Lead Opinion
Opinion by
In this wrongful death action, plaintiff, Sue Ann Moore, appeals the trial court's summary judgment in favor of defendants, Western Forge Corporation (Western) and Crawford & Company (Crawford), as well as the costs awarded against her. We affirm the summary judgment but remand to reduce the cost award.
Moore's husband (decedent) filed a workers' compensation claim against Western, his long-term employer. Western was self-insured and used Crawford to administer its workers' compensation claims. Crawford mailed decedent, who was off work and awaiting surgery for his injury, a Notice of Contest stating that the claim was being contested pending completion of an investigation. Shortly after reading this notice, decedent killed himself.
In an unpublished decision, Sue Moore v. Industrial Claim Appeals Office, 2005 WL
conceded that claimant was not clinically depressed at the time of his death, that he became distraught and desperate the moment he received formal notice that the claim would be contested, and that the suicide was an impulsive act related to the stress and worry caused by decedent's fear that he would be terminated if his injury were determined to be non-work-related.
The entire administrative record was included in the summary judgment record here.
In this appeal, Moore asserts that Western's handling of the claim through Crawford, acting as its agent within the scope of authority, was in bad faith and caused decedent emotional distress, which led to his suicide. Moore also asserts that defendants abused the workers' compensation process by contesting decedent's claim.
We conclude that the alleged breach of defendants' duty of good faith and fair dealing would not render them liable for the suicide, even accepting Moore's chain of actual causation; that contesting the claim did not legally or proximately cause the suicide; and that an abuse of process claim cannot be based on actions taken in administering a workers' compensation claim.
I. Summary Judgment Standard
We review a summary judgment de novo. Brodeur v. Am. Home Assurance Co.,
IL Liability for Suicide
According to Moore, because both Western and Crawford owed decedent a duty of good faith and fair dealing, breach of which would permit recovery of damages for decedent's emotional distress, their lability extends to decedent's suicide upon proof of causation connecting bad faith handling of the claim, resulting emotional distress, and decedent's "uncontrollable impulse" to kill himself, as her expert opined.
Defendants agree that they both owed decedent a duty of good faith, breach of which would make them liable for decedent's emotional distress, but they deny that the duty extends to detecting or preventing suicide. They also assert that because suicide is an independent intervening act, the causal chain articulated by Moore does not establish proximate cause, even assuming breach of their duty resulted in emotional distress which was a factor in the suicide.
Defendants do not dispute, and therefore we accept for purposes of summary judgment, that material factual issues have been raised concerning bad faith and resulting emotional distress, We discern an issue of material fact as to the chain of actual causation leading to decedent's suicide. Nevertheless, we agree with the trial court.
A. Introduction
The only reported Colorado appellate opinion to address tort liability for suicide is English v. Griffith,
"The courts which have addressed the issue uniformly split the claims into two familiar categories: cases where death is caused by intentional wrongdoing and those where causation is negligent." Rowe v. Marder,
*432 e Moore did not plead a claim for, nor does she argue that the facts show, intentional infliction of emotional distress or willful infliction of pbysical injury by defendants against decedent.
e Moore pleaded a bad faith claim, but did not argue below and does not argue on appeal that this claim must be analyzed under causation principles unique to intentional wrongdoing.
e Moore did not plead a negligence claim, but in response to defendants' reliance below on causation principles derived from negligence cases, she asserted and argues on appeal that those principles also preclude summary judgment because decedent acted on an "uncontrollable impulse."
Nevertheless, we are guided by the following general principles.
In intentional tort cases, several courts have acknowledged that a defendant would be liable for wrongful death if intentional infliction of emotional distress resulted in suicide by the plaintiff's deceased. See, e.g., Tate v. Canonica,
These courts rely on principles such as Restatement (Second) of Torts § 485A ("A person who commits a tort against another for the purpose of causing a particular harm to the other is liable for such harm if it results, whether or not it is expectable. ..."). According to Restatement section 870, "One who intentionally causes injury to another is subject to lability to the other for that injury ...." Comment (b) to section 870 explains, "An intentional tort is one in which the actor intends to produce the harm that ensues; it is not enough that he intends to perform the act."
