METROPOLITAN LIFE INSURANCE COMPANY, Petitioner,
v.
Ernest D. McCARSON, Sr., Etc., et al., Respondents.
Supreme Court of Florida.
Arthur J. England, Jr. of Fine, Jacobson, Block, England, Klein, Colan & Simon, Miami, Donald J. Sasser and William H. Pruitt, West Palm Beach, and John G. Pare, Tampa, for petitioner.
Samuel D. Phillips, M. Lee Thompson and Larry Klein, West Palm Beach, for respondents.
EHRLICH, Justice.
This cause is before us because the decision оf the district court in Metropolitan Life Insurance Co. v. McCarson,
McCarson was issued a group insurance policy by Metropolitan Life which covered employees of his paint and body shop including his wife. The next year, Mrs. McCarson became incapacitated with Alzheimer's disease. Metropolitan stopped payment of benefits for her, claiming that the condition had been preexisting and that the failure to disclose it voided her coverage. McCarson brought suit; Metropolitan was found to be in breach of contract and ordered to provide coverage pursuant to the contract. Later it became necessary for Mrs. McCarson to have round-the-clock nursing, for which Metroрolitan was liable under the terms of its contract until the policy lapsed or Mrs. McCarson became eligible for Medicare. After requesting proof of ineligibility for Medicare, and receiving no response, Metropolitan eventually discontinued payments and thе round-the-clock nursing ceased. McCarson brought suit to enforce the policy provisions, but in the meantime, Mrs. McCarson was removed from her home and placed in a total care nursing facility where her condition deteriorated remarkably. A few months later she diеd of a heart attack. Medical testimony indicated that the stress of her new surroundings probably brought about her demise. McCarson amended his original complaint and, as Lucille's personal representative, added a count for wrongful death on the theory that Metropolitan's failure to fulfill the terms of the contract had been a willful infliction of emotional distress upon Mrs. McCarson which had thereby caused her death. A jury awarded McCarson medical costs, $200,000 for the emotional distress suffered by Mrs. McCarson, and $250,000 for her wrongful death. The trial сourt struck the award for Mrs. McCarson's emotional distress but upheld the remainder of the award. Metropolitan appealed but the Fourth District Court of Appeal affirmed the award, finding a cause of action for intentional infliction of emotional distress sufficient to suрport the cause of action for wrongful death.
We approve the Fourth District's decision insofar as it states that Florida recognizes the tort of intentional infliction of emotional distress. We have skirted that issue in previous cases, finding it not to be directly before the Court. See e.g., LaPorte v. Associated Independents, Inc.,
The Fourth District joined with the First and Fifth in adopting Section 46, Restatement (Second) of Torts (1965) as the appropriate definition of the tort. Nonetheless, the Fourth District did not conform its findings to the comments explaining the application of this definition:
d. Extreme and outrageous conduct ... . . It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, *279 as to go beyond аll possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"
... .
g. The conduct, although it would otherwise be extreme and outrageous, may be privileged under the circumstances. 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.
Restatement (Second) of Torts § 46 (1965). In light of the verdict in McCarson's favor, we must assume all disputes of fact were resolved and all reasonable inferences werе drawn in his favor. Nonetheless, looking at the facts in the light most favorable to him, the facts as a matter of law are not "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency." Rather, the insurance cоmpany according to the terms of the policy had the right to demand proof of ineligibility for Medicare. Although this demand and the withholding of further benefits had tragic results, and although we must assume from the jury's verdict that it found Metropolitan was in reckless disregard of the potential fоr such tragedy, Metropolitan did no more than assert legal rights in a legally permissible way. As such, Metropolitan's actions are "privileged under the circumstances."
We therefore quash the decision of the district court insofar as it holds that Lucille McCarson had a cаuse of action for intentional infliction of emotional distress sufficient to support Mr. McCarson's suit for wrongful death.
Because the district court found the wrongful death action to be supported by the cause of action for intentional infliction of emotional distress, it did nоt address the counts alleging breach of contract or bad faith dealing. In the interests of judicial economy, we will do so now.
