Roberts v. Auto-Owners Insurance

Mich COMPANY v AUTO-OWNERSINSURANCE ROBERTS 2). (Calendar Argued April No. Docket No. 72861. —Decided 1, 1985. October Roberts, of Christine for herself as next Mend Delores and Rodzos, brought daughter, Ralph an minor Roberts her and against Auto-Owners in the St. Clair Circuit Court action seeking Company, recovery of no-fault benefits for Insurance anguish replacement damages for services and mental punitive damages ground exemplary on the that Auto-Own- or process- improper, outrageous, or was malicious ers’ conduct by injuries ing denying for suffered claims benefits riding by she struck a motor vehicle while Christine when was Corden, court, J., judgment bicycle. The James T. entered her plaintiffs, awarding portion jury on a verdict for the $2,500 replacement in mental claimed and distress benefits Burns, P.J., damages. Appeals, F. T. M. and D. The Court of Simon, JJ., per opinion in an curiam affirmed Walsh 64515). (Docket appeals. defendant No. joined by opinion Ryan, Boyle, Justices Justice Supreme Court Brickley, Cavanagh, Riley, held: plaintiffs requirements of to meet the threshold failed proof prima facie infliction of to make out case intentional Thus, may the tort emotional distress. issue whether Michigan formally adopted jurisprudence may not into the be reached. Torts, who, 2d, person provides 1. The Restatement conduct, intentionally recklessly outrageous or extreme and subject liability causes another severe emotional distress is of emotional distress. Four tort of intentional infliction prima necessary to out a facie case of elements are make outra- intentional infliction of emotional distress: extreme and [1, ^[2] Validity and Am2] What impairment, no-fault automobile insurance ALR3d 229. Jur constitutes 2d, construction References or Automobile Insurance 358. sufficiently like to for Points of "no-fault” automobile insurance justify serious coverage. recovery in Headnotes § personal injury, disability, 33 ALR4th 767. outside plans. Ins Co v Auto-Owners causation, recklessness, conduct, geous and severe intent must be so The conduct emotional distress. beyond degree go possible as to all character and so extreme regarded utterly decency and be atrocious and bounds community. liability The does not in a civilized intolerable threats, insults, indignities, annoyances, petty to extend mere setting, oppressions, a contractual an or other trivialities. In for intentional of distress action tort emotional infliction duty of a from the must rest on a distinct contract. breach case, plaintiffs present proof the to 2. In this failed sufficient prima facie of of to make out a claim intentional infliction plaintiffs alleged The no than the emotional more distress. filing replacement of a failure of the the defendant facilitate owed. such services claim and the denial of benefits While unreasonable, may considered it conduct be not tortiously outrageous. no which be considered There was would plaintiffs;, indication out to nor that Auto-Owners set harass the shown so was a course as of conduct could characterized that go outrageous degree and in character so extreme as beyond possible decency regarded bounds of and be all community. utterly atrocious intolerable civilized At most, faith, justify- bad conduct would constitute Auto-Owners’ ing penalties of for the assessment the under no-fault act plaintiffs’ attorney plain- payments overdue fees. The anger accompanies tiffs’ is more consistent with that which obligation. was no breach of a contractual There evidence of grief, depression, disruption style, of or of for treatment life was, by anxiety depression. proved plaintiffs distress law, insufficient as matter of to state a cause of action for intentional infliction of emotional distress. recognize concurring, Williams, Chief would the tort Justice of infliction of emotional distress. intentional questioning recogni- separately, Justice wrote whether Levin action, of tion of another cause intentional of emo- infliction distress, addressing tional is the most means of efficacious litigation. Recognition problem unjustified of cause litigation randomly action would increase the burden Instead, provide compensation in cases. fortuitous isolated unjustified litigation providing court rule for for sanctions provide enlarged compensation pecuniary should be all litigation, resulting given be' loss such notice should from expected trial courts are rule and- to enforce litigants can show failure to enforce obtain relief who on can appeal. Reversed. Mich (1983) App reversed. 354 NW2d

Opinion of the Court — — — Infliction No-Fault Intentional 1. Torts Insurance Distress. Emotional Allegations to facilitate a no-fault insurer of a failure replacement the denial filing services and a claim for action for a cause of insufficient state owed were benefits the insurer’s distress where infliction of emotional intentional justify- amounting conduct, faith to bad unreasonable or while act, ing imposition penalties the no-fault was under plaintiffs’ more tortiously distress was and the anger accompanying a contrac- the breach of with consistent 24.13142[3], (MCL 500.3148[1]; obligation 500.3142[3], MSA tual 24.13148[1]). Separate Opinion — — Dam- of Emotional Distress Infliction 2. Torts Intentional ages — Court Rules. resulting remedy the maintenance of from power by expanding the unjustiñed enhanced lawsuit should be to include the total to assess actual costs of a trial court loss, including pecuniary all fees and adminis- amount of actual litigation attorney charges fees as well as trative because income-producing time for loss of and an additional sum wrongful of the action maintenance attributed to the business (MCR2.114[D],[E]). (by Heyboer Luce, Henderson, & Bush, Bankson Bankson) plaintiffs. for the S. Keith (by David W. Drillock of W.J. Law Office Hearsch) defendant. for the Amici Curiae: Hanlon, Lanctot Dickinson, Brandt, Becker & McCutcheon) (Gromek,

(by & Bendure T. Charles Nancy Bosh, L. Thomas, L. Carl Gromek counsel) Association. Auto Club Insurance Ziegelman, Hammond, Roach & Soti- Donovan, Lahti), (by A. and Mark C. roff, Thomas Roach P.C. Auto-Owners Opinion of the Court Joseph Murray, Counsel, W. Assistant General Michigan, Blue Cross and Blue Shield of Cross and Blue Shield of for Blue Michigan. Michigan Lawyers

Joan Lovell for Trial Associa- tion.