While not binding on Colorado courts, "the restatements generally provide concise summaries of the law in a certain subject matter and can be persuasive authority." AE, Inc. v. Goodyear Tire & Rubber Co.,
In negligence cases, courts have been unwilling to recognize any duty, breach of which would make a defendant liable for suicide based only on actual causation, absent a special relationship involving treatment, supervision, or custodial control of the deceased. See English,
Otherwise, courts have found proximate cause only in very narrow circumstances, such as where negligence resulted in delirium, insanity, or, in some cases, other mental conditions that precluded the deceased from making a rational choice. This limitation on proximate cause derives from "the rationale that the consummated suicide or unsuceessful attempt constitutes an independent intervening act which the original tortfeasor could not reasonably have been expected to foresee." Gregory G. Sarno, Annotation, Ligbility of Attorney for Suicide of Client Based on Attorney's Professional Act or Omission,
These general principles reduce this case to three questions. First, should liability for suicide based on breach of the duty of good faith and fair dealing be determined by applying the broad legal causation principles of intentional torts? Second, if those principles do not apply, does the scope of this duty expose a defendant to potential liability for an insured's suicide based on only actual causation? Third, if the seope of this duty is more limited, did Moore present sufficient evidence of legal or proximate cause, in addition to actual cause, to avoid summary judgment? We answer these questions in the negative.
Moore cites no authority, nor have we found any, holding that breach of a claims administrator's or an insurer's duty of good faith and fair dealing could lead to liability for the suicide of an insured. Nevertheless, she urges us to reach this conclusion based on language in many Colorado cases concerning the obligations of insurers and claims administrators to insureds in the first-party setting, such as that before us, and on liability for emotional distress damages in a bad faith case.
In Cary v. United of Omaha Life Insurance Co.,
When the actions of a defendant are similar enough to those typically performed by an insurance company in claim administration and disposition, we have found the existence of a special relationship sufficient for imposition of a duty of good faith and tort lability for its breach. ...
Our supreme court has also recognized that in the first-party setting an insured "is particularly vulnerable" and insurers "are encouraged to delay payment ... with an eye toward settling for a lesser amount than that due." Travelers Ins. Co. v. Savio,
In Goodson v. American Standard Insurance Co.,
1. Intentional Tort
Although we are concerned that Moore has never expressly argued for an intentional tort analysis, she cited several cases that include discussion of this issue both below and on appeal. And this analysis is pivotal to the partial dissent. Hence, we begin with intentional tort analysis, but conclude that it does not apply to a bad faith claim.
In Travelers Insurance Co.,
However, "a claim for outrageous conduct must be based upon action that is more egregious than either the conduct underlying a bad faith breach of contract claim or a willful and wanton breach of contract claim." Munoz v. State Farm Mut. Auto. Ins. Co.,
Most cases applying intentional tort analysis in suicide cases involve intentional infliction of emotional distress, sometimes referred to as outrageous conduct. See Rowe,
Other intentional tort suicide cases involve "willful tortious conduct intended to cause a victim physical harm." Kimberlin v. De Long,
In our view, the intentional tort approach to liability for suicide should not be applied in a bad faith case because breach of that duty does not involve an intent to cause either emotional distress or physical injury. As the Tate court explained, this approach:
*434 would not apply where the act of the defendant was intentionally done, but there was no intent to ecause injury. It is applicable only where the actor intended to cause injury, and the injury is a substantial factor in bringing about the suicide ... if the suicide can be shown to have been caused by the type of injury that the defendants intended to inflict. ...
Accordingly, we decline to treat bad faith as an intentional tort in determining liability for suicide of the insured.
2. Recovery of Emotional Distress Damages
We are not persuaded otherwise by Moore's argument linking alleged bad faith in processing the claim, decedent's emotional distress, and his suicide.
