Present: All the Justices
GLENN MCDERMOTT, M.D.
v. Record No. 992028 OPINION BY JUSTICE BARBARA MILANO KEENAN
June 9, 2000
WILLIAM REYNOLDS
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
In this appeal, we consider whether Code § 8.01-220 bars a
plaintiff's action against his former wife's paramour for
intentional infliction of emotional distress, when the conduct
alleged would support an action for alienation of affection, a
cause of action specifically prohibited by the statute.
Glenn R. McDermott filed a motion for judgment against
William Reynolds for intentional infliction of emotional
distress based on Reynolds' alleged conduct in maintaining an
adulterous relationship with McDermott's wife. Reynolds
demurred to the motion for judgment, asserting that McDermott's
action was "essentially one for alienation of affection" and,
thus, was barred by Code § 8.01-220.
After hearing oral argument, the trial court concluded that
McDermott's action was "clearly a case of alienation of
affection" that was barred by Code § 8.01-220. The trial court
entered final judgment sustaining the demurrer and dismissing
the motion for judgment.
On appeal, McDermott argues that his action for intentional
infliction of emotional distress is separate and distinct from
an action for alienation of affection. He contends that Code
§ 8.01-220 does not prohibit his action simply because the
conduct on which his action is based has "overtones" of
alienation of affection. McDermott also asserts that his
damages arose from Reynolds' intentional infliction of emotional
distress, not from Reynolds' alienation of the affection of
McDermott's wife. We disagree with McDermott's arguments.
A demurrer will be sustained if the motion for judgment,
considered in the light most favorable to the plaintiff, fails
to state a valid cause of action. W.S. Carnes, Inc. v. Board of
Supervisors, 252 Va. 377, 384, 478 S.E.2d 295, 300 (1996); see
Dray v. New Market Poultry Products, Inc., 258 Va. 187, 189-90,
518 S.E.2d 312, 312-13 (1999); Mortarino v. Consultant Eng'g
Serv., Inc., 251 Va. 289, 295, 467 S.E.2d 778, 782 (1996);
Luckett v. Jennings, 246 Va. 303, 307, 435 S.E.2d 400, 402
(1993). In reviewing a trial court's judgment sustaining a
demurrer, we will consider as true the facts alleged in the
motion for judgment, the facts impliedly alleged therein, and
the reasonable factual inferences that can be drawn from the
facts alleged. See Delk v. Columbia/HCA Healthcare Corp., 259
Va. 125, 129, 523 S.E.2d 826, 829 (2000); Breeding v. Hensley,
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258 Va. 207, 211-12, 519 S.E.2d 369, 371 (1999); Moore v.
Maroney, 258 Va. 21, 23, 516 S.E.2d 9, 10 (1999).
As alleged in the motion for judgment, in December 1994,
McDermott received a telephone call from Reynolds' wife
informing him that she had just followed Reynolds and Flordeliza
McDermott to a motel. McDermott had been married to Flordeliza
for 18 years and they had three children. McDermott confronted
Reynolds about his relationship with Flordeliza and demanded
that Reynolds cease the adulterous relationship. Instead of
ending the relationship, Reynolds "flaunted it outwardly."
Reynolds' conduct caused severe embarrassment and
humiliation to McDermott and his three children. McDermott also
alleged that by refusing his requests and continuing to "flaunt"
the relationship, Reynolds acted maliciously and with the intent
to cause McDermott severe emotional distress. As a result of
his emotional distress, McDermott experienced sleeplessness,
loss of weight, and interference with the performance of his
duties as a physician. Further, Reynolds' conduct caused the
"break up" of McDermott's family and required McDermott and his
three children to seek counseling, resulting in financial losses
to McDermott.
We first recognized the tort of intentional infliction of
emotional distress in Womack v. Eldridge, 215 Va. 338, 210
S.E.2d 145 (1974). We held that a plaintiff may recover damages
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for emotional distress resulting from a non-tactile tort if he
alleges and proves by clear and convincing evidence that: (1)
the wrongdoer's conduct is intentional or reckless; (2) the
conduct is outrageous and intolerable; (3) the wrongful conduct
and the emotional distress are causally connected; and (4) the
resulting distress is severe. 215 Va. at 342, 210 S.E.2d at
148; accord Delk, 259 Va. at 136, 523 S.E.2d at 833; Jordan v.
