Thorpe v. Mutual of Omaha Ins. Co.

• Decision Date: 28 July 1992
• Docket Number: No. 91-2306,91-2306
• Citation: 984 F.2d 541
• Parties: Frank THORPE, Plaintiff, Appellant, v. MUTUAL OF OMAHA INSURANCE COMPANY, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 541

984 F.2d 541

24 Fed.R.Serv.3d 1081

Frank THORPE, Plaintiff, Appellant, v. MUTUAL OF OMAHA INSURANCE COMPANY, Defendant, Appellee.

No. 91-2306.

United States Court of Appeals, First Circuit.

Heard July 28, 1992.

Decided Jan. 29, 1993.

Edward J. McCormick, III, Norfolk, MA, was on brief, for plaintiff, appellant.

Edward S. Rooney, Jr., Boston, MA, was on brief, for defendant, appellee.

Before CYR and BOUDIN Circuit Judges, and HORNBY, ^* District Judge.

BOUDIN, Circuit Judge.

Appellant Frank Thorpe sued Mutual of Omaha Insurance Company ("Mutual of Omaha") for alleged emotional distress and violation of Mass.Gen.L. chs. 93A and 176D. The claims were based on Mutual of Omaha's surveillance of Thorpe in connection with Thorpe's receipt of disability benefits under an insurance policy. Thorpe appeals from rulings below granting summary judgment in favor of Mutual of Omaha on the statutory claims and directing judgment for Mutual of Omaha on the emotional distress claim. We affirm both rulings.

Thorpe is a former police officer who sustained serious injuries, including a contusion to the heart, in an employment-related automobile accident in 1975. As a result, Thorpe retired from the police force and began collecting monthly total disability benefits under a policy with Mutual of Omaha. In order to verify Thorpe's continued eligibility, Mutual of Omaha representatives regularly visited Thorpe at his home and inquired into his daily activities and prospects for rehabilitation.

Beginning in 1982, personal contact with Thorpe became increasingly difficult; on several occasions, Thorpe either was not at home or did not come to the door. The problem reached a head in early 1983, when Mutual of Omaha was unable to contact Thorpe at home despite repeated attempts. Suspecting that Thorpe might be working during the day, Mutual of Omaha began surveillance of Thorpe in April 1983. On the second day of surveillance, Thorpe was driving his former wife to work when he noticed that he was being followed by another car. Thorpe took evasive action and eventually ended up behind the tailing car, then being driven by the insurance company's agent, Michael Boyd. According to Thorpe and his former wife, Thorpe pulled up alongside Boyd's car, at which point Boyd tried to ram his vehicle into Thorpe's car before driving off, an allegation denied by Boyd. As Thorpe was driving home, he experienced temporary chest pains.

Undeterred, Mutual of Omaha resumed its surveillance of Thorpe one month later, this time employing a professional Pinkerton agent. Thorpe again realized that he was being followed and, as with Boyd, claimed that the Pinkerton agent tried to hit his vehicle. The Pinkerton agent denied trying to hit Thorpe's car. The insurance company never established that Thorpe was working and, to this day, he continues to receive monthly disability payments.

On April 18, 1986, Thorpe brought this action against Mutual of Omaha in the Superior Court of Massachusetts, the case being then removed to federal court on diversity grounds. Thorpe asserted claims for intentional and negligent infliction of emotional distress and for violation of Mass.Gen.L. chs. 93A and 176D. After some discovery, Mutual of Omaha moved for summary judgement on all counts. The district judge granted summary judgment only on the statutory claims, ruling that the "demand letter" required under chapter 93A did not sufficiently specify the injury suffered and damages claimed by Thorpe.

The remaining tort counts were tried before a jury and a different judge in November 1991. At the close of all the evidence, Thorpe voluntarily dismissed his claim for negligent infliction of emotional distress, leaving only the intentional infliction claim to be decided by the jury. Shortly after the jury began deliberations, the foreman notified the trial judge in writing that the jury was deadlocked five to one. Two more notes followed, one describing the hold-out juror as possessing "deep ideological beliefs that will not be changed by any arguments," and the other saying that the hold-out "developed a bias" toward one of the parties "during the course of the trial and deliberations...."

At this point, the trial judge considered declaring a mistrial but, before doing so, posed the following questions to the jury over the objections of Thorpe's counsel:

1. Did Mr. Boyd attempt to ram plaintiff's car?

2. Did Mr. Doucher (the Pinkerton agent) ... attempt to ram plaintiff's car?

The jury promptly answered both questions in the negative. Having obtained these findings, the court discharged the jury and directed "judgment as a matter of law" for Mutual of Omaha, the rubric that has replaced directed verdicts and judgments n.o.v. See Fed.R.Civ.P. 50. This appeal ensued.

Thorpe's statutory claim rests upon Mass.Gen.L. ch. 93A, prohibiting unfair or deceptive acts or practices in the conduct of trade or commerce. ¹ As a prerequisite to suit, chapter 93A requires the submission of a demand letter "reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered." Mass.Gen.L. ch. 93A § 9(3). The twin reasons for the demand letter are, first, to encourage negotiation and settlement and, second, to control the amount of damages recoverable by the plaintiff. Slaney v. Westwood Auto, Inc., 366 Mass. 688, 704, 322 N.E.2d 768, 779 (1975). If a reasonable settlement offer is rejected by the plaintiff, recovery will be limited to the amount of the offer. Id.

The district court in this case found that Thorpe's demand letter was specific about neither the alleged physical harm sustained nor the damages requested. The letter from Thorpe's lawyer, dated February 3, 1984, asserts that the insurance company's "surveillance technics [sic] and extensive harassment" inflicted on Thorpe "severe emotional distress, as well as physical injuries, great pain of body and mind, and mental anguish." There was, however, no identification of any physical injuries and, when Mutual of Omaha wrote back inviting Thorpe's attorney to identify and provide evidence of "any specific injury or harm to your client," its letter went unanswered. Thorpe's letter also did not contain any damage figure which might have given some dimension to his claims.

We agree with the district court that Thorpe's letter did not satisfy the statute. The Massachusetts courts have said that "[i]t is ... essential that the complainant define the injury suffered and the relief demanded in a manner that provides the prospective defendant with 'an opportunity to review the facts and the law involved to see if the requested relief should be granted or denied' and enables him to make 'a reasonable tender of settlement.' " ² Given the failure to specify at least the physical injuries claimed, Thorpe's letter provided no adequate basis for the insurance company to appraise the value of the claim or frame a settlement offer.

Thorpe's second ground for reversal centers on the trial court's submission of questions to the jury on the issue of attempted "ramming" of Thorpe's car. Federal Rule of Civil Procedure 49(a) permits the court to require from the jury "a special verdict in the form of a specific written finding upon each issue of fact." Thorpe claims that the procedure was inappropriate in this case, arguing that the jury did not return a general verdict, that Rule 49 does not provide...