This argument conflates duty with causation. We address and reject it as part of our duty analysis because "the concepts of duty and proximate cause are often interchanges-ble, and can be easily confused, when the analysis of both involves the common question of foreseeability." Walcott v. Total Petroleum, Inc.,
Moore cites no case, nor have we found one, holding a defendant liable for suicide because breach of that defendant's duty permitted recovery of damages for emotional distress. To the contrary, in Worsham v. Nix,
Absent specific authority, our general approach must be "determining whether the duty imposed on the actor was designed to protect the one harmed from the risk of harm created by the hazard in question." Walcott,
Emotional distress damages are recoverable in bad faith cases because "[gliven that insureds purchase insurance policies to obtain financial security and peace of mind, emotional distress is a likely and foreseeable consequence of a bad faith denial of benefits afforded under the contract." Goodson,
Such recovery of emotional distress damages is "based upon traditional tort principles of compensation for injuries actually suffered, including emotional distress." Ballow v. PHICO Ins. Co.,
Moreover, several other intentional torts allow recovery for emotional distress damages. See CJI-Civ. 4th 17:11 (malicious prosecution), 21:5 (false arrest), 22:18 (defamation), 28:16 (invasion of privacy). Yet like bad faith, these torts do not involve an intent to cause emotional suffering. Hence, accepting Moore's emotional distress damages argument would cireumvent the rationale that we have adopted limiting liability for suicide to intentional infliction of emotional distress.
Accordingly, we decline to recognize liability for suicide in a bad faith case because the actor is liable for emotional distress damages, and emotional distress could be a factor in the suicide.
3. Seope of Duty
Although the existence of the duty of good faith and fair dealing is beyond dispute, the unusual cireumstance of an insured's suicide requires us to determine its scope. We conclude that this duty does not create liability for suicide based only on actual causation.
Both the existence and scope of a tort duty are questions of law to be decided by the court. Keller v. Koca,
Because breach of the duty of good faith and fair dealing makes the actor liable for emotional distress damages, here we will assume that in isolated cases suicide could be caused by emotional distress arising from bad faith claim processing. But we conclude that the foreseeability of such a suicidal reaction is very low. See McPeake v. William T. Cannon, Esquire, P.C.,
In contrast, the burden on claims administrators to guard against suicide would be extremely high because they would be required to make judgments about the mental health of insureds. Claims administrators do not have special expertise or professional training with which to make such judgments. Cf. English,
Further, placing this burden on claims administrators would either create an unreasonable risk of liability for wrongful death, cf. English,
Our conclusion is consistent with cases elsewhere that have held other duties did not create potential liability for suicide based only on actual causation. See, e.g., Cleveland,
Accordingly, we conclude that breach of the duty of good faith and fair dealing does not expose a defendant to potential liability for the suicide of an insured based only on actual causation.
C. Proximate Cause
As indicated, we perceive a disputed issue of material fact whether defendants' conduct was the actual cause of decedent's suicide. But "[olnce actual cause is established, legal causation must then be determined." City & County of Denver v. Indus. Comm'n,
A defendant's conduct
is not a cause of another's injuries if, in order to bring about such injuries, it was necessary that the conduct combine or join with an intervening cause which also contributed to cause the injuries, but which intervening cause would not have been reasonably foreseen by a reasonably careful person under the circumstances.
Scharrel v. Wal-Mart Stores, Inc.,
In applying intervening cause principles, we recognize that the matter is not one of causation, "but an attempt to spell out rules of law limiting the liability of a negligent actor, using the language of causation." Tate,
Because suicide is usually treated as a voluntary and willful choice, "the person committing suicide is in effect both the victim and the actor." Webstad v. Stortini,
If the actor's negligent conduct so brings about the delirium or insanity of another as to make the actor liable for it, the actor is also liable for harm done by the other to himself while delirious or insane, if his delirium or insanity (a) prevents him from realizing the nature of his act and the certainty or risk of harm involved therein, or (b) makes it impossible for him to resist an impulse caused by his insanity which deprives him of his capacity to govern his conduct in accordance with reason.