Eggenberger, Eggenberger, McKinney Weber, & (by Eggenberger P.C. D. William D. Paul Hofmeister), for State Farm Mutual Automobile Company. Insurance granting appeal J. Our order leave to Boyle, parties following

this case directed the to brief the two issues: (1) whether the tort of intentional infliction of and,

emotional so, jurisdiction; distress exists this if (2) plaintiffs whether adequately pled proved an intentional infliction of emotional distress. [419 (1984).] Mich 933 plaintiff

Since we conclude that failed even to requirements proof meet the threshold to make prima out a facie claim of intentional infliction of distress, emotional we are constrained from reach ing the issue as to whether this modern tort formally adopted jurisprudence should be into our concerning the well-settled rule that statements principle law essential to determination of the case are obiter dictum1 and lack the force of an agree "unjustified litigation” Since we with Justice is a Levin vice, "[ojnly by deciding specific give and that cases can this Court ” meaning conduct,’ outrageous to the words 'intentional and we yield temptation engaging decline to to the in full blown dis- course on the relative merits of the tort of intentional infliction of remedy containing emotional distress or cal hypotheti- of a for unfounded involving practices. Any future cases "boundaries or guidelines might for the bench or bar” which result from such obiter Mich Opinion of the Court Canvass- County McNally Wayne

adjudication, (1947). ers, 316 Mich 25 NW2d I brought Ralph Delores and Plaintiffs of their action, on and behalf individually this Rodzos, recov seeking daughter, minor Christine from their no-fault of certain no-fault benefits ery insurer, Insurance Com defendant Auto-Owners Christine was struck The claims arose when pany. result riding her bicycle, a motor vehicle while and her days in several hospitalization her ing Auto- a total of three weeks. missing of school for medical and ambulance paid plaintiffs’ Owners plaintiffs’ instant lawsuit concerns only bills. The MCL benefits under replacement claim for 24.13107(b). 500.3107(b); separate para In a MSA claimed complaint, plaintiffs also graph of "exemplary and anguish” for "mental conduct, al punitive damages” Auto-Owners’ and/or leged "improper and/or following respects: malicious” 19, 1979, appli- July Plaintiff made On or about transitory yield only illusory case would assistance dictum this to the bench addresses the and necessary adopted recently 2.114 note that MCR bar. We imposition sanctions trial courts. The trial bench provide implementation with the of this rule will this Court bar’s experience to assess the need for further remedies. provides, part: The section relevant protection payable are for the follow- "Personal insurance benefits ing: (b) injured consisting an loss of loss of income from work Work performed during years person date the first 3 after the would have exceeding injured expenses not if had been accident he obtaining per day, reasonably ordinary $20.00 sary injured person incurred neces- that, injured, if he had not been services lieu those during performed years the first 3 after would have accident, not for for the benefit of himself the date of the income but dependent.” or of his Ins Co v Auto-Owners Opinion op the Court benefits; August services replacement for cation 28, 1979, requested by Defendant were sub- forms 3, September on or about mitted Defendant did not 1979, that Defendant Defendant stated presenting purpose for the document have a claim; of said At time replacement services 1979, statement, Michigan No 3, September including replacement Insurance Statute Fault for six almost had been effect services benefits years; their own Plaintiffs created and submitted on services or regarding replacement document 19, 1979, appar- application said about November ently up follow letter being ignored requiring a 8, 13, January 1979; On or about December dated accident, six after the approximately months denying apparently letter Defendant submitted hereof, claim; Defendant As of date plaintiff’s valid replace- way of paid anything at all has not ment services benefits. summary trial, moved

Before Auto-Owners anguish, arguing judgment, exem that mental damages plary punitive in an are not available or claiming replacement The motion benefits. action subsequent denied, motion as was defendant’s was ground apparently3 reconsideration, on exemplary anguish, plaintiffs’ claim for mental punitive the tort of inten based on was than rather infliction of emotional distress tional motion at renewed the contract. Auto-Owners prop alleging plaintiffs’ trial, failure this time complaint. allege theory erly the tort summary judgment denying or the either the motion for No order deny- appears appeal. In on the record motion for reconsideration ing trial, judgment summary at motion for renewed defendant’s denying judge the earlier motion: his reason for trial indicated indicated, counsel, has you’ve this matter been As "The Court: nothing happened previously, Court considered change intentional may proceed again the tort of my and find mind. I found then pled the Plaintiff mental proofs. well infliction of distress was Motion for summary judgment is de- with his nied.” Opinion of the Court of plaintiffs’ denied.4 5Atthe close again

motion was moved for a di case, unsuccessfully Auto-Owners verdict, on the claiming proof a failure rected returned a ver subsequently issue. The jury same portion of the re awarding plaintiffs dict $2,500 claimed, as well as placement benefits motion for damages. Auto-Owners’ mental distress trial, contesting validity mental a new award, damage also was denied. distress In the Auto-Owners relied on Appeals, Court in Kewin pronouncement this Court’s then-recent Co, 401; Life Ins 409 Mich v Massachusetts Mutual (1980), dis- contending 295 NW2d 50 that mental are in what is essen- damages tress unavailable affirming of contract action. In tially breach court, Appeals the Court of judgment of lower finding Kewin sufficient evidence distinguished of the contract independent of tortious conduct — of mental distress justify breach —to award v Ins damages this case. Roberts Auto-Owners (1983). Co, 595; App 135 Mich 354 NW2d 271 to consider granted viability We leave case, facts of this plaintiffs’ theory tort on the to brief issues set forth parties directed above.

II Kewin, supra, disability we held that a insur matters of mental policy ance did involve justify concern and solicitude that would award damages for its 409 of mental distress breach.5 exemplary Mich 416. further held that dam We for breach of a commer- ages are not recoverable 4 n 3. See 5Recovery damages for of contract of mental distress breach permissible damages "reasonably said to nevertheless have been in if such can contemplation parties time the at the contract Kewin, supra, made.” 409 Mich 419. was 601 v Auto-Owners Opinion op the Court of tor allegation proof "absent cial contract the breach.” independent existing conduct tious Valentine v General 420-421; see also 409 Mich Credit, Inc, 263; 362 420 Mich American (1984). however, was open, Left NW2d separate whether question appeal: raised this infliction of emotional tort claim for intentional insurer’s on the basis of an brought can be distress claim.6 handling an insured’s dilatory plaintiffs has been tort forwarded theory mental recognized permit recovery elsewhere to from the damages apart separate distress of an for breach recovery contractual Life of See, e.g., Eckenrode v policy. (CA 7, Co, Strader 1972); America Ins F2d (ND Ill, 1980); Hall, Inc, Union Supp 486 F Co, Grinnell Mutual Reinsurance Amsden v (Iowa, 1972); Fletcher Na v Western NW2d Life Ins 376; Rptr 3d 89 Cal tional App 10 Cal Is Holmes, see, (1970); ALR3d 286 generally, life after Gilmore’s death contract? —In there faith good from a of commercial study ductions contracts, 65 330, L R ñrst-party insurance Cornell (1980). Indeed, although case 356-359 the instant appellate marks affirmance apparently the first context, in this our Court a mental distress award (at acknowledged has least Appeals previously infliction of the intentional implicitly) viability han alleging dilatory suits theory DAIIE, Butt v App claims. 129 Mich dling of See Butler v 218-219; (1983); 474 211, 341 NW2d DAIIE, 727, 735-737; 781 Mich 329 NW2d App 121 Co, Ins (1982); Holmes Allstate App 119 Mich (1982) (workers’ 713-718; 326 616 com 710, NW2d v State Mutual Frishett Farm action); pensation 6 ("We Kewin, express supra, opinion on the 409 Mich 421. no See recog Michigan Appeals accuracy nizes a tort Court of the observation distress.”) infliction action for the intentional of mental Mich Opinion op the Court Co, 143 NW2d App

