Moore v. Western Forge Corp.

Decision Date15 November 2007
Docket NumberNo. 06CA1557.,No. 06CA0229.,06CA0229.,06CA1557.
Citation192 P.3d 427
PartiesSue Ann MOORE, Plaintiff-Appellant, v. WESTERN FORGE CORPORATION, a foreign corporation; and Crawford & Company, a foreign corporation, Defendants-Appellees.
CourtColorado Court of Appeals

Fasing Law Firm, P.C., Gregory J. Fasing, Denver, Colorado, for Plaintiff-Appellant.

Thomas Pollart & Miller, LLC, Eric J. Pollart, Greenwood Village, Colorado, for Defendant-Appellee Western Forge Corporation.

White and Steele, PC, David J. Nowak, Denver, Colorado, for Defendant-Appellee Crawford & Company.

Opinion by Judge WEBB.

In this wrongful death action, plaintiff, Sue Ann Moore, appeals the trial court's summary judgment in favor of defendants, Western Forge Corporation (Western) and Crawford & Company (Crawford), as well as the costs awarded against her. We affirm the summary judgment but remand to reduce the cost award.

Moore's husband (decedent) filed a workers' compensation claim against Western, his long-term employer. Western was self-insured and used Crawford to administer its workers' compensation claims. Crawford mailed decedent, who was off work and awaiting surgery for his injury, a Notice of Contest stating that the claim was being contested pending completion of an investigation. Shortly after reading this notice, decedent killed himself.

In an unpublished decision, Sue Moore v. Industrial Claim Appeals Office, 2005 WL 1476251 (Colo.App.2005), a division of this court affirmed the panel's decision upholding denial of death benefits based on the ALJ's finding "that decedent's suicidal death was not due to a severe mental disorder created by the injury, but appeared to be triggered by employer's Notice of Contest." The division noted that the psychiatrist testifying for claimant

conceded that claimant was not clinically depressed at the time of his death, that he became distraught and desperate the moment he received formal notice that the claim would be contested, and that the suicide was an impulsive act related to the stress and worry caused by decedent's fear that he would be terminated if his injury were determined to be non-work-related.

The entire administrative record was included in the summary judgment record here.

In this appeal, Moore asserts that Western's handling of the claim through Crawford, acting as its agent within the scope of authority, was in bad faith and caused decedent emotional distress, which led to his suicide. Moore also asserts that defendants abused the workers' compensation process by contesting decedent's claim.

We conclude that the alleged breach of defendants' duty of good faith and fair dealing would not render them liable for the suicide, even accepting Moore's chain of actual causation; that contesting the claim did not legally or proximately cause the suicide; and that an abuse of process claim cannot be based on actions taken in administering a workers' compensation claim.

I. Summary Judgment Standard

We review a summary judgment de novo. Brodeur v. Am. Home Assurance Co., 169 P.3d 139, 146 (Colo.2007). Summary judgment is appropriate only if the pleadings and supporting documents demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id. The nonmoving party is entitled to the benefit of all favorable inferences reasonably drawn from the undisputed facts; all doubts must be resolved against the moving party. Id.

II. Liability for Suicide

According to Moore, because both Western and Crawford owed decedent a duty of good faith and fair dealing, breach of which would permit recovery of damages for decedent's emotional distress, their liability extends to decedent's suicide upon proof of causation connecting bad faith handling of the claim, resulting emotional distress, and decedent's "uncontrollable impulse" to kill himself, as her expert opined.

Defendants agree that they both owed decedent a duty of good faith, breach of which would make them liable for decedent's emotional distress, but they deny that the duty extends to detecting or preventing suicide. They also assert that because suicide is an independent intervening act, the causal chain articulated by Moore does not establish proximate cause, even assuming breach of their duty resulted in emotional distress which was a factor in the suicide.

Defendants do not dispute, and therefore we accept for purposes of summary judgment, that material factual issues have been raised concerning bad faith and resulting emotional distress. We discern an issue of material fact as to the chain of actual causation leading to decedent's suicide. Nevertheless, we agree with the trial court.

A. Introduction

The only reported Colorado appellate opinion to address tort liability for suicide is English v. Griffith, 99 P.3d 90 (Colo.App. 2004), a negligence action in which the plaintiffs' deceased and the defendant had been roommates. The case is of limited value here because the division held that the defendant did not owe the deceased a legal duty, and for that reason it declined to address causation.