Section 455 "does not set forth a duty, but describes a rule of causation ... [which] presupposes an existing legal duty." English,
Hence, we accept Moore's invitation to apply section 455, but we conclude that the summary judgment record does not show any basis for liability under this section because Moore failed to establish that when decedent took his life, he was suffering from delirium or insanity that made his act involuntary.
The comment to clause (b) of section 455 explains that it applies when the "act [of suicide] is done under an insane impulse which is irresistible because his insanity has prevented his reason from controlling his actions." Thus, "[when the decedent acts under the conditions expounded in [section]
As some of the cases Moore cites indicate, the volition question may raise a factual dispute that must be resolved by the jury. See, e.g., Clift (reversing summary judgment); Stafford v. Neurological Med., Inc.,
We discern no such factual dispute here.
Moore cites Orcutt v. Spokane County,
Further, the record does not show that decedent's suicide resulted from "delirium or insanity" which made "it impossible for him to resist an impulse caused by his insanity." § 455.
Moore's psychiatric expert testified in the workers' compensation proceeding:
® "On the day of his death [decedent] contacted the personnel office, received at least two letters from [Crawford] and he felt desperate and killed himself."
e "The managing of the claim was instrumental in his belief that he would not be able to get appropriate treatment and return to work.... But in my opinion it's the actual injury, his inability to walk across the room and do the things that were required of him at work, and his belief that he would be terminated if it was not work related that caused his death."
® "His identity as a person in addition to being the breadwinner at home was being a loyal employee of Western Forge. And I think when he was not able to do that work and saw no avenue to be able to return to work, he felt he would be terminated, then he killed himself."
This testimony creates a factual issue whether "but for" Crawford's alleged bad faith in handling decedent's claim, he would not have committed suicide. However, the evidence must also permit a reasonable jury to determine that Crawford's actions caused decedent to suffer a mental illness. See Jamison,
Although Moore's expert opined that "denial of [decedent's] claim resulted in his uncontrollable impulse to commit suicide," he did not show the intervening link: that this impulse was the result of delirium or insanity. Cf. Jamison,
Cases that "place less emphasis on the mental state and more on the causal connec
Instead, we adhere to the distinction between mental condition and mental illness because mental illness is a useful limiting principle on a negligent tortfeasor's wrongful death liability. The extreme nature of suicide would alone give credence to an expert's ad hoe opinion that the deceased must have been afflicted with a mental condition, even if the expert had never met the deceased, as here. Cases that depart from the "delirium or insanity" test do not articulate criteria for mental condition, such as the categories set forth in Diagnostic and Statistical Manual of Mental Disorders (4th ed.2000). In contrast, delirium or insanity can be assessed based on objective factors such as the deceased's ability to attend to daily affairs and orientation as to person, time, and place. Cf. Terry v. Sullivan,
As explained in Jamison,
While current understanding of mental illness has permitted the judicial recognition that suicide may be "involuntary," it is nonetheless true, that, short of a basis for a conclusion that the self destruction was an involuntary act produced by a mental illness in the nature of a psychosis, this society elects to promote individual accountability for such choices. The legal formulation must strike the balance between defendant's responsibility for the consequences of its acts and the consensual societal value that requires life-affirming conduct.
Accordingly, we conclude that Moore did not establish a disputed factual issue concerning proximate cause under section 455.
In sum, the claim that defendants are liable for decedent's suicide fails based on principles of both duty and causation.
III. Abuse of Process
Moore next contends the trial court erred in granting defendants summary judgment on her abuse of process claim. Again, we disagree.