Automobile Mu- John Hancock (1966); see also Bolden v (ED 28, Mich, F 29-31 Supp tual Life Ins 1976). recognized intentional

Those courts which have separate theory as a infliction of emotional distress embraced the Restate- generally have recovery ment definition tort: Causing Emo- Outrageous 46. Conduct Severe § tional Distress (1) by extreme and conduct One who recklessly or severe emotional intentionally causes subject liability is for such distress to another emotional distress, bodily harm to the and if other it, bodily from for such harm. results [Restatement Torts, 2d, 46, p § 71.] (1) in this Four elements are identified definition: (2) conduct, intent or outrageous” "extreme (4) (3) causation, recklessness, "severe emo- See, Burns, 612 F2d Ross v e.g., tional distress.” 1980). (CA 6, herein failed to make plaintiffs We find showing proof of either "extreme and minimum outrageous” emotional distress” conduct "severe defendant’s motion for required to withstand directed verdict. Outrageous

A. Conduct Extreme An comment summa- oft-quoted Restatement "ex- prevailing rizes the view of what constitutes outrageous” treme and conduct: liability have The cases thus far decided found only been ex- where defendant’s outrageous. enough that treme and the It has not been has acted with an intent which defendant criminal, or that he intended tortious or even has distress, or even that his con- to inflict emotional Ins Co v Auto-Owners op Opinion the Court "malice”, or a has been characterized duct which entitle degree aggravation would tort. for another plaintiff punitive to only the conduct found where Liability has been character, so ex- outrageous in has been so treme bounds possible go beyond to all degree, as atrocious, regarded decency, to community. civilized utterly intolerable the recitation is in which Generally, the case one average commu- member of the facts to an of the nity tor, against the ac- arouse his resentment would exclaim, "Outrageous!” him to and lead to clearly not extend mere liability does threats, insults, petty op- indignities, annoyances, edges rough trivialities. The pressions, other filing good of a deal of society still in need our are down, plaintiffs must neces- and in the meantime expected required to be hardened sarily be rough language, and occa- a certain amount of sional unkind. There is no occasion definitely inconsiderate and acts that are for the law inter- feelings some are every vene in case where one’s express must freedom to hurt. There unflattering still be safety must opinion, and some valve tempers may blow through which irascible be left Torts, steam. relatively off harmless [Restatement 2d, d, 46, comment pp 72-73.] § qualifies further comment Another Restatement tort: by this proscribed the conduct conduct, although it otherwise be would privileged under outrageous, may be extreme and the circumstances. liable, for The actor is never example, he done no more than insist where rights permissible way, even upon legal his is though he well aware that such insistence distress. to cause emotional certain [Restatement 2d, 46, Torts, g, p comment § 76.] tort Further, setting, a action in a contractual from con- distinct duty on a breach must rest 604 Mich 594 op Opinion the Court Thus, in Hart Ludwig, v tract. 559; 347 Mich 79 (1956), NW2d 895 we recognized that mere nonfea of sance obligation contractual cannot give rise to negligence cause of action in tort:7 The action of tort for its foundation the defendant, negligence of the and this means more promise. Otherwise,

than a mere failure to meet a of a breach note, any promise or pay other to money, would negli- sustain an action tort for gence, the ure. promisor and thus the be made liable for all consequential damages arising from such fail- rule, general As a there must be some active negligence must support or misfeasance to tort. There duty be some breach of distinct from breach bar, of contract. In the case at the utmost shown against able contract. Gilbert the defendant is that there was unreason- delay part performing executory on its (quoting 169, Mich 563 from Tuttle v [347 Co, Mfg 174-175; Mass 13 NE 465 [1887]). Emphasis added.] Kewin, Moreover, supra, we declined to recog a separate nize cause of action for bad-faith breach contract, of an although insurance some of our sister states have chosen to do 423.8 so. article, supra, p ("Apparently, See also Holmes 359. no court has outrageous Thus, found conduct without affirmative conduct. a mere though liability pay, denial of refusal to even unreasonable and faith, outrageous.”) bad is not deemed receptiveness The of our state sister courts the tort bad-faith Compare breach of an insurance contract has been mixed. v Noble (1981) (tort Co, 188; National American Life Ins 128 Ariz 624 P2d 866 1980) (tort Co, (RI, recognized); Bibeault v Hanover Ins 417 A2d 313 recognized), Pennsylvania National with D’Ambrosio v Mutual Casu- (1981) (tort Co, 501; alty rejected); Spencer Ins 494 Pa 431 A2d 966 (1980) (tort Co, 914; Casualty Aetna Life & Ins 227 Kan 611 P2d 149 rejected); Lawton v Great Southwest Fire Ins NH (1978) (tort existing rejected). adequacy legislative A2d 576 The primary refusing recognize remedies has been a faith tort. See factor in the bad- D’Ambrosio, Lawton, supra; Spencer, supra; supra. express opinion existing legislative We no at this time whether preclude recognition similarly of the tort of inten- remedies should tional infliction of emotional distress in the insurance context. Auto-Owners Roberts v op Opinion the Court recov preclude not do principles foregoing of emo infliction intentional an insurer’s ery However, adherence our continued tional distress. observations combined with precepts, to these comments, significantly in the Restatement noted in which a of circumstances range limits can outrageousness showing facie prima mere failure context. made more, will obligation, without a contractual pay purposes amount (defen Bolden, 31 Supp 422 F supra, See this tort. where granted motion summary judgment dant’s any out of "does not arise claim plaintiffs claim”); his not paying other than the insurer Inc, Credit, 123 American v General Valentine (1983) (pleading 521, 591 527; 332 NW2d App Mich alleged), breach intentional only where insufficient (1984); Van 628 256; 362 NW2d aff'd 420 Mich Co, 114 Mich Ins Fire Fidelity American Marter v (1982). addition, 171, 185; 318 679 NW2d App claims, for verification request insurer’s similarly evidence of harassment the absence which we conduct, of conduct falls short egregious Butt See outrageous.” "tortiously consider would (1983); 474 DAIIE, 211; 341 NW2d App 129 Mich 710; 326 App 119 Mich Holmes v Allstate (1982). 616 NW2d following facts on the plaintiffs rely

