Roberts v. Auto-Owners Ins. Co., AUTO-OWNERS

CourtSupreme Court of Michigan
Writing for the CourtBOYLE; WILLIAMS; LEVIN
Citation422 Mich. 594,374 N.W.2d 905
PartiesDelores ROBERTS, as Next Friend of Christine M. Rodzos, and Delores Roberts and Ralph Roberts, individually, Plaintiffs-Appellees, v.INSURANCE COMPANY, Defendant-Appellant. 422 Mich. 594, 374 N.W.2d 905
Decision Date01 October 1985
Docket NumberDocket No. 72861,AUTO-OWNERS

Bush, Luce, Henderson, Bankson & Heyboer by S. Keith Bankson, Port Huron, for plaintiffs-appellees.

Law Office of W.J. Drillock by David W. Hearsch, Marlette, for defendant-appellant.

Donovan Hammond Ziegelman Roach & Sotiroff, P.C. by Thomas A. Roach, Mark C. Lahti, and Joseph W. Murray, Asst. Gen. Counsel, Blue Cross and Blue Shield of Michigan, Detroit, for Blue Cross and Blue Shield of Michigan.

Dickinson, Brandt, Hanlon, Becker & Lanctot by Charles T. McCutcheon, Detroit, for ACIA; Gromek, Bendure & Thomas by Carl L. Gromek, Nancy L. Bosh, Detroit, of counsel.

BOYLE, Justice.

Our order granting leave to appeal in this case directed the parties to brief the following two issues:

"(1) whether the tort of intentional infliction of emotional distress exists in this jurisdiction; and, if so,

"(2) whether plaintiffs adequately pled and proved an intentional infliction of emotional distress." 419 Mich. 933 (1984).

Since we conclude that plaintiff failed even to meet the threshold requirements of proof to make out a prima facie claim of intentional infliction of emotional distress, we are constrained from reaching the issue as to whether this modern tort should be formally adopted into our jurisprudence by the well-settled rule that statements concerning a principle of law not essential to determination of the case are obiter dictum 1 and lack the force of an adjudication, McNally v. Wayne County Canvassers, 316 Mich. 551, 25 N.W.2d 613 (1947).


Plaintiffs Delores and Ralph Roberts brought this action, individually and on behalf of their minor daughter, Christine Rodzos, seeking recovery of certain no-fault benefits from their no-fault insurer, defendant Auto-Owners Insurance Company. The claims arose when Christine was struck by a motor vehicle while riding her bicycle, resulting in her hospitalization for several days and her missing of school for a total of three weeks. Auto-Owners paid plaintiffs' medical and ambulance bills. The instant lawsuit concerns only plaintiffs' claim for replacement benefits under M.C.L. Sec. 500.3107(b); M.S.A. Sec. 24.13107(b). 2 In a separate paragraph of the complaint, plaintiffs also claimed damages for "mental anguish" and "exemplary or punitive damages" for Auto-Owners' conduct alleged to be "improper and/or outrageous and/or malicious" in the following respects:

"On or about July 19, 1979, Plaintiff made application for replacement services benefits; August 28, 1979, forms requested by Defendant were submitted to Defendant on or about September 3, 1979, Defendant stated that Defendant did not have a document for the purpose of presenting replacement services claim; At the time of said September 3, 1979, statement, the Michigan No Fault Insurance Statute including replacement services benefits had been in effect for almost six years; Plaintiffs created and submitted their own document regarding replacement services on or about November 19, 1979, said application apparently being ignored requiring a follow up letter dated December 13, 1979; On or about January 8, 1980, approximately six months after the accident, Defendant submitted letter apparently denying plaintiff's valid claim; As of date hereof, Defendant has not paid anything at all by way of replacement services benefits."

Before trial, Auto-Owners moved for summary judgment, arguing that mental anguish, exemplary or punitive damages are not available in an action claiming replacement benefits. The motion was denied, as was defendant's subsequent motion for reconsideration, apparently 3 on the ground that plaintiffs' claim for mental anguish, exemplary or punitive damages was based on the tort of intentional infliction of emotional distress rather than in contract. Auto-Owners renewed the motion at trial, this time alleging plaintiffs' failure to properly allege the tort theory in the complaint. The motion again was denied. 4 At the close of plaintiffs' case, Auto-Owners unsuccessfully moved for a directed verdict, claiming a failure of proof on the same issue. The jury subsequently returned a verdict awarding the plaintiffs a portion of the replacement benefits claimed, as well as $2,500 in mental distress damages. Auto-Owners' motion for a new trial, contesting the validity of the mental distress damage award, also was denied.

