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STATE OF MICHIGAN
COURT OF APPEALS


ROBERT BARNETT, Personal Representative of the Estate of EVELYN Barnett, Plaintiff-Appellee/Cross-Appellant, v MATTHEW JOHN MCELROY, Defendant, and AUTO OWNERS INSURANCE COMPANY and HOME OWNERS INSURANCE COMPANY, Defendants-Appellants/CrossAppellees.

UNPUBLISHED August 2, 2007

No. 267836 Oakland Circuit Court LC No. 2003-046892-NF

Before: White, P.J., and Saad and Murray, JJ. PER CURIAM. Defendants Home-Owners Insurance Company and Auto-Owners Insurance Company appeal the jury's verdict in favor of plaintiff, Robert Barnett, Personal Representative of the Estate of Evelyn Barnett, on plaintiff's intentional infliction of emotional distress claim and its award of exemplary damages. Plaintiff cross-appeals the jury's failure to award her wage loss benefits. For the reasons set forth below, we affirm in part, reverse in part, and remand for correction of the judgment. I. Facts and Procedural History After Evelyn Barnett was hit by a car, she applied for benefits under an insurance policy issued by Home-Owners Insurance Company. Because of the severity of Ms. Barnett's injuries, defendants assigned a case manager to coordinate her care and rehabilitation. Defendants paid Preferred Case Management for management services, whose employee Marie Foldvary, a registered nurse, was assigned to Ms. Barnett's case. Ms. Barnett filed this action on January 22, 2003, and alleged that the defendant insurance companies withheld or delayed payment of uninsured motorist benefits, lost wages, -1-


medical expenses, and attendant care expenses. For reasons unrelated to the car accident, Ms. Barnett died on October 27, 2003, and her son, Robert Barnett ("plaintiff"), took over the case as the personal representative of Ms. Barnett's estate. Plaintiff later amended the complaint to add a claim against defendants for intentional infliction of emotional distress. The trial court denied defendants' motion for directed verdict on plaintiff's intentional infliction of emotional distress claim and the jury returned a verdict in favor of plaintiff and also awarded exemplary damages.1 The jury denied that Ms. Barnett lost income from work and, therefore, rejected her claim for wage loss benefits. II. Intentional Infliction of Emotional Distress Defendants contend that the trial court should have granted their motion for directed verdict or judgment notwithstanding the verdict (JNOV) on plaintiff's intentional infliction of emotional distress claim.2 Our Supreme Court has yet to recognize the tort of intentional infliction of emotional distress, much less whether it may apply in a case arising under the no-fault act, the purpose of which was to abolish tort liability in motor vehicle accident cases.3 See Kreiner v Fischer, 471 Mich 109, 114; 683 NW2d 611 (2004). This Court has recognized the tort in two cases that are not binding on us, Atkinson v Farley, 171 Mich App 784, 790-791; 431 NW2d 95 (1988) (workers' compensation insurer) and McCahill v Commercial Union Ins Co, 179 Mich App 761; 446 NW2d 579 (1989) (home insurer). See MCR 7.215(J)(1). But our Supreme Court explicitly declined to adopt the tort in a no-fault case, Roberts v Auto-Owners Ins Co, 422 Mich 594; 374 NW2d 905 (1985). In Roberts, however, the Court outlined what does not constitute outrageous conduct by an insurer in processing a claim. Nonetheless, we need not decide whether the tort applies here because, as in Roberts, supra at 597, plaintiff "failed even to meet the threshold requirements of proof to make out a prima facie claim of intentional infliction of emotional distress . . . ." Because plaintiff presented insufficient evidence that defendants' conduct was "outrageous" or that Ms. Barnett suffered "severe emotional distress," plaintiff's claim should not have been submitted to the jury. "To establish a prima facie claim of intentional infliction of

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The jury awarded plaintiff $300,000 in uninsured motorist benefits and that award is not disputed here.

"This Court reviews de novo a trial court's decision regarding a party's motion for a directed verdict." Smith v Foerster-Bolser Const, Inc, 269 Mich App 424, 427; 711 NW2d 421 (2006). "This Court will `view the evidence presented up to the time of the motion in the light most favorable to the nonmoving party, granting that party every reasonable inference, and resolving any conflict in the evidence in that party's favor to decide whether a question of fact existed.' " Id. at 428, quoting Derbabian v S & C Snowplowing, Inc, 249 Mich App 695, 702; 644 NW2d 779 (2002). The exception is those cases that meet the threshold of serious impairment of a body function. Kreiner, supra.
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emotional distress, the plaintiff must present evidence of (1) the defendant's extreme and outrageous conduct, (2) the defendant's intent or recklessness, (3) causation, and (4) the severe emotional distress of the plaintiff." Walsh v Taylor, 263 Mich App 618, 634; 689 NW2d 506 (2004). "The threshold for showing extreme and outrageous conduct is high." Roberts, supra at 603. "Liability for the intentional infliction of emotional distress has been found only where the conduct complained of 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." Graham v Ford, 237 Mich App 670, 674; 604 NW2d 713 (1999). Further, to succeed in showing that the plaintiff has suffered "severe emotional distress," evidence must establish that "the distress inflicted is so severe that no reasonable man could be expected to endure it." Roberts, supra at 608-609 (emphasis deleted), quoting Restatement Torts, 2d,

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