The instant and outra- "extreme establishing Auto-Owners’ (1) to supply failure Auto-Owners’ conduct: geous” claiming replacement a form for with plaintiffs no- benefits, statutory though even services in effect thereto had been relating provision fault (2) responding delay Auto-Owners’ years; for six six (roughly services replacement to the claim after accident, and two months after months docu- their own created and submitted plaintiffs (3) Auto- benefits); claiming replacement ment Opinion of the Court replacement denial of the bene apparent Owners’ Recognizing apart tortious conduct fits claim.9 actually replacement "denial” of the services claim Auto-Owners’ request for further verification: took the form a 8, January Letter of 8, "Bush, Luce, Henderson & Bankson "Jan.

Attorneys at Law Bldg. 412 Port Bank Mich. Nat. Huron, Mi. 48060 Ralph and "RE: Our insureds Doloris Claim X7-6004-79 Yours-Christine Rodzos [sic] "ATTN: S. Keith Bankson Mr. Bankson:

"Dear acknowledge receipt your letters of November is to "This 13, 1979. and December affidavit, your 'Description would consider we "Under of Services’ mileage only in consider need verification the doctor and would two and from [sic] law, portion support. we would the medical of the No-Fault Under "Description of Services” the other items under come only listed items do not if verified the doctor. These affidavit under the work loss (see #3107, portion law Section of the No-Fault b). part part They a. under Section come #3107 "Very truly yours, "District Claim Office "E.H. Selden "Claim Representative” clarity, Although inasmuch as the claim not a model of the letter is (under 24.13107[b]) 500.3107[b]; replacement MSA MCL services for was treated (under expenses MCL claim for as a Auto-Owners reasonably 24.13107[a]), may be construed 500.3107[a]; as a denial the letter services claim MSA replacement as submitted. of the letter, foregoing was no further plaintiffs there received the After suit was instituted until this with Auto-Owners communication shortly insurer the liability Thus, the situation where 6m this unlike was thereafter. knowledge exchanges of through ongoing with the insured adamantly denies necessity payment, and in bad faith for but might outrageous conduct a claim of on which —facts Eckenrode, supra. based. See v Auto-Owners op Opinion the Court required contract the insurance from breach infliction for intentional a claim make out to neverthe- distress, Appeals the Court emotional sufficient supplied had plaintiffs that found less to outrageous” conduct "extreme evidence of the jury: the to sending claim justify than significantly more This case involves case is Plaintiffs’ pay mere failure benefits. intentional allegations defendant’s upon based applying from for bene- them attempts to frustrate allege defendant was informed that fits. Plaintiffs injuries of Christine’s of the nature and extent incurred therefrom but the costs of services portion only supplied application for small that Defendant claims six payable benefits. it years after the enactment no-fault statute application forms have for benefits did not plaintiffs requested This under act. forced plaintiffs procure apply counsel for no-fault Considering the fact defendant was benefits. that had a facial scar informed Christine severe might plastic surgery, its necessitate conduct frustrating plaintiffs’ attempts apply policy benefits and define the limits could properly be considered as extreme and by jury. App [135 598-599.] disagree We with this of the evi- assessment is hardly dence. While conduct Auto-Owners’ plaintiffs alleged than praiseworthy, no more failure filing Auto-Owners to facilitate of a claim, replacement of at delay services most six filed, to the claim and the responding months may denial of benefits Such prop- owed. erly purposes be considered unreasonable assessing penalty pay- for overdue statutory plaintiffs’ against ments as well as fees attorney Opinion of the Court falls However, record evidence Auto-Owners.10 considered the conduct which is "far short of Butt, supra, p 219. There outrageous.” tortiously harass set out indication that Auto-Owners no disclose nor does the evidence plaintiffs, these fairly be characterized may course character, in in and so extreme "so as all degree, go beyond possible as to bounds atrocious, as decency, regarded and to be Re community,” a civilized utterly intolerable Torts, 2d, d, 73. At p statement comment § most, plaintiffs’ claim dilatory handling imposition of justifying faith” constitutes "bad above, set but for which statutory penalties forth can separate Court held no cause of action this has Kewin, supra, 423. See 409 Mich lie.

B. Severe Emotional Distress explains the emo- commentary

The Restatement follows: requirement tional distress applies only The rule stated this Section resulted, fact where the emotional distress Emotional passes it and where is severe. distress names, suffering, as mental under various mental such shock, anguish, mental or nervous unpleasant reac- highly like. It includes all mental tions, shame, horror, grief, fright, humilia- such as tion, embarrassment, anger, chagrin, disappoint- ment, only it is worry, and nausea. It is where Complete emo- hability extreme that arises. in this tranquillity tional world, is seldom attainable degree trivial and some of transient price living is a part emotional distress among law people. only intervenes where is so that no reasonable distress indicted severe (under (under fact, penalties payment in interest for overdue $57.96 $5,880 24.13142[3j) attorney 500.3142[3]; fees MCL MSA against 500.3148[1]; 24.13148[lj) assessed Auto-Own MCL MSA were judgment. ers Ins Co Auto-Owners op Opinion the Court it. expected to endure [Restatement man could Emphasis Torts, 2d, j, p 77. comment added.] § result, need not Further, although bodily injury that "more suggests commentary the Restatement where required outrage” may be way Id., alone. injury emotional based on claim is . k, 78. p comment distress of severe emotional evidence

Plaintiffs’ following testimony entirely consisted and Delores Roberts: Ralph Examination

Ralph Roberts — Direct this? paid one nickel of Q. you Have ever been paper A. of the —on that there. Not has that you make feel? How Q. How does that you made feel? Well, disappointed or

A. it make me kind of mad.

Q. upset that? Get about

A. Yes.

Q. Why? Well, my payments and that for the they A. took insurance. Q. you How have felt ever since this accident '79, April

happened today? say Let me two and ago, they paid anything yet? years a half have bills, A. this the doctor and Just one bill —two the ambulance. you it make

Q. Why does mad? (No response.)

A. mad, Q. you really? it Does make A. Yes.

Q. Why? mad, said, they A. me like I because take Makes money payments they for the and I think my should pay part. off their go hospital, Ralph, Q. You haven’t had to to the this, being upset you?

over about have Mich op Opinion the Court A. No. any having Q. Nobody is claiming they are that nature, are anything of

kind of breakdown they? A. No. about Q. upset angry and concerned You are

it, you? aren’t A. Yes. pay Q. they since refused you have been And now; '79, years two over summer right?

