Yoakum v. Hartford Fire Ins. Co.

• Decision Date: 22 July 1996
• Docket Number: No. 21838,21838
• Citation: 923 P.2d 416,129 Idaho 171
• Parties: Richard YOAKUM and Kathleen Yoakum, husband and wife, Plaintiffs-Appellants, v. HARTFORD FIRE INSURANCE CO., a Connecticut corporation, Defendant-Respondent. . Boise, Feb. 1996 Term
• Court: Idaho Supreme Court

Page 416

923 P.2d 416

129 Idaho 171

Richard YOAKUM and Kathleen Yoakum, husband and wife, Plaintiffs-Appellants, v. HARTFORD FIRE INSURANCE CO., a Connecticut corporation, Defendant-Respondent.

No. 21838.

Supreme Court of Idaho.

Boise, Feb. 1996 Term.

July 22, 1996.

Rehearing Denied Oct. 1, 1996.

Risch, Goss & Insinger, Boise, for appellants. James E. Risch argued.

Hawley Troxell Ennis & Hawley, Boise, for respondent. Joseph D. McCollum, Jr. argued.

TROUT, Justice.

This is a tort action brought against an insurer, Hartford Fire Insurance Company (Hartford), for its alleged misconduct in investigating

and litigating a wrongful death claim Richard and Kathleen Yoakum (the Yoakums) brought against the insured, City of McCall (McCall).

I. BACKGROUND

On December 6, 1990, the Yoakums filed a wrongful death cause of action against McCall in connection with the death of their minor son. The youth was killed when the golf course maintenance vehicle he was riding in, the property of McCall, tipped over during a turn.

The Chief of Police in McCall initially requested that an officer of the Idaho State Police, Major Thompson (Thompson), perform an accident investigation and reconstruction. Pursuant to his investigation, Thompson filed a report concluding, among other things, that the golf course vehicle was unsafe to operate at any speed. Thompson based this conclusion primarily upon calculations he had performed using various physical parameters including the vehicle's dimensions, a drag factor, and the radius of the turn the vehicle was negotiating when it tipped over. Thompson did not drive the golf course vehicle as part of his investigation, however, as it was still damaged and McCall had not yet determined whether they would repair it.

Subsequent to completing his report Thompson was placed on administrative leave from the Idaho State Police for reasons unrelated to this case and, during that time, he was hired as an expert witness by the law firm of Cantrill, Skinner, Sullivan & King (Cantrill Skinner). Under McCall's contract of insurance, Hartford had retained Cantrill Skinner to undertake McCall's defense. After Thompson was terminated from the Idaho State Police, he travelled to McCall at the request of Hartford to reexamine the vehicle. After Thompson had the opportunity to actually ride in the newly repaired vehicle, he had cause to review his original calculations. Thompson determined that he had included an incorrect figure in a formula he had used to obtain the vehicle's roll-over speed. A new calculation resulted in a determination that the roll-over speed of the vehicle was approximately twenty-two miles per hour, and not the two or three miles per hour he had originally calculated. As a result, Thompson changed his original opinion that the vehicle was unsafe to operate at any speed.

Following the accident, Hartford's claims manager, Phyllis Sanderson (Sanderson), had also been involved in investigating the Yoakums' claim against McCall. Yoakums contend that, in the course of her investigation and despite being advised not to do so, Sanderson attempted to contact the driver of the golf course vehicle at the time of the accident, a minor, without obtaining his mother's consent. The Yoakums also maintain that Sanderson threatened to terminate the driver's insurance coverage and represented to the driver's mother that Mr. Yoakum had told people that he was going to retire on the insurance proceeds from the suit against McCall. After discovering Thompson's change of opinion and Sanderson's activities, the Yoakums accepted Hartford's offer of judgment for $150,000 on January 3, 1992, and a final judgment was then entered.

On August 17, 1992, the Yoakums filed this action against Hartford alleging that the insurer, through its agents, committed wrongful and even criminal acts in its investigation of their wrongful death claim. Included in the Yoakums' claims against Hartford is a 42 U.S.C. § 1983 civil rights cause of action, a racketeering claim, and claims based upon the torts of slander, intentional infliction of emotional distress, outrage, negligence, spoliation of evidence, liability for intended consequences, and intentional harm to a property interest. The Yoakums have also asserted private causes of action for Hartford's alleged violation of various criminal statutes relating to the use of Thompson as a paid expert witness.

