Opinion

Hall v. Progressive Northern Insurance Company

Court
District Court, W.D. Oklahoma
Filed
Aug 4, 2020
Cited by
0 cases
Authority
More cited than 28.6%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

JAMES HALL, )

)

Plaintiff, )

)

v. ) Case No. CIV-20-567-C

)

PROGRESSIVE NORTHERN )

INSURANCE COMPANY, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff was involved in an automobile collision on October 31, 2016. The

tortfeasor in that collision was underinsured to address the injuries Plaintiff allegedly

suffered as a result of the collision. Plaintiff then made demand on Defendant who

provided some underinsured motorist (“UIM”) coverage, but not enough to satisfy

Plaintiff. After the parties were unable to resolve the UIM claims, Plaintiff filed a state

court action raising claims for breach of contract, bad faith, and intentional infliction of

emotional distress (“IIED”). Defendant removed this case and filed the present Motion for

Partial Judgment on the Pleadings premised on Fed. R. Civ. P. 12(c). According to

Defendant, it is entitled to judgment on the pleadings as to Plaintiff’s IIED claim.

The standard for consideration of motions for judgment on the pleadings brought

pursuant to Fed. R. Civ. P. 12(c) follows that outlined in deciding motions brought pursuant

to Fed. R. Civ. P. 12(b)(6). The standard is set forth in the Supreme Court’s decision in

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and the subsequent decision in Ashcroft

v. Iqbal, 556 U.S. 662 (2009). In those cases, the Supreme Court made clear that to survive

a motion to dismiss, a pleading must contain enough allegations of fact which, when taken

as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

Plaintiffs must “nudge[] their claims across the line from conceivable to plausible” to

survive a motion to dismiss. Id. Thus, the starting point in resolving Defendant’s Motion

is to examine the factual allegations supporting the claim Defendant wishes the Court to

dismiss. The Court will accept all well-pleaded factual allegations in the pleadings as true

and construe them in the light most favorable to the nonmoving party. Peterson v. Grisham,

594 F.3d 723, 727 (10th Cir. 2010). However, conclusory allegations need not be accepted

as true. Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).

Plaintiff’s IIED claim is premised on Defendant’s conduct in evaluating his UIM

claim. Specifically, Plaintiff notes a letter sent by Defendant’s counsel to Plaintiff’s

counsel. That letter followed an Examination Under Oath where Plaintiff noted that he

was struggling to obtain documentation to support his loss of income claims. Plaintiff also

noted that he was perhaps behind on filing income tax returns. The letter sent by

Defendant’s counsel referenced these facts. In his response, Plaintiff argues the only valid

explanation for the letter was to menace and/or scare him into submission. On this basis

rests Plaintiff’s IIED claim.

The elements of an IIED claim are “(1) the defendant acted intentionally or

recklessly; (2) the defendant’s conduct was extreme and outrageous; (3) the defendant’s

conduct caused the plaintiff emotional distress; and (4) the resulting emotional distress was

severe.” Computer Publ’ns, Inc. v. Welton, 2002 OK 50, ¶ 7, 49 P.3d 732, 735. The trial

court is charged with acting as gatekeeper in regard to the outrageousness of defendant’s

conduct. In fact, “[o]nly when it is found that reasonable people would differ in an

assessment of this central issue may the tort of [IIED] be submitted to the jury.” Miller v.

Miller, 1998 OK 24, ¶ 34, 956 P.2d 887, 901. To meet his burden, Plaintiff must show that

“the recitation of defendant’s conduct to an average member of the community would

arouse the listener’s resentment against the defendant and would lead the listener to

exclaim ‘Outrageous!’” Welton, 2002 OK 50, ¶ 9, 49 P.3d at 735.

The Court finds that the allegations set forth in Plaintiff’s Petition fail to assert facts

sufficient to support elements 2 or 4. While Plaintiff has raised allegations under which

Defendant’s conduct could be considered distasteful, boorish, or lacking in common

courtesy, he has not pled facts showing the conduct was so extreme and outrageous as to

be beyond all possible bounds of decency. See Eddy v. Brown, 1986 OK 3, ¶ 7, 715 P.2d

74, 77:

Conduct which, though unreasonable, is neither “beyond all possible bounds

of decency” in the setting in which it occurred, nor is one that can be

“regarded as utterly intolerable in a civilized community,” falls short of

having actionable quality. Hurt feelings do not make a cause of action under

the tort-of-outrage rubric.

Even if the Court found a reasonable person would find Defendant’s conduct

outrageous, Plaintiff has wholly failed to allege any facts to demonstrate he suffered

emotional distress or that any such distress was severe. What constitutes severe emotional

distress is restricted. In Zeran v. Diamond Broad., Inc., 203 F.3d 714, 720 (10th Cir. 2000),

the Tenth Circuit upheld the district court’s finding of no IIED claim where the plaintiff

had suffered anxiety attacks, received threatening and abusive telephone calls, sought

medical care, and began taking a prescription drug for his anxiety. Id., at 721. Courts have

repeatedly held that the suffering must be extreme or utterly intolerable in a civilized

society.

“[I]n order to prevent the tort of outrage from becoming a panacea for all of

life’s ills, recovery must be limited to distress that is severe.” In other words,

the distress must be of such a character that “no reasonable person could be

expected to endure it.” Such distress is often accompanied by “shock, illness,

or other bodily harm,” but bodily harm is not a prerequisite for demonstrating

severe emotional distress.

Daemi v. Church’s Fried Chicken, Inc., 931 F.2d 1379, 1389 (10th Cir. 1991) (internal

citations omitted). Plaintiff has pleaded no facts supporting this level of distress. Thus,

even if there were some factual support showing Defendant’s action caused Plaintiff

distress, the claim would still fail as Plaintiff has failed to plead facts demonstrating that

distress rose to the level of severity necessary to be actionable.

Plaintiff requests leave to amend in the event the Court is inclined to grant

Defendant’s Motion. In support, Plaintiff notes that discovery has just begun, and he may

learn of additional facts to support his claim. Even assuming additional discovery could

shed additional light on Defendant’s conduct and push that conduct to the extreme range,

Plaintiff’s claim still fails to demonstrate severe emotional distress. Certainly, the facts

necessary to meet that element are currently in Plaintiff’s possession, yet he has failed to

plead them in his Petition or offer them in his Response. The Court is therefore left to

conclude there are no supporting facts. Accordingly, Plaintiff’s IIED claim will be

dismissed without leave to amend.

For the reasons stated herein, Defendant’s Motion for Partial Judgment on the

Pleadings (Dkt. No. 13) is GRANTED. Plaintiff’s claim for intentional infliction of

emotional distress is DISMISSED with prejudice.

IT IS SO ORDERED this 4th day of August, 2020.

ROBIN J. CAUTHRON

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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