Travelers Insurance v. Smith

991 S.W.2d 591, 338 Ark. 81, 1999 Ark. LEXIS 310, 1999 WL 374501
CourtSupreme Court of Arkansas
DecidedJune 10, 1999
Docket98-433
StatusPublished
Cited by24 cases

This text of 991 S.W.2d 591 (Travelers Insurance v. Smith) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Travelers Insurance v. Smith, 991 S.W.2d 591, 338 Ark. 81, 1999 Ark. LEXIS 310, 1999 WL 374501 (Ark. 1999).

Opinions

Ray Thornton, Justice.

This appeal is from a jury verdict in favor of appellees, Anna F. Smith, Roseann McKibben, and Sue Ellen Smith, the widow and daughters of the late Alva Smith, against appellants, Travelers Insurance Company and their adjuster, Dan Ray, the workers’ compensation carrier for Mr. Smith’s employer. The trial court submitted to the jury the question whether appellants committed the tort of outrage by interfering with the rights of appellees to promptly bury their family member in accordance with their wishes. The jury returned a verdict for the Smith family and appellants sought a judgment notwithstanding the verdict, on the basis that there was no substantial evidence to support the jury’s findings. The trial court denied the motion and appellants bring this appeal from that ruling and two other assignments of error. This case was certified to us pursuant to Ark. Sup. Ct. R. 1-2(a)(7), as a second or subsequent appeal following an appeal that has been decided in the supreme court.1 On review, we find no reversible error and affirm.

On Friday, August 19, 1994, Alva Smith, a truck driver for Gerald Johnson Trucking, died in a one-vehicle accident on Highway 412 in Springdale, in the course and scope of his employment. Travelers was notified of the accident and assigned Dan Ray to the claim on the day of the accident. The Arkansas State Police investigated the accident and determined that the cause of death was massive head trauma suffered as a result of the accident, a conclusion concurred in by the Washington County Coroner’s office. Appellants were notified of the cause of death on the day of the accident, and Ray was told when he inquired about an autopsy that the county would not be requesting one because the cause of death was clear.

Mr. Smith’s body was taken to Sisco Funeral Chapel in Springdale. Mrs. Anna Smith, the wife of the deceased, asked the funeral home to handle the service and authorized them to contact appellants about insurance to pay for the funeral. The family chose a traditional funeral, with a full service and visitation, based on assurances from the funeral home that, notwithstanding Mr. Smith’s injuries, the body could be made presentable for the open-casket funeral they desired. An employee of the funeral home contacted Travelers on Friday, August 19, and was told that the company would have to have an autopsy to determine the cause of death, because they thought a pre-existing condition, such as a heart problem, had caused Mr. Smith’s death.

The funeral home advised the family that appellants were denying insurance benefits until they had an autopsy. Mrs. Smith and Ms. McKibben, who planned the funeral, were without funds to pay for the funeral themselves without the anticipated insurance benefits, so Mrs. Smith reluctantly agreed to the autopsy if that was required. The funeral home director testified at trial that embalming hinders the ability to get clear results in an autopsy, and that they believed that if an autopsy had been ordered, it was illegal to proceed with embalming the body, so it was not embalmed, but placed in refrigeration sometime Friday afternoon. The funeral home immediately attempted to locate a pathologist who would perform the autopsy for Travelers, but was unable to find one. They then notified appellants that they had been unsuccessful in getting an autopsy and that it would now be Travelers’ responsibility to see that one was performed if they wanted one.

Appellant Ray called the Washington County Coroner’s office several times over the next few days, again requesting that the county perform an autopsy. When told that an autopsy was not necessary in every case, and specifically not in this case, he suggested that the coroner was not doing his job. Although Ray had not spoken to any of the Smith family members, he led the coroner to believe that he was expressing the desire of the family to have an autopsy, and told him that an autopsy was required in order for the family to bury Mr. Smith.

Appellees contacted Mr. Smith’s attorney, Phillip Moon, who attempted to facilitate the funeral arrangements. On Friday, Moon was told by Ray that the condition for benefits being paid would be an autopsy, notwithstanding that the embalming could not take place and the funeral could not proceed without the approval of appellants. Ray continued to refuse to authorize the embalming of the body even after he was notified that Mrs. Smith had consented to the autopsy. On Monday, when the situation was still not resolved, Moon attempted to contact Ray’s superiors at Travelers without response. Ray could not be reached Monday or Tuesday, being either out of the office or on vacation. Eventually Moon handed the problem back to the funeral home. On Wednesday, when the funeral home contacted Ray, he continued to insist that any action be postponed, stating that Travelers would not pay for the funeral unless there was an autopsy done. Unfortunately, neither Ray nor Travelers took any steps to see that an autopsy was performed; rather, as the funeral home director testified, Ray indicated that he expected someone else to see that the procedure was done.

The funeral home then got in touch with a Traveler’s field representative in Oklahoma City who later authorized the burial of Mr. Smith. The embalming of the body did not begin until Wednesday afternoon, some five days following the death. Because of the delay in the embalming process and the deterioration of the body, the body was not deemed presentable for an open casket funeral. There was no visitation at the funeral home to view the body, and the funeral expenses included refrigeration charges for keeping the body for five additional days prior to embalming. The funeral was finally held on Friday, one week following Mr. Smith’s death. Travelers ultimately did pay for six thousand dollars of the funeral expenses, as well as widow’s benefits to Mrs. Smith under the Workers’ Compensation Act. No autopsy was ever performed on the body.

Mrs. Smith and her two stepdaughters brought suit against the insurance company and the adjuster alleging the tort of outrage, or intentional infliction of emotional distress. The jury returned a verdict for the Smith family, awarding damages to each woman of $20,000.00 for outrage, and $125,000.00 for punitive damages, as well as $87.50 each awarded to Mrs. Smith and Ms McKibben for deceit. Travelers Insurance and Dan Ray, jointly and severally liable for these amounts, bring this appeal, raising three points of error. They allege first that there was no substantial evidence to support the jury’s findings that they committed the tort of outrage, specifically because any contact by Travelers or Dan Ray was with the funeral home and the attorney, rather than directly with the Smith family; that the trial court erred in instructing the jury that any statement made by Ray to the funeral home should be treated as having been made to the Smith family; and that the trial court erred in allowing the introduction of an inter-office memorandum authored by Ray’s supervisor concerning his lack of candor with regard to investigation of another claim.

Substantial Evidence to Support the Jury’s Verdict

Appellants argue on their first point that the trial court erred in failing to direct a verdict in their favor because there was no substantial evidence to support the jury’s conclusion that appellants committed the tort of outrage.

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Bluebook (online)
991 S.W.2d 591, 338 Ark. 81, 1999 Ark. LEXIS 310, 1999 WL 374501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/travelers-insurance-v-smith-ark-1999.