concurring specially.
Considering fully the testimony of plaintiff and her daughter and giving berth to reasonable inferences, I concur in the conclusion that defendant is not entitled to a judgment notwithstanding the mistrial. There are several aspects of the case which are not discussed in the majority opinion but which bear significantly on whether the evidence failed as a matter of law to show the tort of intentional infliction of emotional distress.
First is the element of duty. The majority opinion and many of the cases which precede it focus on the second element, that of breach, determining whether or not the conduct and words of the defendant were so egregious as to constitute breach or at least be subject to such a finding by the trier of fact. See, e.g., Moses v. Prudential Ins. Co., 187 Ga. App. 222 (369 SE2d 541) (1988); Kornegay v. Mundy, 190 Ga. App. 433 (1) (379 SE2d 14) (1989); Quinones v. Maier & Berkele, 192 Ga. App. 585, 587 (1) (a) (385 SE2d 719) (1989); S & W Seafoods Co. v. Jacor Broadcasting &c., 194 Ga. App. 233 (390 SE2d 228) (1990). But the first question is, what was the defendant’s legal duty towards plaintiff, and from whence did it arise? That is to say, one must look at the relationship and respective roles of the parties.
In several cases, the court recognized that the duty arose from the defendant’s particular status vis-a-vis the plaintiff. See, e.g., *327Dunn v. Western Union Telegraph Co., 2 Ga. App. 845 (59 SE 189) (1907); Greer v. Medders, 176 Ga. App. 408, 409 (336 SE2d 328) (1985); Anderson v. Chatham, 190 Ga. App. 559, 567 (8) (379 SE2d 793) (1989); Gordon v. Frost, 193 Ga. App. 517, 522 (1) (388 SE2d 362) (1989). Also, Moses, cited earlier, referred to “the relationship of the parties” as being instrumental. The court either found or assumed for the purpose of the argument that the businessman, a former supervisor of plaintiff’s, had a duty not to intentionally inflict emotional distress.
Decided October 4, 1990 Rehearing denied October 19, 1990. Reinhardt & Whitley, Glenn Whitley, for appellant. Perry, Moore & Studstill, Daniel L. Studstill, for appellee.What we have here is another type of special relationship. The disputing parties are not just two members of the general public. Instead, the alleged tortfeasor was the insurer’s representative, with a duty to process the client/insured’s claim fairly according to the contract. The jury could find that defendant owed a duty arising out of the business relationship such that his conduct went so far beyond the norms of acceptable business behavior that it was “ ‘sufficiently extreme and outrageous to result in liability,’ ” S & W Seafoods Co., supra at 237, quoting from Restatement of Torts (Second).
Secondly, in determining whether a jury could find a breach, “[t]he severity of the emotional distress allegedly produced by the . . . conduct is also a factor in determining liability for [this tort].” Quinones, supra at 587, and Anderson, supra at 567. It is not merely a factor in establishing damages. Here, there was evidence that as much as a week later, plaintiff was suffering from the effects of the experience to the degree that she sought and obtained medical treatment.
Finally, I concur, having considered the above and concluding that the denial of judgment notwithstanding mistrial was correct because the denials of directed verdict were proper. The majority, on the other hand, holds that the denial of judgment was proper solely on the strength of its consistency with the directed verdict rulings. To the contrary, however, they had to be correct in order for the judgment of denial to be correct. Simmons v. Watson, 221 Ga. 765, 767 (2) (147 SE2d 322) 1966).