A claim for abuse of process requires a plaintiff to prove the following elements: (1) an ulterior purpose for the use of judicial process; (2) willful action in the use of that process which is not proper in the regular course of the proceedings, that is, use of a legal proceeding in an improper manner; and (8) resulting damage. Walker v. Van Laningham,
Here, Moore argues that defendants abused the workers' compensation process because they "intended solely to deny and delay payment of a claim that the defendants knew was owed to [decedent]," and that they filed the Notice of Contest allegedly "to coerce and pressure [decedent] into giving up his workers' compensation benefits and accept inferior health insurance coverage instead."
A cause of action for abuse of process reflects the need to protect the integrity of judicial proceedings. Gordon v. Cmty. First State Bank,
Moore cites no case, and we have found none, extending the abuse of process tort to actions taken in the administration of workers' compensation claims, such as filing
The vast majority of jurisdictions decline to recognize abuse of process in nonjudicial proceedings. See, e.g., Stolz v. Wong Commc'ns Ltd. P'ship,
Consistent with the analysis in these cases, which we find to be well reasoned, we decline to extend abuse of process to a workers' compensation proceeding because such claims do not involve any contact with a judicial forum. Cf. Brodeur,
Accordingly, we conclude that the trial court did not err in granting summary judgment for defendants on Moore's abuse of process claim.
Our affirmance of the summary judgment moots Moore's contention that the trial court erred in denying her motion to add punitive damages.
IV. Costs
Finally, Moore contends the trial court erred in awarding $67,061 in costs to defendants. We agree in part.
An award of costs is within the discretion of the trial court and will not be overturned absent a clear abuse of discretion. Foster v. Redd,
"A party seeking costs must provide the court with sufficient information and supporting documentation to allow a judge to make a reasoned decision for each cost item presented." Brody v. Hellman,
A. Costs for Expert's Assistant
We first reject Moore's argument that the cost award should not have included fees for an expert witness's assistant.
Moore relies on Western Fire Truck, Inc. v. Emergency One, Inc.,
However, in In re Estate of Breeden,
Moreover, here the trial court reviewed the expert's bill in detail and found that the costs associated with the assistant were reasonable. We cannot say that this finding is an abuse of discretion.
B. Adequate Documentation of Costs
We next address Moore's argument that bills of several of defendants' experts did not provide sufficient detail to support the trial court's award of their costs. We agree in part.
Our examination of the bills contested by Moore shows that all but one of the experts provided sufficient information to support the costs award.
The bill from defendants' expert attorney only states that fees totaling $14,858.39 were incurred. The record does not contain any additional documentation to support this award. Cf. Am. Water Dev., Inc. v. City of Alamosa,
Accordingly, we conclude the trial court erred in finding that the fees of the attorney were reasonable. On remand, these fees shall be deducted from the costs awarded.
The summary judgment is affirmed, and the case is remanded to reduce the costs award.
Concurrence Opinion
concurring in part and dissenting in part.
The primary issue in this appeal is whether defendants were entitled to summary judgment on the basis that plaintiff Moore's husband's suicide precluded liability on Moore's claim for bad faith adjustment of a workers' compensation claim. I conclude they were not, and therefore respectfully dissent from the majority's affirmance of summary judgment on the bad faith claim. I agree with the majority that summary judgment was proper on the abuse of process claim.
My analysis of the bad faith issue starts with the following principles.
First, workers' compensation insurers, including self-insured employers, and their claims adjusters owe a duty of good faith and fair dealing to injured employees in investigating and processing workers' compensation claims. Scott Wetzel Services, Inc. v. Johnson,
Second, an insured who prevails on a claim for bad faith breach of an insurance contract is entitled to recover damages, based on traditional tort principles of compensation, for injuries actually suffered, including emotional distress. Goodson v. American Standard Ins. Co.,
Third, the "traditional tort principles of compensation for injuries actually suffered," Goodson,
In reaching a contrary conclusion, the majority relies on negligence cases holding that suicide is such an extraordinary event that a negligent tortfeasor cannot be held liable for it absent special cireumstances. Here, however, plaintiff is asserting a claim for bad faith adjustment of a workers' compensation claim. In such ciremmstances, I view the negligence analysis relied on by the majority as of limited value.
