dissenting:
I respectfully dissent.
The majority has purported to analyze the Illinois law of intentional infliction of severe emotional distress without so much as mentioning the latest case of our supreme court to consider that tort. (Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85,360 N.E.2d 765.) The omission immediately flaws the analysis, and it cannot be excused by the suggestion that some distinction exists when the tort of intentional infliction of severe emotional distress is applied to “the insurance industry.” There can be no such distinction, of course, for the tort possesses traits of its own that, when present, will apply to any area of law.
In Public Finance Corp. v. Davis, our supreme court considered in detail the tort of intentional infliction of severe emotional distress. The court commented upon the Restatement (Second) of Torts §46 (1965), law review articles and cases from other jurisdictions in deciding that upon the alleged facts before it no cause of action had been stated. No purpose would be served by reciting here the salient points of the Davis decision. We do not consider the sufficiency of the allegations in a complaint for the case has been tried and the facts are established. When those facts are considered in the light of Davis, it is apparent the plaintiff has failed to prove a tenable case.
No conduct of the defendant towards the plaintiff could be termed outrageous. From the time of plaintiff’s injury the defendant disputed whether there had been an injury to both his knees. Defendant paid several doctors for treating plaintiff and paid some temporary total disability payments, all pursuant to the Workmen’s Compensation Act. When plaintiff told agent Walz that he was to have surgery on both knees on March 14,1973, Walz told plaintiff that defendant’s name could be put on the bill. Walz stated that he also told plaintiff that other agents were in charge of the case and they would have the final decision on whether to pay for the surgery. Plaintiff stated that Walz “may have said that.” The Balsiger memorandum of March 16,1973, stated the belief that plaintiff’s condition resulted from a degenerative health problem rather than from an injury. The position thus taken was legitimate, founded on medical advice and not born of an insidious scheme to defeat plaintiff’s claim. In any event, the memorandum was strictly “in house” and was not communicated to the plaintiff. In the interview with plaintiff on March 26, representative Nelson said nothing about the statute of limitations, but he did inquire of plaintiff whether he had retained an attorney or filed a claim. Again, there was nothing in the conduct of Nelson at that time that could be considered outrageous. The Nelson letter to plaintiff on March 29 was apparently a follow-up of the March 26 visit and interview. Although doubtless a disappointment to the plaintiff, it is nevertheless a bland disclaimer of liability on the part of the defendant. The position taken in the memorandum had a legitimate foundation in medical opinion. A refusal to pay voluntarily under that circumstance cannot be termed outrageous.
The Nelson memorandum to the file written on April 11,1973, used a callous phrase, “The Travelers Insurance Company should be home free,” in reference to the fact that the statute of limitations on the filing of a workmen’s compensation claim had then run. However, that memorandum and that phrase were never communicated to the plaintiff and accordingly could not have caused him any distress.
Squarely applicable to this case is the quotation from Restatement (Second) of Torts §46, comment g (1965):
“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.”
This excerpt from comment g was expressly adopted in Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 92, 360 N.E.2d 765, 768.
The majority characterized the “injury” to the plaintiff in the following terms:
“He was forced to borrow from relatives, go on public aid, and accept charity from the volunteer fire department of which he was a long-standing member, in order to provide for his family. This financial strain upset the plaintiff and caused him to become, in his own words, ‘highly nervous and forgetful.’ ”
It is submitted that the condition in which plaintiff found himself resulted from the mere denial of his claim by the defendant. In point of fact, defendant was not shown to have done anything other than deny plaintiff’s claim, and that denial was for legitimate reasons.
When plaintiff finally did retain an attorney and file his claim for workmen’s compensation, the arbitrator who heard his case denied the claim on the grounds that it was barred by the statute of limitations. The Industrial Commission reversed on the grounds that plaintiff’s physical condition was not yet permanent, and the circuit court affirmed the Industrial Commission. On appeal, the supreme court in Kaskaskia Constructors v. Industrial Com. affirmed, with two justices dissenting. Thus, the fact that in the workmen’s compensation adjudication procedure the arbitrator entered an order favorable to defendant and the ultimate decision for plaintiff was by a divided supreme court belie any assertion that defendant’s conduct in denying liability and placing reliance on the statute of limitations was outrageous conduct. To the contrary, it can be said that plaintiff’s distress was the result of his own failure to retain an attorney when defendant first ceased the payment of temporary total compensation. By his own action plaintiff could have alleviated the severity of his circumstances, and it is improper to lay the blame upon defendant when all it had done was assert its legal rights.
The facts of this case are far afield from those in the Eckenrode case, and the conduct of the defendant here cannot be deemed equivalent to the conduct of the defendant in that case.
The finding of “outrageous conduct” by the majority here will cast a pall upon the insurance business in Illinois. The denial of a claim, no matter how justifiable, will inevitably bring forth a two-count complaint for compensation, one count for recovery under the policy, and the second for intentional infliction of severe emotional distress. Under the authority of the majority decision it will in all cases be merely a question for the jury.
Not only do I disagree with the treatment of the “outrageous conduct” aspect of the case, I also disagree with the propriety of remanding the case for a new trial as to damages. However, in the interest of brevity I will not comment beyond an expression of disagreement.