In the Court of Appeals, Auto-Owners relied on this Court's then-recent pronouncement in Kewin v. Massachusetts Mutual Life Ins. Co., 409 Mich. 401; 295 N.W.2d 50 (1980), contending that mental distress damages are unavailable in what is essentially a breach of contract action. In affirming the judgment of the lower court, the Court of Appeals distinguished Kewin by finding sufficient evidence of tortious conduct--independent of the contract breach--to justify the award of mental distress damages in this case. Roberts v. Auto-Owners Ins. Co., 135 Mich.App. 595, 354 N.W.2d 271 (1983).

We granted leave to consider the viability of plaintiffs' tort theory on the facts of this case, and directed the parties to brief the issues set forth above.


In Kewin, supra, we held that a disability insurance policy did not involve matters of mental concern and solicitude that would justify an award of mental distress damages for its breach. 5 409 Mich. 416, 295 N.W.2d 50. We further held that exemplary damages are not recoverable for breach of a commercial contract "absent allegation and proof of tortious conduct existing independent of the breach." 409 Mich. 420-421, 295 N.W.2d 50; see also Valentine v. General American Credit, Inc., 420 Mich. 256, 263, 362 N.W.2d 628 (1984). Left open, however, was the question raised in this appeal: whether a separate tort claim for intentional infliction of emotional distress can be brought on the basis of an insurer's dilatory conduct in handling an insured's claim. 6

The tort theory forwarded by plaintiffs has been recognized elsewhere to permit recovery of mental distress damages separate and apart from the recovery of contractual damages for breach of an insurance policy. See, e.g., Eckenrode v. Life of America Ins. Co., 470 F.2d 1 (CA7, 1972); Strader v. Union Hall, Inc., 486 F.Supp. 159 (N.D.Ill., 1980); Amsden v. Grinnell Mutual Reinsurance Co., 203 N.W.2d 252 (Iowa, 1972); Fletcher v. Western National Life Ins. Co., 10 Cal.App.3d 376, 89 Cal.Rptr. 78, 47 A.L.R.3d 286 (1970); see, generally, Holmes, Is there life after Gilmore's death of contract?--Inductions from a study of commercial good faith in first-party insurance contracts, 65 Cornell L.R. 330, 356-359 (1980). Indeed, although the instant case apparently marks the first appellate affirmance of a mental distress award in this context, our Court of Appeals has previously acknowledged (at least implicitly) the viability of the intentional infliction theory in insurance suits alleging dilatory handling of claims. See Butt v. D.A.I.I.E., 129 Mich.App. 211, 218-219, 341 N.W.2d 474 (1983); Butler v. D.A.I.I.E., 121 Mich.App. 727, 735-737, 329 N.W.2d 781 (1982); Holmes v. Allstate Ins. Co., 119 Mich.App. 710, 713-718, 326 N.W.2d 616 (1982) (workers' compensation action); Frishett v. State Farm Mutual Automobile Ins. Co., 3 Mich.App. 688, 143 N.W.2d 612 (1966); see also Bolden v. John Hancock Mutual Life Ins. Co., 422 F.Supp. 28, 29-31 (E.D.Mich., 1976).

Those courts which have recognized intentional infliction of emotional distress as a separate theory of recovery have generally embraced the Restatement definition of the tort:

"Sec. 46. Outrageous Conduct Causing Severe Emotional Distress

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." Restatement Torts, 2d, Sec. 46, p. 71.

Four elements are identified in this definition: (1) "extreme and outrageous" conduct; (2) intent or recklessness; (3) causation; and (4) "severe emotional distress." See, e.g., Ross v. Burns, 612 F.2d 271, 273 (CA6, 1980).

We find that plaintiffs herein failed to make the minimum showing of proof of either "extreme and outrageous" conduct or "severe emotional distress" required to withstand defendant's motion for a directed verdict.

A. Extreme and Outrageous Conduct

An oft-quoted Restatement comment summarizes the prevailing view of what constitutes "extreme and outrageous" conduct:

"The cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice', or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been 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. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'

"The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts...

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