Our supreme court has recognized that negligence principles do not necessarily apply to bad faith claims against workers' compensation insurers. See Scott Wetzel Services,
The analysis of the New Hampshire Supreme Court in Mayer is particularly instructive. In that case, the court was called upon to decide "whether New Hampshire recognizes an exception to the general rule that tort actions may not be maintained which seek damages for the suicide of another."
The law of torts recognizes that a defendant who intentionally causes harm has greater culpability than one who negligently does so.... When the wrong alleged is intentional, the defendant "is responsible for the injuries directly caused even though they may be beyond the limits of foreseeability," proof of which is required in a negligence action.... In most cases of intentional torts "[t] he defendant's Hability for the resulting harm extends ... to consequences which the defendant did not intend, and could not reasonably have foreseen, upon the obvious basis that it is better for unexpected losses to fall upon the intentional wrongdoer than upon the innocent victim." W. Prosser and W. Kee-ton, The Law of Torts § 9, at 40 (5th ed.1984) (footnote omitted)....
Under [the Restatement (Second) of Torts], liability for unintended resulting harm is based upon proof of the tortfea-sor's wrongful intent, and consideration of the degree of moral wrong and the seriousness of the harm which he intended. Consideration of these factors, as opposed to the foreseeability of the harm as in negli-genee actions, is consistent with the policy behind imposing liability for intentional torts: compensating the victim and deterring intentional harm to others.
Id. at 1209-10 (additional citations omitted).
While acknowledging that a first-party bad faith case is "more like an intentional tort action than negligence," the majority never
First, although some courts have specifically required an additional showing of outrageous conduct or intent to cause emotional distress, not all have done so. For example, in R.D., the Wyoming Supreme Court held that one who intentionally commits a tort "will be liable for the result even though he does not intend to cause the emotional or psychiatric illness" that was a substantial factor in bringing about the suicide.
Second, although Moore's complaint does not include a separate cause of action for intentional infliction of emotional distress or outrageous conduct, it alleges that defendants acted unreasonably and in "the utmost bad faith," knowing their conduct and position were unreasonable, in adjusting the workers' compensation claim. The complaint further alleges that defendants' conduct was attended by cireumstances of fraud, malice, or willful and wanton conduct sufficient to support recovery of punitive damages. While I am by no means persuaded that plaintiff can establish her allegations, I conclude that her complaint sufficiently alleges the type of conduct that takes this case out of the general rule applicable where a suicide results from negligence.
In regard to causation, the administrative law judge in the workers' compensation proceeding found as a matter of fact that Moore's husband would not have committed suicide but for defendants' claim denial, and that his receipt of the notice of contest was the final event triggering the suicide. The Industrial Claim Appeals Office and this court concluded that that finding was supported by the evidence. I also note that, in the workers' compensation context, divisions of this court have held that a suicide or suicide attempt that is causally related to an industrial injury is compensable. See Dependable Cleaners v. Vasquez,
Finally, I am not persuaded that allowing plaintiff to go forward on her bad faith claim would have the adverse consequences posited in the majority opinion.
The majority reasons that the result urged by plaintiff would place a burden on claims administrators to make judgments about the mental health of insureds, would potentially create an unreasonable risk of liability, and could erode an insurer's right to investigate and contest claims brought by persons who may be unstable.
The first proposition is questionable, in that the supreme court's recognition that insurers and claims adjusters can be liable for emotional distress damages would seem necessarily to assume that such parties would be able to anticipate the mental health consequences of their acts. See Goodson,
More important, the concerns raised by the majority are already adequately addressed under our case law. Because there is no fiduciary or quasi-fiduciary relationship implicated in a first-party insurance context, a first-party bad faith claimant has the additional burden of proving, not only unreasonable conduct, but also that "the insurer either knowingly or recklessly disregarded the va
For these reasons, I1 would reverse the summary judgment and remand for further proceedings on plaintiff's bad faith claim.