Shands, 255 Va. 492, 498-99, 500 S.E.2d 215, 218-19 (1998);
Russo v. White, 241 Va. 23, 26, 400 S.E.2d 160, 162 (1991).
The statute at issue in this appeal, Code § 8.01-220,
provides:
A. Notwithstanding any other provision of law to the
contrary, no civil action shall lie or be maintained
in this Commonwealth for alienation of affection,
breach of promise to marry, or criminal conversion
upon which a cause of action arose or occurred on or
after June 28, 1968.
B. No civil action for seduction shall lie or be
maintained where the cause of action arose or accrued
on or after July 1, 1974.
The fact that Code § 8.01-220 does not contain a reference
to the tort of intentional infliction of emotional distress does
not affect our analysis, because that tort encompasses many
types of conduct unrelated to the causes of action specified in
the statute. We conclude that when the General Assembly enacted
Code § 8.01-220, it manifested its intent to abolish common law
actions seeking damages for a particular type of conduct,
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regardless of the name that a plaintiff assigns to that conduct.
Therefore, in determining whether an action is barred by Code
§ 8.01-220, we consider the conduct alleged in the plaintiff's
motion for judgment.
The essential basis of McDermott's claim is that the
defendant had an adulterous relationship with McDermott's wife,
which he continued in an open and notorious manner after being
confronted by McDermott. This alleged conduct is precisely the
type of conduct that the General Assembly intended to exclude
from civil liability when it enacted Code § 8.01-220. Thus, the
fact that McDermott labels his claim as intentional infliction
of emotional distress and recites the elements of that tort in
support of his action does not shield the action from the
statutory bar. We must consider the nature of the cause of
action pleaded, not merely its form, in determining whether a
plaintiff has stated a cause of action that will permit recovery
of damages for the conduct alleged. See Philip Morris Inc. v.
Emerson, 235 Va. 380, 407, 368 S.E.2d 268, 282-83 (1988).
We note that our conclusion is in accord with the decisions
of a majority of jurisdictions that have considered claims for
intentional infliction of emotional distress with reference to
statutes substantially similar to Code § 8.01-220. The
rationale underlying these decisions of our sister states, like
our decision here, is based on the legislative intent manifested
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in these statutes to remove conduct of this nature from civil
liability. See, e.g., Speer v. Dealy, 495 N.W.2d 911, 914-15
(Neb. 1993); Strock v. Pressnell, 527 N.E.2d 1235, 1242 (Ohio
1988); Wilson v. Still, 819 P.2d 714, 716 (Okla. 1991); Koestler
v. Pollard, 471 N.W.2d 7, 9-10 (Wis. 1991).
Our decision today reflects a disagreement with the
analysis and result reached in Raftery v. Scott, 756 F.2d 335
(4th Cir. 1985). There, the United States Court of Appeals for
the Fourth Circuit considered an action in which a divorced
spouse alleged that his former wife intentionally inflicted
emotional distress on him by attempting to destroy his
relationship with his son. The former wife sought dismissal of
the action, contending that it essentially alleged that she
caused an alienation of the child's affection for his father,
and that such actions are barred by Code § 8.01-220. Id. at
338.
The Court of Appeals held that the facts of the case
independently supported a claim for intentional infliction of
emotional distress, although the conduct alleged had "overtones
of affection alienation." 756 F.2d at 339. The Court stated
that the two torts have different characteristics and require
different proof, citing as an example the requirement for
intentional infliction of emotional distress that the infliction
be intentional and something more than a simple aggravation.
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756 F.2d at 340. Thus, the Court of Appeals focused its
analysis on the elements of the two torts, rather than on the
conduct asserted by the plaintiff.
In contrast, we have based our analysis on a defendant's
alleged conduct because that methodology allows us to consider
the legislative intent manifested in Code § 8.01-220. By using
this analysis, we effectuate that intent and foreclose a revival
of the abolished tort of alienation of affection asserted in the
guise of an action for intentional infliction of emotional
distress.
For these reasons, we will affirm the trial court's
judgment.
Affirmed.
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