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