Moses v. Prudential Ins. Co. of America

• Decision Date: 23 May 1988
• Docket Number: No. 76063,76063
• Citation: 369 S.E.2d 541,187 Ga.App. 222
• Parties: MOSES v. PRUDENTIAL INSURANCE COMPANY OF AMERICA et al.
• Court: Georgia Court of Appeals

Page 541

369 S.E.2d 541

187 Ga.App. 222

MOSES v. PRUDENTIAL INSURANCE COMPANY OF AMERICA et al.

No. 76063.

Court of Appeals of Georgia.

May 23, 1988.

Scott Walters, Jr., East Point, for appellant.

Robert A. Barnaby II, Cheri D. McLeod, Atlanta, for appellees.

BIRDSONG, Chief Judge.

This is an appeal from the order of the superior court judge granting appellees' motion for summary judgment.

Appellant worked for appellee insurance company for approximately two years, and appellee Huggins was his supervisor. During his employment with appellee insurance company, appellant sold a Prudential whole life, payroll deduction life insurance policy referred to as "Pru-Pep," to a nursing home. Appellant quit work for appellee company and went to work as an independent agent for another insurance company.

Subsequently, the appellant contacted the nursing home administrator, informed her of his new employment, and advised her that another Prudential employee was the nursing home's new servicing agent. Appellant also informed the administrator that the Pru-Pep policy would still meet the needs of about 95 percent of the nursing home's employees, but that approximately five people would receive a better benefit from the insurance appellant was now selling. Appellant agreed to contact the administrator "the first part of next week" regarding the new insurance.

About two weeks later, appellee Huggins called the appellant and left the following message on the latter's telephone recorder: "Mark, this is Jeff. I just want to tell you not to screw around with the Prudential clients again, and especially like the trick you tried to pull on your Pru Pep case, or you are going to find your butt in court or your neck broken somewhere." Appellant returned appellee Huggins' call within the next fifteen minutes, and discussed the issue of contacting clients but did not discuss the threat and no mention was made of it. Appellant testified that he did not thereafter contact the clients as he did not want his neck broken, and that he quit selling life insurance that very day as a result of the phone call. Appellant also asserts that because of the phone call he was in "fear of his personal safety," and that he would look around when he went to his car for fear that someone might be there.

Appellant later met appellee Huggins in a bank and the two men shook hands and had a short conversation before appellant could get away. Another time appellant saw appellee Huggins in a restaurant and left before the latter saw him and started any trouble. Appellant admitted that at the time of his phone call he was five miles away from appellee Huggins. During his deposition, appellant allegedly testified in response to two questions that because appellee Huggins was five miles away there was nothing that Huggins could do to him; however, in a subsequent errata sheet, appellant attempted to modify the effect of his deposition responses to reflect that he did believe Huggins could do something to him. Appellant, in a Caveat of Defendant's Statement of Material Facts, subsequently asserted that his response to the two questions should have been that appellee Huggins "at the time of the conversation had no apparent present ability to injure [the appellant] and [the appellant] did not fear injury at that moment." Further, the appellant testified that he "was more frightened that [appellee Huggins] would have [the threat] done" by someone else, and that this was his "greatest fear." Although the appellant tacitly admitted to knowing of no instances where appellee Huggins had hired or used someone else to do anything to anybody else, he knew that "he does whatever it takes to get what he wants."

Appellant brought suit against appellee Prudential Insurance Company and its alleged agent, servant and employee appellee Huggins on the grounds that the conduct of the appellee Huggins in leaving the message on appellant's recording machine both constituted "a wilful infliction of emotional distress" and an "intrusion into [appellant's] reasonable expectations of privacy."

Appellant enumerates as error that the trial judge erred in granting appellees' motion for summary judgment, in that the words of appellee Huggins constituted an actionable wrong. Held:

It is a well-established general rule in this state that in order to sustain a cause of action for the tort of intentional infliction of emotional distress, the defendant's actions must have been so terrifying or insulting as naturally to humiliate, embarrass or frighten the plaintiff. Crowe v. J.C. Penney, Inc., 177 Ga.App. 586(1), 340 S.E.2d 192; Anderberg v. Ga. Elec. Membership Corp., 175 Ga.App. 14(3), 332 S.E.2d 326; Sossenko v. Michelin Tire Corp., 172 Ga.App. 771, 772, 324 S.E.2d 593. However, our courts have also recognized that "there is authority to sanction a recovery in tort where the defendant has wilfully and wantonly caused emotional upset to the plaintiff through the use of abusive or obscene language." Tuggle v. Wilson, 248 Ga. 335(2), 282 S.E.2d 110; Greer v. Medders, 176 Ga.App. 408, 336 S.E.2d 328. Unfortunately, little guidance is provided in these opinions regarding the circumstances under which this latter cause of action could be properly applied. We believe that this cause of action grounded on wilful or wanton conduct does not give rise to any new type of tort heretofore unrecognized, rather it is but a practical application of the well-reasoned tort principle, subsequently expressed in Hamilton v. Powell, Goldstein, Frazer, Etc., 252 Ga. 149, 150, 311 S.E.2d 818, that "reckless and wanton disregard of consequences may evince an intention to inflict injury." Thus, as in the case of severe mental distress caused by intentional infliction of injury, " 'a reckless disregard of the rights of others, equivalent to an intentional tort [committed] by the defendant' " will give rise to a cause of action to the injured party for the mental pain and anguish, that is, the mental distress, suffered therefrom. See Hamilton, supra at 150, 311 S.E.2d 818; see also Prosser & Keeton on Torts (5th ed.), Ch. 2, § 12, p. 64 ("There are, however, a few cases which indicate that liability for extreme outrage is broader and extends to situations in which there is no certainty, but merely a high degree of probability that the mental distress will follow, and the defendant goes ahead in conscious disregard of it. This is the type of conduct which commonly is called wilful or wanton or reckless.") The emotional distress tort is "still in a stage of development, and the ultimate limits of this tort are not yet determined." Restatement (Second) of Torts, Ch. 2, Emotional Distress, § 46(1), comment c. However, "[t]he cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous." Id. at comment d. In view of these factors, coupled with the court's justifiable concern that causes of action grounded upon emotional distress may give rise to fictitious, inflated or trivial claims unless properly circumscribed, we believe it appropriate to graft a threshold...