"The courts which have addressed the issue uniformly split the claims into two familiar categories: cases where death is caused by intentional wrongdoing and those where causation is negligent." Rowe v. Marder, 750 F.Supp. 718, 723 (W.D.Pa.1990). Here, this approach is complicated by several factors:

• Moore did not plead a claim for, nor does she argue that the facts show, intentional infliction of emotional distress or willful infliction of physical injury by defendants against decedent.

• Moore pleaded a bad faith claim, but did not argue below and does not argue on appeal that this claim must be analyzed under causation principles unique to intentional wrongdoing.

• Moore did not plead a negligence claim, but in response to defendants' reliance below on causation principles derived from negligence cases, she asserted and argues on appeal that those principles also preclude summary judgment because decedent acted on an "uncontrollable impulse."

Nevertheless, we are guided by the following general principles.

In intentional tort cases, several courts have acknowledged that a defendant would be liable for wrongful death if intentional infliction of emotional distress resulted in suicide by the plaintiff's deceased. See, e.g., Tate v. Canonica, 180 Cal.App.2d 898, 5 Cal. Rptr. 28 (1960); Mayer v. Town of Hampton, 127 N.H. 81, 497 A.2d 1206 (1985).

These courts rely on principles such as Restatement (Second) of Torts § 435A ("A person who commits a tort against another for the purpose of causing a particular harm to the other is liable for such harm if it results, whether or not it is expectable...."). According to Restatement section 870, "One who intentionally causes injury to another is subject to liability to the other for that injury...." Comment (b) to section 870 explains, "An intentional tort is one in which the actor intends to produce the harm that ensues; it is not enough that he intends to perform the act."

While not binding on Colorado courts, "the restatements generally provide concise summaries of the law in a certain subject matter and can be persuasive authority." AE, Inc. v. Goodyear Tire & Rubber Co., 168 P.3d 507, 509 n. 1 (Colo.2007); see also Raleigh v. Performance Plumbing & Heating, Inc., 130 P.3d 1011, 1021 (Colo.2006)(Mullarkey, C.J., concurring in part and dissenting in part)(citing Restatement (Third) of Torts § 29 (Proposed Final Draft No. 1, 2005)); Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70, 79 (Colo.1998) (recognizing that the Restatement (Second) of Torts summarizes "guiding legal principles").

In negligence cases, courts have been unwilling to recognize any duty, breach of which would make a defendant liable for suicide based only on actual causation, absent a special relationship involving treatment, supervision, or custodial control of the deceased. See English, 99 P.3d at 94 (collecting cases). At oral argument, Moore conceded that she is not asserting defendants' liability under the special relationship doctrine.

Otherwise, courts have found proximate cause only in very narrow circumstances, such as where negligence resulted in delirium, insanity, or, in some cases, other mental conditions that precluded the deceased from making a rational choice. This limitation on proximate cause derives from "the rationale that the consummated suicide or unsuccessful attempt constitutes an independent intervening act which the original tortfeasor could not reasonably have been expected to foresee." Gregory G. Sarno, Annotation, Liability of Attorney for Suicide of Client Based on Attorney's Professional Act or Omission, 41 A.L.R.4th 351 (1985); see, e.g., Sindler v. Litman, 166 Md.App. 90, 110, 887 A.2d 97, 113 (2005)(collecting cases); McLaughlin v. Sullivan, 123 N.H. 335, 337, 461 A.2d 123, 124 (1983) (cited with approval in English, 99 P.3d at 94).

These general principles reduce this case to three questions. First, should liability for suicide based on breach of the duty of good faith and fair dealing be determined by applying the broad legal causation principles of intentional torts? Second, if those principles do not apply, does the scope of this duty expose a defendant to potential liability for an insured's suicide based on only actual causation? Third, if the scope of this duty is more limited, did Moore present sufficient evidence of legal or proximate cause, in addition to actual cause, to avoid summary judgment? We answer these questions in the negative.

B. Duty of Good Faith and Fair Dealing

Moore cites no authority, nor have we found any, holding that breach of a claims administrator's or an insurer's duty of good faith and fair dealing could lead to liability for the suicide of an insured. Nevertheless, she urges us to reach this conclusion based on language in many Colorado...

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