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.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Bailey Aldrich, Senior Circuit Judge]
Before
Cyr and Boudin Circuit Judges,
and Hornby,* District Judge.
Edward J. McCormick, III was on brief for appellant.
Edward S. Rooney, Jr. was on brief for appellee.
* of the District of Maine, sitting by designation.
BOUDIN, Circuit Judge. Appellant Frank Thorpe sued
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,
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
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
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)
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
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
of summary judgment does not preclude a directed verdict on
the same claim. See, e.g., see Voutour v. Vitale 761 F.2d
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,
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.
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,
372 Mass. at 145-46, 355 N.E.2d at 319 (same). See also
Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012, 1021 (1st Cir.
1988).
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