We are well aware that, prior to this Court's decision in VanBibber v. Hartford Accident & Indemnity Insurance Co.,
However, this analysis is not applicable to the policy here before us, which provides indemnity against loss. The insurance contract into which Mr. McCarson entered promised to indemnify him for any covered medical expenses he incurred on behalf of his covered dependents, including Lucille. The insurеr did not relieve him of any financial responsibility for the payment of medical expenses incurred. No benefits were ever payable directly to her. Neither were her interests adverse to the insured's; on the contrary, they both were adversely aligned against the insurаnce company. Thus, because she reaped no direct benefit, and because the insured was in a position to protect her interests, she was at best an incidental third-party beneficiary of the contract. It is axiomatic in contract law that an incidental beneficiary cannot enforce the contract. See J. Calmari & J. Perillo, Contracts §§ 17-2, 17-6 (2d ed. *280 1977). Therefore, Lucille McCarson would not have been able to maintain a cause of action either for breach of contract or for bad faith dealing on the contract. Florida's Wrongful Deаth Act, in section 768.19, Florida Statutes (1981), requires, as a condition precedent to bringing the action for wrongful death, that the decedent have a cause of action on which she could have brought suit had she survived. Such is not the case here on the facts pleaded. Mr. McCarson's wrongful death claim must be disallowed.
Accordingly, the decision of the district court is approved in part and quashed in part and the case is remanded to the trial court for entry of judgment not inconsistent with this opinion.
It is so ordered.
OVERTON, ALDERMAN and McDONALD, JJ., concur.
BOYD, C.J., and SHAW, J., concur in part and dissent in part with opinions.
BOYD, Chief Justice, concurring in part and dissenting in part.
I concur in the Court's disapproval of the district court's affirmance of the recovery for wrongful death by reckless or intentional infliction of emotional distress. I base my conclusion not only on the lack of wilful, wanton, or outrаgeous conduct on the part of the insurer, but also on the lack of a prima facie showing by evidence that the insurer's conduct caused the death of Mrs. McCarson.
The fact that the deceased's condition deteriorated badly after she was placеd in a nursing home does not establish that the denial of benefits caused the deterioration and subsequent death. There was insufficient evidence to raise a proper jury question on the matter of causation. Another way of expressing this is to say that it was not foreseеable that a death would ensue from the denial of benefits. As the majority concludes, the insurer was entitled to strict compliance with the policy requirements, and cannot be held responsible in tort for an occurrence only very tenuously connected with its taking a step it was legally entitled to take.
On the matter of whether Mrs. McCarson was a direct beneficiary of the group health insurance policy, I totally disagree with the majority's conclusion and agree with the statements of Justice Shaw. The deceased was clearly a direct beneficiary of the policy, and not a third-party beneficiary. Under my view of this case, the answer to this question makes no difference to the outcome because there was no way the insurer's conduct could have in fact caused the death of Mrs. McCarson.
SHAW, Justice, concurring in part and dissenting in part.
I agree that Florida recognizes the tort of intentional infliction of emotional distress. Having disposed of the point of law which establishes our conflict jurisdiction, I would approve the district court decision in its entirety. I recognize that the question of whether petitioner's conduct rose to the level of extreme and outrageous conduct is a difficult and close decision. However, a jury, a trial judge, and a district court believed it did. I would not substitute this Court's judgment for theirs. Glass v. Parrish,
I also disagree with the majority's holding that Lucille McCarson was, at best, an incidental third-party beneficiary of the health plan contract and could not have maintained a cause of action either for breach of contract or for bad faith dealing by the insurance company.
Lucille McCarson was originally covered under the group health plan as an employee. After she left employment, and before the suit, she became covered as a dependent spouse. The critical issue is whether Lucille McCarson was an intended or incidental beneficiary under thе health-plan contract. Restatement (Second) of Contracts (1979) provides:
§ 302. Intended and Incidental Beneficiaries
(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a *281 promise is an intended beneficiary if recognition of a right to performance in the benеficiary is appropriate to effectuate the intention of the parties and either
(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or
(b) the circumstances indicate that thе promisee intends to give the beneficiary the benefit of the promised performance.
(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.
As I read section 302, Lucille McCarson meets the test in both subsections (1)(a) and (b). Under Florida law spouses are reciprocally responsible to each other for necessities, including medical bills. Parkway General Hospital, Inc. v. Stern,