A. Yes. Examination Delores Roberts —Direct paid Q. Ralph you testified haven’t been And has services; is that correct? any replacement A. correct. That’s

Q. you feel? does that make How A. feel mad. It makes me Q. Why? Because,

A. figure pay I if the insurance we their at stand behind company they should least policy.

Q. long you way? felt this How have A. injured way this ever since she’s been I felt reported and it was to Churchill’s. this accident Roberts, not Q. you say, Mrs. to belabor Would you? simply emotionally this distresses point, that Yes, A. it does. Q. go or you’ve never had to doctor And that, you?

anything like have

No, A. sir. anger of emotional be an indicia Although may even distress, testified to does not the reaction contem- the level of emotional distress approach requiring drafters the Restatement plated by man expected reasonable could that "no Rather, is more consis- plaintiffs’ anger endure it.” v Auto-Owners C.J., J. Opinions Levin, Williams, accompanies normally that which tent with obligation. no There was of contractual breach disruption depression, grief, of life of evidence depression. anxiety style, or of treatment plaintiffs proved by was, as a matter The distress support law, cause action. this insufficient

Ill seventy-six pages Judging of annota- from accompany currently § 46 of Second tions Torts, clear that tort it is Restatement distress infliction of emotional intentional variety acceptance, gained widespread fac- in a sister contexts, in our states. tual the courts proofs plaintiffs’ even failed Because we find prima for relief under facie claim make out a to the Restatement policy

definition, our review both of gen- adopting implications tort this allowing recovery propriety of such and of the eral in which those concerns are must await a case context necessarily presented. Ap- judgment of the Court of We reverse modify judgment peals the trial court damages. vacating mental the award of distress JJ., Riley, Ryan, Brickley, Cavanagh, con- Boyle, with curred (concurring). re- in the C.J. concur Williams, I join facts, but have this Court on these would

sult growing courts of our sister states the trend the recognizing tort intentional infliction the exemplified by § 46 of distress as emotional Torts, Restatement 2d. agree (separate opinion). I with Levin, plain-

signers opinion that of the Court requirements of meet the threshold tiffs failed to Mich ..[Oct by Separate Opinion Levin, J. of inten- claim prima facie to make out proof distress. of emotional infliction tional "formally draws back from the Court Although infliction of intentional tort of adopting]” jurisprudence, this state’s distress into emotional it should be question whether that recognizing facts, it on these not be decided adopted need look favor prepared that the Court is intimates on the This focus this "modern tort.”1 on ably compen tort action to of a development potential and dilatory bad- complaining plaintiff sate a impels me company of an insurance faith tactics previously views and to reiterate separately write case, issue in this underlying on the expressed litigation. civil unjustified namely, with beleaguered justice system The civil and litigation plaintiff from both unjustified actions of a lawsuit —nuisance defendant sides and stonewall tac- plaintiffs some commenced defendants. some insurers and other tics ultimate re- that has the judicial body As the judicial problems to address sponsibility harassment, unneces- delay, that make system an insured effective tactics for both litigation sary insurer, recog- question whether we should cause of action —that would nition of still another litigation randomly increase the burden compensation a fortuitous amount provide cases, Dozorc, 412 Friedman v of isolated handful (1981) (opinion 57; 312 NW2d J.) means of ad- the most efficacious —is Levin, us. which continue to beset dressing problems that this Court should opinion I am of the reaching majority are constrained from states "we formally adopted into modern tort should be as to whether this issue our limited, added) although suggests (emphasis jurisprudence” later prima range facie in which a there is a of of circumstances showing outrageousness made in the insurance context. can be Ins Co v Auto-Owners by Separate Opinion (E) 2.114(D), compensation provide enlarge MCR resulting unjustified from loss pecuniary for all put and bar should Both bench litigation. to enforce expected are trial judges notice that on it that who can show litigants and that this rule in the relief can obtain not been enforced courts. appellate

I case, that the Roberts in this holding The actual of requirements proof the threshold failed to meet intentional facie claim of prima out a to make distress, supported is well infliction of emotional agreement, general to be appears the cases. There Court, opinion expressed obligation, a contractual pay "mere failure more, not amount will without . . . .”2 Illinois, Iowa, Minnesota, Alabama, Arizona, Florida, The courts of York, recognize the District of Columbia have declined New cause the gravamen of when the of action in tort for emotional distress pay. complaint delay or refusal to was the insurer’s Court, Supreme v Blue Cross-Blue Shield in Vincent The Alabama (Ala, 1979), Alabama, Inc, the evidence 373 So 2d 1054 found of insufficient to infliction disallowance of claims under rude treatment of Casualty insured recovered support for intentional claim of the insureds resulting from the insurer’s initial of emotional distress preexisting condition exclusion Security Fire & the insureds. But see also National infra, Bowen, (Ala, 1983), n 21 where the 447 So 2d 133 Co v egregious facts. on more Arizona, App 458; 605 124 Ariz In Davis v First National Bank (1979), appellate court concluded P2d 37 that a bank and insurer the Arizona intermediate alleged distress were not liable for emotional contract, delays attempts a loan from to rescind to have resulted payment benefits, coverage attempts disability to restrict disability benefits. Supreme quashed of the district Court the decision The Florida holding intentional had a civil action for a deceased court support an action for sufficient to infliction of emotional distress wrongful proof death, company of lack of demanded where the insurance benefits, though payments eligibility money even and withheld home, nursing the stress to a forced the removal of deceased Metropolitan Ins Co v probably Life to her death. which contributed 1985). (Fla, McCarson, 467 2d 277 So Mich J, Separate Opinion Levin, question presented, sure, to be The critical —not a cause of this case—is whether facts may an maintained on evidence that

