Metropolitan Life Insurance Co. v. McCarson

This cause is before us because the decision of the district court in Metropolitan Life Insurance Co. v. McCarson, 429 So.2d 1287 (Fla. 4th DCA 1983), directly and expressly conflicts with a decision of another district court, Gmuer v. Garner, 426 So.2d 972 (Fla. 2d DCA 1982). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, .and we approve in part and quash in part the decision of the Fourth District.

McCarson was issued a group insurance policy by Metropolitan Life which covered employees of his paint and body shop including his wife. The next year, Mrs. McCarson became incapacitated with Alzheimer’s disease. Metropolitan stopped payment of benefits for her, claiming that the condition had been preexisting and that the failure to disclose it voided her coverage. McCarson brought suit; Metropolitan was found to be in breach of contract and ordered to provide coverage pursuant to the contract. Later it became necessary for Mrs. McCarson to have round-the-clock nursing, for which Metropolitan was liable under the terms of its contract until the policy lapsed or Mrs. McCarson became eligible for Medicare. After requesting proof of ineligibility for Medicare, and receiving no response, Metropolitan eventually discontinued payments and the round-the-clock nursing ceased. McCarson brought suit to enforce the policy provisions, but in the meantime, Mrs. McCarson was removed from her home and placed in a total care nursing facility where her condition deteriorated remarkably. A few months later she died of a heart attack. Medical testimony indicated that the stress of her new surroundings probably brought about her demise. McCarson amended his original complaint and, as Lucille’s personal representative, added a count for wrongful death on the theory that Metropolitan’s failure to fulfill the terms of the contract had been a willfull infliction of emotional distress upon Mrs. McCarson which had thereby caused her death. A jury awarded McCarson medical costs, $200,000 for the emotional distress suffered by Mrs. McCar-son, and $250,000 for her wrongful death. The trial court struck the award for Mrs. McCarson’s emotional distress but upheld the remainder of the award. Metropolitan appealed but the Fourth District Court of Appeal affirmed the award, finding a cause of action for intentional infliction of emotional distress, sufficient to support the cause of action for wrongful death.

We approve the Fourth District’s decision insofar as it states that Florida recognizes the tort of intentional infliction of emotional distress. We have skirted that issue in previous cases, finding it not to be directly before the Court. See e.g., LaPorte v. Associated Independents, Inc., 163 So.2d 267 (Fla.1964); Slocum v. Food Fair Stores, 100 So.2d 396 (Fla.1958); Kirksey v. Jernigan, 45 So.2d 188 (Fla. 1950). The thorough discussion and analysis of the Fourth District below shows that four of the five district courts of appeal have recognized that tort. Dominguez v. Equitable Life Assurance Society, 438 So.2d 58 (Fla. 3d DCA 1983); Scheuer v. Willie, 385 So.2d 1076 (Fla. 4th DCA 1980); Food Fair, Inc. v. Anderson, 382 So.2d 150 (Fla. 5th DCA 1980); Ford Motor Credit Co. v. Sheehan, 373 So.2d 956 (Fla. 1st DCA), cert. dismissed, 379 So.2d 204 (Fla. 1979). Only the Second District has failed to recognize the availability of an independent cause of action for intentional infliction of emotional distress. Gmeur v. Garner. We are in agreement with the majority and so disapprove the decision in Gmeur.

The Fourth District joined with the First and Fifth in adopting Section 46, Restatement (Second) of Torts (1965) as the appropriate definition of the tort. Nonetheless, the Fourth District did not conform its findings to the comments explaining the application of this definition:

d. Extreme and outrageous conduct . It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

g. The conduct, although it would otherwise be extreme and outrageous, may be privileged under the circumstances. The actor is never liable, for example, where he has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress.

Restatement (Second) of Torts § 46 (1965). In light of the verdict in McCarson’s favor, we must assume all disputes of fact were resolved and all reasonable inferences were drawn in his favor. Nonetheless, looking at the facts in the light most favorable to him, the facts as a matter of law are not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” Rather, the insurance company according to the terms of the policy had the right to demand proof of ineligibility for Medicare. Although this demand and the withholding of further benefits had tragic results, and although we must assume from the jury’s verdict that it found Metropolitan was in reckless disregard of the potential for such tragedy, Metropolitan did no more than assert legal rights in a legally permissible way. As such, Metropolitan’s actions are “privileged under the circumstances.”

We therefore quash the decision of the district court insofar as it holds that Lucille McCarson had a cause of action for intentional infliction of emotional distress sufficient to support Mr. McCarson’s suit for wrongful death.

Because the district court found the wrongful death action to be supported by the cause of action for intentional infliction of emotional distress, it did not address the counts alleging breach of contract or bad faith dealing. In the interests of judicial economy, we will do so now.

We are well aware that, prior to this Court’s decision in VanBibber v. Hartford Accident & Indemnity Insurance Co., 439 So.2d 880 (Fla.1983), injured parties entitled to benefits were considered intended third-party beneficiaries to liability insurance policies and, as such, were entitled to enforce the policy directly against the insurer. This analysis was justified by the adversarial relationship between the insured and the injured party and the insurance company’s status as the real party in interest from whom the injured party would be collecting for his damages once liability was proven. See e.g., Shingleton v. Bussey, 223 So.2d 713 (Fla.1969). Liability insurance provides indemnity against liability. In the usual liability policy, the insuror is bound to pay damages for bodily injury or property damage for which any covered person becomes legally liable, up to the applicable policy limits, because of an accident and such damages are directly payable to the injured party. To that extent, the insurer contracts to bear the insured’s financial responsibility to the intended third-party beneficiary.

However, this analysis is not applicable to the policy here before us, which provides indemnity against loss. The insurance contract into which Mr. McCarson entered promised to indemnify him for any covered medical expenses he incurred on behalf of his covered dependents, including Lucille. The insurer did not relieve him of any financial responsibility for the payment of medical expenses incurred. No benefits were ever payable directly to her. Neither were her interests adverse to the insured’s; on the contrary, they both were adversely aligned against the insurance company. Thus, because she reaped no direct benefit, and because the insured was in a position to protect her interests, she was at best an incidental third-party beneficiary of the contract. It is axiomatic in contract law that an incidental beneficiary cannot enforce the contract. See J. Calmari & J. Perillo, Contracts §§ 17-2, 17-6 (2d ed. 1977). Therefore, Lucille McCarson would not have been able to maintain a cause of action either for breach of contract or for bad faith dealing on the contract. Florida’s Wrongful Death Act, in section 768.19, Florida Statutes (1981), requires, as a condition precedent to bringing the action for wrongful death, that the decedent have a cause of action on which she could have brought suit had she survived. Such is not the case here on the facts pleaded. Mr. McCarson’s wrongful death claim must be disallowed.

Accordingly, the decision of the district court is approved in part and quashed in part and the case is remanded to the trial court for entry of judgment not inconsistent with this opinion.

It is so ordered.

OVERTON, ALDERMAN and MCDONALD, JJ., concur.

BOYD, C.J., and SHAW, J., concur in part and dissent, in part with opinions.