Thorpe v. Mutual

• Court: Court of Appeals for the First Circuit
• Decided: January 29, 1993
• Docket: 91-2306
• Status: Published

Opinion

USCA1 Opinion

January 29, 1993
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 91-2306

                                    FRANK THORPE,

                                Plaintiff, Appellant,

                                          v.

                          MUTUAL OF OMAHA INSURANCE COMPANY,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Bailey Aldrich, Senior Circuit Judge]
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                                        Before

                            Cyr and Boudin Circuit Judges,
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                             and Hornby,* District Judge.
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            Edward J. McCormick, III was on brief for appellant.
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            Edward S. Rooney, Jr. was on brief for appellee.
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        * of the District of Maine, sitting by designation.

BOUDIN,  Circuit  Judge.   Appellant  Frank  Thorpe sued
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            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,

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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,

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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

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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,
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            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

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                 1Thorpe also invoked chapter 176D prohibiting unfair and
            deceptive insurance practices, but  that statute provides  no
            private  cause  of  action and  is  enforceable  only by  the
            commissioner of insurance.  See Dodd v. Commercial Union Ins.
                                        ___ ____    _____________________
            Co., 373  Mass.  72,  365  N.E.2d  802  (1977)  (chapter  93A
            ___
            encompasses unfair and deceptive insurance practices).

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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

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                 2Spring  v. Geriatric  Authority of  Holyoke, 394  Mass.
                  ______     ________________________________
            274, 288,  475 N.E.2d  727, 736 (1985)  (quoting Slaney,  366
                                                             ______
            Mass. at 704-05, 322 N.E.2d at 779).

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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  for submission of  questions to  a

            deadlocked  jury, and that one  of the jurors  was biased and

            therefore incapable of answering the questions impartially.

                 The  first   two  contentions  were   not  made   below.

            Arguments not made to  the district court in civil  cases are

            foreclosed on  appeal unless their inclusion would "virtually

            . . . insure appellant's success" and exclusion would  result

            in  a "gross  miscarriage  of justice."    Jones v.  City  of
                                                       _____     ________

            Somerville, 735  F.2d 5,  7  (1st Cir.  1984).    Rule  49(a)
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            explicitly  permits  special  verdicts  in  lieu  of  general

            verdicts, compare  Fed.  R. Civ.  P. 49(b)  (providing for  a
                      _______

            general verdict with interrogatories), and while Rule 49 does

            not  specifically address  the submission  of questions  to a

            jury  after a  deadlock, neither  does it  expressly preclude

            this practice.  Patently, there was no clear violation of the

            Federal Rules or any miscarriage of justice.

                 Thorpe's third  argument,  properly made  at  trial  and

            preserved  for  appeal,  is  that  it  was  error  to  submit

            questions to the jury  because one of the jurors  was biased.

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The short answer is that the jury foreman's statements do not

            establish  or even  strongly  suggest bias  in the  technical

            sense that would require  removal of the hold-out juror  or a

            mistrial.   Compare, e.g., United States v.  Heller, 785 F.2d
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            1524 (11th Cir. 1986) (racial  and religious slurs uttered by

            jury members).  For all that appears, the hold-out juror came

            to  a  firm conviction  based on  the  evidence at  trial and

            refused  to budge.   What were  "ideological beliefs"  to the

            foreman  may be "personal values"  to the hold-out.   At most

            Thorpe  might have been entitled to a voir dire inquiry; none

            was sought; and  the situation certainly did not  require the

            trial judge to order one sua sponte.
                                     __________

                 Lastly, Thorpe challenges the  district court's entry of

            judgment  for Mutual  of Omaha  on the  claim of  intentional

            infliction of  emotional distress.  In  directing judgment on

            this  count,   the   trial  court   properly  excluded   from

            consideration testimony  on the subject of  "car ramming," as

            this  issue was resolved  by the jury  in favor of  Mutual of

            Omaha.   Still, Thorpe  contends that the  remaining evidence

            elicited  at trial was sufficient  to submit to  the jury his

            claim for intentional infliction of emotional distress.

                 Thorpe  first  points out  that  a  different judge  had

            earlier denied Mutual of  Omaha's motion for summary judgment

            on this claim, suggesting "reasonable minds could differ" and

            the jury should therefore decide the matter.  Cf. Anderson v.
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Liberty Lobby, Inc., 477  U.S. 242, 251-52 (1986).   A denial
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            of summary judgment  does not preclude a directed  verdict on

            the same  claim.  See, e.g.,  see Voutour v. Vitale  761 F.2d
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            812, 822-23  (1st Cir.  1985),  cert. denied,  474 U.S.  1100
                                            ____________

            (1986).  Evidence adduced at  trial will almost always differ

            in  degree, force,  and  quantity from  that  submitted on  a

            motion  for summary judgment.   The earlier denial of summary

            judgment  standing  alone  in  no  way  impeaches  the  later

            directed verdict.

                 Turning to the evidence  at trial, we note first  that a

            plaintiff  claiming  intentional   infliction  of   emotional

            distress  under  Massachusetts  law must  establish  that the

            actor  intended  to inflict  emotional  distress  or knew  or

            should  have known  that  emotional distress  was the  likely

            result  of his  conduct;  that the  conduct was  "extreme and

            outrageous," "was beyond all possible bounds of decency," and

            was "utterly intolerable in  a civilized community;" that the

            actions were  the cause of the plaintiff's distress; and that

            the  emotional   distress  sustained  by  the  plaintiff  was

            "severe"  and of a nature that no reasonable person "could be

            expected to endure."   Agis v. Massachusetts,  377 Mass. 140,
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            144-45,  355 N.E.2d  315, 318-19  (1976).   In our  view, the

            surveillance  did not  even  arguably rise  to  the level  of

            "extreme and outrageous conduct,"  and the issue was properly

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withdrawn from the jury.3   Once the claims of  attempted car

            ramming are removed from  dispute, the behavior complained of

            amounts to not much more  than an insurance company's efforts

            to determine the  activities of a  claimant whose receipt  of

            benefits   was   conditioned   on   his   total   disability.

            Investigations  of  this  sort  are  commonplace  and  to  be

            expected where disability  claims are involved,  particularly

            where, as here, the claimant was from all outward appearances

            often away from home during the day.  However distasteful the

            notion of surveillance, Mutual of Omaha's conduct in relation

            to  Thorpe  was  not  "extreme  or  outrageous"  or  "utterly

            intolerable in a civilized society."

                 Affirmed.
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                 3Although the issue is  one which a jury is  well suited
            to  decide,  the  judge  is   still  expected  to  apply  the
            traditional test--could a reasonable jury find the conduct to
            violate the tort standard--in  deciding whether to submit the
            issue to the  jury.  See Boyle v. Wenk, 378  Mass. 592, 598 &
                                 ___ _____    ____
            n.  11,  392  N.E.2d  1053,  1057  &  n.  11  (1979)  (citing
            Restatement (Second) of Torts   46,  comment h (1965)); Agis,
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            372  Mass. at  145-46, 355 N.E.2d  at 319  (same).   See also
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            Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012, 1021 (1st Cir.
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            1988).

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