action prac engaged in unfair claim-settlement insurer tices, refusing pay without to a claim such as *3 investigation, interposing conducting a reasonable (1983), Co, 441; 95 2d 448 NE2d 866 Robertson v Travelers Ins 111 In delay not Supreme that alone Court held vexatious will the Illinois support Co, pay even fire loss selves outrage. in v Ins the And Tobolt Allstate an action for tort of (1979), 57; App to 393 an insurer’s refusal 75 111 3d NE2d 1171 outrageous proceeds policy was not under a homeowner’s the indigent though the insureds rendered as a result of were provide life for them- unable to the necessities of were and their son. policy immediately pay to on a insurance failure fire An insurer’s delay "begin approach outrageous where the even to conduct” did not investigation Supreme in case of due to an the Iowa Court was arson Co, 252, NW2d 255 v Grinnell Mutual Reinsurance 203 Amsden 1972). (Iowa, Court, Supreme Haagenson v National Farmers The Minnesota 1979), Co, (Minn, Casualty Property 277 652 Union & NW2d held, notwithstanding finding jury’s the that an insurer’s conduct "intentional, payment delaying in able for bad-faith breach of contract and stated of no-fault benefits was malicious and faith,” punitive damages not that emotional and were recover- bad that a malicious into a tort action. did not convert contract action motive Co, 301; 104 AD2d the New case of Riffat v Continental Ins York (1984), appellate the court concluded 478 NYS2d 635 intermediate pay dismemberment benefits that an insurer’s refusal to accidental tort; remedy of was an action did not state a cause action Bingham- v Mutual Ins Co of of contract. Accord Bruno Home breach 1169; (1983); ton, 459 136 v International 91 AD2d NYS2d Manolis (1981). Buffalo, of 83 461 Life Ins Co AD2d 443 NYS2d (DC 1982), Hospitalization, Inc, App, Group v 443 A2d In Sere (1982), that a directed cert den US 912 court concluded outrageous proper was on the issue "extreme conduct” verdict pay request failed for additional where the insurer information from insured was to because honored. (ND 1980), Hall, Inc, Ill, Supp 486 F See Strader v Union judgment by summary dismiss a claim where the court declined to based on the claim and investigate company’s an failure to merits coverage, insurance alleged misrepresentation nature gives type stating that of abusive that this constituted behavior infliction of emotional harm. Contrast rise to tort of intentional (SD 1981), Supp Iowa, Sigler Benefft Life Ins 506 F v Mutual (CA 8, 1981), an 663 F2d 49 where insured’s contentions that aff'd insurance for accidental failing investigate maliciously by company acted to a claim by forcing plaintiff to initiate death benefits and action, thereby exposing public legal her embarrassment because Auto-Owners Separate Opinion or to in fact to harass grounded not well a defense an in delay,* compelling unnecessary cause refusing to recover or litigation institute sured to policy by due under an insurance amounts pay inadequate amounts.5 offering claim-settlement agree All unfair would might some contrary public policy, practices are recog- this Court does not While "outrageous.” say the present action on the facts of a cause of nize range of circum- case, it a limited indicates outrageous con- prima showing facie stances a This context. be made in the duct can for "intentional of a cause action suggestion boundaries is made without conduct” Nor bar. are for the bench or guidelines spelled by references out properly boundaries Torts, 2d, 46, the accompanying the Restatement § of annota- "seventy-six pages or to commentary, 46 ... .” currently accompany tions that § commentary illustrations The twenty-two the Restatement the blackletter of accompanying Torts, 2d, 46, that had based on the cases are § experience, were not to from found her husband’s death an autoerotic granted. supported by summary judgment was evidence and 1972) 4 (CA 7, Co, 1 Ins 470 F2d In Eckenrode v Life of America law), injury (applying a for severe emotional Illinois cause action compromise claim "invited” a stated where an insurer was falsely tion—in the police investiga- implying payment a to it had valid defense —a duty pay. v Othman Globe Indem- face of a clear to Cf. 1985) (CA law), Co, (applying where nity California 759 F2d 1458 support a cause the evidence did the court concluded conduct,” "outrageous ac- insurer’s unreasonable but the action for handling the denying of the claim—in reconsideration tions before through rights the insured to lose his with intent to entice claim application question a of limitations —would raise of the statute Co, 566; Gruenberg 3d jury v Aetna Ins Cal under of bad faith (1973). Rptr 480; 510 P2d 108 Cal supra. v Sigler n 3 In Debolt Benefit Life See Mutual (1978), Omaha, App NE2d 373 3d Ill Mutual of ultimately disability payment income delayed ceased insurer forcing and appel plaintiff employ and file a lawsuit. to counsel plaintiff cause of action for failed to state a court held that late intentional of emotional distress. infliction Mich Separate Opinion by Levin,

then been decided. A review of the illustrations that, indicates part, most are far they afield from the present case. was Liability found where there were threats of physical injury to the ****6 relative, plaintiff or a there were threats of de struction of or of a property relationship with the plaintiff's employer,7 reports false to injury a made,8 relative were knowingly there were threats of or actual false arrest or imprisonment,9 and