The district court granted Hartford's motion to dismiss, dismissing most of the Yoakums' claims pertaining to Hartford's alleged violations of the penal statutes including a claim for obstruction of justice. The Yoakums afterward amended their complaint and the court subsequently granted Hartford's motion for summary judgment on the

remainder of the Yoakums' claims. In its order granting summary judgment, the district court relied on several grounds: that there could be no bad faith cause of action against an insurer by a third party; that the Yoakums' claims are barred by the judgment entered in the underlying wrongful death action; that without a showing of special damages the slander cause of action had no merit; and that the torts of intentional infliction of emotional distress and outrage require the plaintiffs to show physical manifestation of distress or subjective testimony, neither of which were evidenced in the record. The Yoakums now appeal from both decisions rendered in Hartford's favor.

II. STANDARD OF REVIEW

This appeal requires us to review both the district court's ruling to dismiss certain causes of action under I.R.C.P. 12(b)(6) and its subsequent order granting Hartford's motion for summary judgment under I.R.C.P. 56(c). When reviewing an order dismissing a cause of action pursuant to I.R.C.P. 12(b)(6), the non-moving party is entitled to have all inferences from the record viewed in its favor. Orthman v. Idaho Power Co., 126 Idaho 960, 962, 895 P.2d 561, 563 (1995) (citing Miles v. Idaho Power Co., 116 Idaho 635, 637, 778 P.2d 757, 759 (1989)). After drawing all inferences in the non-moving party's favor, we must then ask whether a claim for relief has been stated. Id.

When reviewing an order granting summary judgment, however, we must determine whether " 'the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' " Curtis v. Firth, 123 Idaho 598, 609, 850 P.2d 749, 760 (1993) (quoting I.R.C.P. 56(c)). We must liberally construe the record in a light most favorable to the party opposing the motion, drawing all inferences and conclusions in that party's favor, and if reasonable people could reach different conclusions or draw conflicting inferences, then an order granting summary judgment must be reversed. Friel v. Boise City Hous. Auth., 126 Idaho 484, 485, 887 P.2d 29, 30 (1994). If, however, the evidence reveals no genuine issue as to any material fact, then all that remains is a question of law over which this Court exercises free review. Id.

In this case, the district court granted Hartford's motion to dismiss the Yoakums' causes of action for Hartford's alleged violation of certain penal statutes. The court later granted Hartford's motion for summary judgment on the Yoakums' remaining claims. Although our standards for reviewing the district court's dismissal of certain of the Yoakums' claims and the court's granting of summary judgment to Hartford on the remainder are similar, there are important differences. On a motion for summary judgment, the burden is always upon the moving party to prove the absence of a genuine issue of material fact. Petricevich v. Salmon River Canal Co., 92 Idaho 865, 869, 452 P.2d 362, 365 (1969) (citations omitted). If, however, the basis for a properly supported motion is that no genuine issue of material fact exists with regard to an element of the non-moving party's case, it is incumbent upon the non-moving party to establish an issue of fact regarding that element. Farm Credit Bank of Spokane v. Stevenson, 125 Idaho 270, 272-73, 869 P.2d 1365, 1367-68 (1994). No similar burden on the non-moving party exists, however, when a motion to dismiss under I.R.C.P. 12(b)(6) is considered. A motion to dismiss under I.R.C.P. 12(b)(6) will not be granted, or upheld by this Court, unless the non-moving party would be unable to prove any conceivable set of facts in support of its claim. Orthman, 126 Idaho at 962, 895 P.2d at 563.

III. PRIVATE CAUSE OF ACTION FOR VIOLATION OF CRIMINAL STATUTES

The Yoakums argue that Hartford's alleged obstruction of justice, I.C. § 18-705, and violations of the Idaho Bribery and Corrupt Influences Act, I.C. §§ 18-1351 to -1362, should provide them with a private cause of action. In White v. Unigard Mut. When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.

                Ins. Co., 112 Idaho 94, 730 P.2d 1014 (1986), we analyzed whether a private right of action against an insurer exists under the Unfair Claims Settlement Practices Act.  112 Idaho at 100-01, 730 P.2d at 1020-21.   Recognizing that in certain cases statutory law establishes rights, defines wrongs and implies remedies, we quoted the Restatement (Second) of Torts § 874A which provides
                

Id. (emphasis in original). We noted in White that the absence of an express civil remedy under the Unfair Claims Settlement Practices Act was not automatically fatal to the plaintiff's tort action, although we held there that an implied private right of action...