Metropolitan Life Ins. Co. v. McCarson, 80-1263

• Decision Date: 06 April 1983
• Docket Number: No. 80-1263,80-1263
• Citation: 429 So.2d 1287
• Parties: METROPOLITAN LIFE INSURANCE COMPANY, Appellant/Cross Appellee, v. Ernest D. McCARSON, Sr., etc., et al., Appellees/Cross Appellants.
• Court: Florida District Court of Appeals

Page 1287

429 So.2d 1287

METROPOLITAN LIFE INSURANCE COMPANY, Appellant/Cross Appellee, v. Ernest D. McCARSON, Sr., etc., et al., Appellees/Cross Appellants.

No. 80-1263.

District Court of Appeal of Florida Fourth District.

April 6, 1983.

Rehearing Denied May 10, 1983.

Donald J. Sasser of Johnston, Sasser & Randolph, and William Pruitt, West Palm Beach, John G. Pare', Tampa, and Richard G. Mandell, New York, for appellant/cross-appellee.

Samuel D. Phillips, Thompson & Gesch, and Larry Klein, West Palm Beach, for appellees/cross-appellants.

ANSTEAD, Judge.

This is an appeal from a final judgment against Metropolitan Life Insurance Company awarding damages in a wrongful death action predicated upon Metropolitan's alleged wrongful termination of medical insurance benefits. Metropolitan claims that the evidence was insufficient to support the award or, alternatively, that certain trial errors mandate a new trial. We affirm.

While we recognize that the facts were controverted, in determining the sufficiency of the evidence we are obligated to construe the evidence and the inferences therefrom most favorably to the prevailing party. Anchor Hocking Glass Corp. v. Allen, 161 So.2d 853 (Fla. 1st DCA 1964). Although this action was instituted in 1977, its roots reach back to 1973 when Metropolitan issued a group health insurance policy to Ernest McCarson's small paint and body shop business. Initially, Ernest McCarson was the insured, and Lucille McCarson, his wife, was one of three employees covered. After the initiation of this policy, it was discovered that Mrs. McCarson had Alzheimer's Disease, a progressive and degenerative brain disease which results in premature senility. In 1974 Metropolitan unilaterally terminated the policy claiming that the McCarsons had misrepresented Lucille McCarson's physical condition on the initial application. Subsequently, the McCarsons sued and recovered damages as well as a court order that the policy be reinstated and benefits paid in accord therewith. However, the controversy between the parties over coverage continued unabated.

Early in 1977 Mrs. McCarson's condition required her to have private nursing care in her home. Metropolitan was fully aware of this requirement and initially authorized the employment of a private nursing service. Metropolitan was also aware that the McCarsons had no other means to secure this nursing care. Metropolitan had direct dealings with the nursing service involved and paid claims for such services until April 5, 1977. Metropolitan thereafter withheld all monies due, claiming that there was a question of Mrs. McCarson's eligibility for Medicare which would in turn affect Metropolitan's obligation to pay for nursing services. During this same time, however, Metropolitan continued to accept premiums, and evidence was presented that Metropolitan knew that Mrs. McCarson was not eligible for Medicare and that Medicare did not cover home nursing services.

Metropolitan was repeatedly advised by the nursing service that unless payments were made the services would be terminated. Although Metropolitan continued to assure the nursing service that payments would be forthcoming, no such payments were made and, ultimately, on June 3, 1977, Mrs. McCarson's nursing services were terminated. Although Mr. McCarson initially attempted to care for her at home by himself and with the aid of non-professionals, Mrs. McCarson's condition worsened and she was placed in a nursing home. At the nursing home her condition deteriorated dramatically. At home Lucille McCarson had recognized her husband and was able to walk with assistance, while at the nursing home she no longer walked at all or recognized her husband or her surroundings. Finally, she had to be placed in restraints to prevent her from removing medical devices attached to her body to sustain her well-being.

Throughout this period Mr. McCarson attempted without success to have Metropolitan acknowledge its liability for the home nursing services. Finally, and while Mrs. McCarson was still living, the McCarsons instituted a second suit against Metropolitan seeking damages for bad faith and simple breach of contract, intentional infliction of emotional distress, punitive damages and attorney's fees. Lucille McCarson died of a heart attack in the nursing home on October 11, 1977, and the McCarson action was amended, substituting Ernest McCarson as personal representative of his wife's estate and adding a count alleging that Metropolitan's actions had resulted in Mrs. McCarson's premature death.

At trial the jury awarded damages for breach of contract, intentional infliction of emotional distress to Mrs. McCarson while she was alive, and wrongful death, but declined to make a punitive damage award. After trial the court awarded appellees attorney's fees for the breach of contract recovery and set aside the award for damages suffered by Mrs. McCarson while living. These post-trial actions are also at issue in this appeal.

Metropolitan contends that it should have been granted a directed verdict on the claim for wrongful death. As noted, as a predicate for the death claim, the McCarsons charged Metropolitan with breach of contract, bad faith, and the intentional infliction of emotional distress in terminating Mrs. McCarson's home nursing services. Because we find sufficient evidence to sustain the award under the intentional infliction of emotional distress claim we will not discuss the breach of contract or bad faith actions, the alternate bases for the wrongful death recovery.

The independent tort of intentional infliction of emotional distress was explicitly recognized by the First District in Ford Motor Co. v. Sheehan, 373 So.2d 956 (Fla. 1st DCA 1979). The Fifth District recognized the tort in Food Fair, Inc. v. Anderson, 382 So.2d 150 (Fla. 5th DCA 1980). The Third District appeared to reject the tort in Gellert v. Eastern Airlines, 370 So.2d 802 (Fla. 3d DCA 1979), although in an alternative holding it declared that evidence was insufficient to establish the elements of such an action. The Second District, in an opinion that denied the conflict between Gellert and Sheehan, has denied the existence of such a tort in Florida and certified the issue to the Florida Supreme Court. Gmuer v. Garner, 426 So.2d 972 (Fla. 2d DCA Case No. 81-2368, opinion on rehearing filed Feb. 21, 1983) [8 F.L.W. 649]. Both Gellert and Sheehan base their conclusions upon Florida Supreme Court pronouncements in Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950); Slocum v. Food Fair Stores of Florida, 100 So.2d 396 (Fla.1958); LaPorte v. Associated Independents, Inc., 163 So.2d 267 (Fla.1964); and Gilliam v. Stewart, 291 So.2d 593 (Fla.1974). These cases do not directly address the question, but do, in our view, implicitly approve an action for intentional infliction of emotional distress upon sufficient facts.

After examining these cases, and our own precedent, Scheuer v. Wille, 385 So.2d 1076 (Fla. 4th DCA 1980), we conclude that the Sheehan court's analysis of this issue is the correct one. ¹ In so doing we acknowledge our conflict with Gmuer and Gellert. We also concede that our holding is greatly influenced by the Supreme Court's dictum in...