6See Illustration Number 2: "A, president collectors, of an association of rubbish B summons meeting association, presence to a intimidating and in the of an group territory of its rubbish will beat him collecting of associates tells B that B has been rubbish in regards exclusively which the association allocated to one pay proceeds A members. demands that B over the of his collection, B that if tells he does not do so the association up, destroy truck, put his him out of business. B is badly frightened, subject and suffers severe emotional distress. A is to liability also distress, illness, to B for his emotional and if it results in A is subject liability to Bto for his illness.” 7See Illustration 7: Number "A, creditor, seeking B, to collect a debt from B sends a series of envelopes bearing picture lightning letters in lurid strike, about to repeatedly it, bringing which A as a threatens suit without deadbeat, man, criminal, B reviles a dishonest and a garnish wages, employer threatens to his to bother his so much that discharged, up tight B will be and to "tie B as a drum” if he does not pay. subject B liability suffers severe emotional distress. A is to B.” 8See Illustration Number 1: practical joke, falsely "As a A B tells that her husband has been badly broken. B B for her illness, accident, injured hospital legs and is in the with both subject liability suffers severe emotional distress. A is resulting emotional distress. If it causes nervous shock and subject liability A is to B for her illness.” 9See Illustration Number 5: "A, private detective, represents on B calls himself to be a police charge officer. espionage He threatens to B arrest on a person unless B surrenders letters of a third which are in her possession. is resulting B suffers severe emotional distress and illness. A subject liability to to B for both.” and see Illustration 6: Number "A, principal school, high B, schoolgirl, of a summons a to his office, abruptly and accuses her of immoral conduct with various men. hour, prison A bullies B for an and threatens her with and with public disgrace suffers parents for herself and her unless she confesses. B distress, resulting subject severe emotional and illness. A is to liability to B for both.” v Auto-Owners Ins Separate Opinion a occurred10 —such as where humiliation public bathing with a suit that provided woman was group of a presence in water in the would dissolve based on only men women. The illustration and supposes adjuster of an insurance abusive behavior for the hospital a room an enters adjuster that and, know settling an insurance claim purpose condition, acts in a ing plaintiff’s weakened causing rude severe emo and manner boisterous attack.11 and a heart tional distress Number 3: See Illustration swimming gives party at an exclusive resort. B "A is invited to a bathing will in water. It does a suit which he knows dissolve her dissolve while she men and women whom rassment, shame, leaving presence swimming, her is naked just A she has met. suffers extreme embar- subject liability to B is to A for and humiliation. her emotional distress.” maid, "A, mentally old has the delusion and deficient eccentric digging pot yard, always gold a is buried in her back and is that this, yard, pot Knowing in her and B buries a with other contents it. when triumph up city digs A it causes her to be escorted hall, public pot opened humilia- is under circumstances of where the resulting A suffers severe emotional disturbance tion A. subject liability B for both.” illness. Torts, commentary to the Restatement illustrations 46, 2d, part most not based on insurance cases. The two are for the § exceptions indicate Nos. 7 and which that ex are Illustrations may of an be found on the basis abuse treme of (comment e) authority position gives power over a the actor the other which knowledge other is or on the basis of the actor’s f). (comment peculiarly susceptible to emotional distress reporter’s bullying notes to Illustration No. 7—the tactics analogous adjusters of insurance in two creditors —cites the Oklahoma and Co agent’s behavior Mississippi & one case. National Life Accident (1940), Anderson, 180; P2d an insurance 187 Okla berating uncomplimen- her in at an insured’s behavior home— physical tary language, charging that she was not sick—caused injury motion for to defeat a result of mental shock and was sufficient however, plaintiff, judgment for the verdict. The directed reversed, of PaciSc Mutual Life Ins Co of trial the cause remanded for a new because was was jury instructions. Accord erroneous California v (1938). Tetirick, 37; 89 P2d 774 In Continental 185 Okla (1935), Garnett, jury Casualty 161 So 173 Miss verdict Co v agent conduct was affirmed where an insurance for wilful and wanton compensation of an insured and denied a claim went the home insulting language policy and used and abusive under health presenting charging claim. a false and fraudulent the insured was 594 by Separate Opinion commentary accompanying

The author Torts, 2d, that recognizes the Restatement § heartlessness, even if it causes callousness distress, not does and emotional consequences dire emo actor tort liability alone the subject illustra twenty-two In one of the tional distress. tions, and her children a evicts a woman landlord states commentary who are and ill. destitute heartless, is the landlord that while such permits him to done more than the law has no upon legal rights permissible a do.12 Insistence is aware that such way, though even actor distress, to cause emotional insistence is certain him to liability. does not subject not, properly, Surely this Court has cannot commentary or the adopt either blackletter 46 or seventy-six pages accompanying § ex application concepts, annotations.13 in the accompanying 46 and discussed pressed § largely Georgia from the case of Illustration No. 12 is drawn Brewer, App Interstate Accident Co v 56 Ga 193 SE Life & (1937). plaintiff There the recovered where an insurance condition, representative, knowledge physical insured’s with of an persisted forcing upon to her her went sick room settlement throwing yelling "[y]ou by of coins face and a handful in her doctor; ought you need a . . . .” don’t die 14. Illustration No. 685, 712-713; 410 Mich Smith v Allendale Mutual Ins (1981), this Court said NW2d particular application of a rule to a of facts "that common-law set upon can does language law rule. Unlike a the treatment of future distill the drafters turn whether those facts be characterized corresponding Restatement to the common- section statute, expresses legislative which directive for cases, primarily to the Restatement seeks teachings descriptive. of decided and is While its cases may predict 'the better sometimes strive to choose rule’ or shape law, development depends upon its influence its persuasiveness. particular Even where Restatement section endorsement, specific judicial received invoked underlying useful considerations.” cases where that section policies precedents be decided reference to the must analysis rule restated. Textual of the Restatement is only to the extent it illuminates these fundamental Ins Co v Auto-Owners Separate Opinion Levin, J. commentary, is a matter on in concrete cases deciding specific disagree. Only by which courts meaning give to the words this Court cases can and indicate commentary conduct” "intentional and agrees with the extent it to what terminology accompanying § 46 § 46 itself. might that unfair claim-settle- rationalize

One consequences practices ment can have might people as those that are serious some result from abusive physi- language and threats of injury in the or the other conduct described cal commentary twenty-two accom- in the illustrations argument panying But can Restatement. recognition in the tort also be made twenty-two does in the illustrations cases described principle may justify an of whatever not extension developed in those circumstances have been refusals to unjusti- pay money, wilful and however frequently necessary to finds it draw fied. The law developed principle one context be lines lest run ground in another. into liability delineating the extent of tort Decisions logic. They are are . . . than exercises in more policy re- pronouncements of social which should in- flect the often subtle balance of interests Jersey ob- Supreme Court New volved. served: (and justice) 'must defer "[L]ogic even abstract justification policy appraisal

