also recently stated that if the evidence, viewed in a light most favorable to plaintiff, establishes a prima facie case, a defense motion for a directed verdict should be denied. Dixon v. W.W. Grainger, Inc., 168 Mich.App. 107, 110, 423 N.W.2d 580 (1987). If material issues of fact remain upon which reasonable minds might differ, they are for the jury. A plaintiff has the right to ask the jury to believe the case presented to it, however improbable it may seem. Id.

The elements of a prima facie case of intentional infliction of emotional distress are: (1) extreme or outrageous conduct, (2) which intentionally or recklessly, (3) causes, (4) extreme emotional distress. See Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 374 N.W.2d 905 (1985); Grochowalski v. DAIIE, 171 Mich.App. 771, 775, 430 N.W.2d 822 (1988). The defendant's conduct must be something more than a mere bad-faith breach of an insurance contract, Kewin v. Massachusetts Mutual Life Ins. Co., 409 Mich. 401, 423, 295 N.W.2d 50 (1980). It must be more than mere threats, insults or indignities. Roberts, supra...