overall for v changes in law.” judicial the common [Russell 502, Co, Transportation NJ Salem (1972).] A2d 862 analogies. inde- enough not invoke An [I]t pendent policy of the considera- re-examination separate implicated by the creation of such a tions Weber, 411 [Berger for. cause of action is called Mich Separate Opinion (1981) (Levin, J., 23-24; 303 NW2d 424 dissenting).] II Kewin v Massachusetts This Court declared Mutual Life Ins 401, 423; 409 Mich 295 NW2d (1980) that, allegation proof "absent breach,” exem independent tortious of a plary are recoverable for breach declaring, commercial contract. so this Court declined to follow a decision of the California Supreme Court "and to declare the mere bad-faith an indemnity breach of contract independent separately actionable tort and to mental thereby open recovery pain the door to suffering of a commercial caused breach contract.”14 Kewin reserved the question whether a for the intentional tort action can be maintained of emotional distress. infliction It to the insured or an makes little difference al- damages whether mental distress are insurer damages. Changing or tort lowed as contract not, form of action to one labeled in tort does context, damages a rule of justify the same factual that stated in Kewin and Valentine different from Credit, Inc, American 256; 362 v General 420 Mich Valentine, (1984). this Court de- In NW2d not damages were that mental distress clared employ- of an in an action breach recoverable denial of such dam- although contract ment than full plaintiff with less would leave the ages does not seek to said that the law recovery. We for all losses compensate suffered._ 566; 480; Co, Rptr Gruenberg 108 Cal Aetna Ins 9 Cal 3d Cf. (1973), Supreme devel- Court in which the California 510 P2d 1032 oped of an insurance bad-faith breach of action for a tort cause contract. Ins v Auto-Owners Opinion Separate Levin, J. fees, for mental attorney’s Recovery is denied manifesta- physical accompanied by anguish not recovery has been full tion, "make-whole” exceeds the performance the cost of where denied not, despite courts have promisee. The to the value regarding the dam- generalizations "make whole” ages tion compensa- recoverable, attempted provide for all losses. 261.] [420 circumstances— is under what question key damages distress label —mental under what are collectible.

Ill four decisions the Court cites opinion tort theory proposition standing for distress infliction of emotional intentional mental dis recovery recognized permit been con recovery from the separate damages tress pol of an insurance for breach tractual of America v Life Both Eckenrode icy. Hall, Inc, v Union (CA 1972), and Strader

F2d 1 (ND 1980), Ill, are federal cases Supp 486 F light In of subse Illinois law.15 apply purporting decisions, whether questionable it is Illinois quent decided today.16 would be so they Strader, the Illi- to Eckenrode Subsequent will make McCall would the federal Debolt (1983), and failure ing against alleging "outrageous” law. emotional "outrageous the status of her In The Illinois conclude if faced with v Mutual of the court v Health Care Service an insured an educated distress. See also Tobolt absence of a settled court, or severe” provide appellate even several said that Omaha, claim, "guess” garnishment as to amount plaintiff n 5 courts have which delays the same Corp, like supra. of what the question resulted in an action with accurate holdings, v Allstate Ins 117 Ill of her handling paying hospitalization question. of state consistently rejected App wages, highest intentional does of insurance claims. 3d But the conclusion law, information not constitute state Co, was not court of the state a federal court n 2 452 NE2d 893 infliction supra, conduct so hospital benefits regard claims 422 Mich 594 Separate Opinion by Levin, J. Supreme open question nois Court left plaintiff may whether a claim in tort emotional for resulting "outrageous” activity apart from distress delay delay vexatious in and of from itself will not and held that support tort an action for outrage. Co, v Ins 95 Ill 2d Robertson Travelers (1983). Robertson, 441; 448 Illi NE2d Before appellate similarly nois intermediate courts held relying, maintained, that such an action cannot be part, legislative provision in provision Michigan ery on a to a similar allowing

in law the recov attorney remedy as fees an insurer’s delay.17 A unreasonable court United States district light legislative has, in Illinois in taxing provision for costs if an insurer unreason settling ably delays claim, read Robertson precluding for the a cause action intentional resulting from an infliction of emotional distress insurer’s settling outrageous delay a claim.18 opinion majority is cited in the third case Co, 203 Mutual Reinsurance Amsden v Grinnell (Iowa, 1972), Supreme NW2d 252 where Iowa "recognized” the infliction Court tort intentional distress, on to the not but went hold that of emotional conduct in the case

then the Court did before begin

approach "outrage.” only In the even Co, supra, Mutual of Ins n 2 and Debolt v See Tobolt v Allstate Omaha, supra. n 5 distinguish cases as Fletcher the California such The Illinois courts Ins, Rptr App 3d 89 Cal Life 10 Cal v Western National (1970), theory plaintiffs inflic intentional on which relied for distress, not have a on that California did tion of emotional the basis provision permits analogous statutory provision to the Illinois which fees) (e.g., attorney recoup where an insured to additional costs pay Tobolt has been vexatious unreasonable. refusal to insurer’s Co, App Ill 3d 71. Allstate Ins (SD Ill, Supp 594 F v Mutual Omaha See Anderson 1984). declining recovery Robertson, for emotional tort allow provision distress, for vexatious a similar remedial relied on compensation payment benefits. delay of workers’ frivolous legislative provision 27. Michigan in n analogous discussed 623 Auto-Owners v by Separate Opinion Levin, J. case, said there was the court Iowa subsequent of emotional distress.19 evidence insufficient Ins, Life National 10 Cal Fletcher v Western (1970), the fourth case 78 376; Rptr 89 Cal App 3d recove theory this cited, recognize indeed does jurisdic in other Fletcher followed been ry.20 assaults included verbal the conduct tions where it has been prosecution, of criminal or threats where the behavior as well other cases followed Co, supra. n 2 The Reinsurance v Grinnell Mutual Amsden Dakota, Higgins South plaintiffs, Blue of Western Iowa & Cross (Iowa, 1982), appeal challenge on the trial did not 319 court’s NW2d ruling distress where an insufficient evidence of emotional hospital company for services had rescinded a contract insurance because preexisting condition. of a failure to disclose a first-party holding regarded case as the landmark Fletcher disability payments under a bad-faith refusal to make an insurer’s policy emotional ments to conclude gives for intentional infliction of rise to a cause of action disability pay- discontinued distress. There the insurer (and misinterpreting) seizing by certain medical statements on suffering from a condition which he that Fletcher was (and only paid may under therefore could contracted from a horse have payments), by provision and later the more limited for sickness congenital contending rather than a that Fletcher’s condition was regarding investigation injury. was undertaken result of recent this certed No upon congenital company a con- The then "embarked defect. persuade policy his Fletcher to surrender course of conduct” through disadvantageous eco- enter into a settlement or otherwise destitute). (he The insurance com- was disabled and nomic coercion pany was there was no evidence "outrageous,” it but claimed that conceded that its behavior was engaged negotiations privileged because it was settlement of severe emotional distress. (1) recovery in on two theories: court allowed tort The California (2) "tortious interfer- infliction of emotional distress and intentional property interest of its insured” —later become bad- ence with a sounding in tort. faith breach of contract case, Court, Supreme leading first-party in another The California withholding developed insurance in tort for bad faith an action 480; Rptr Gruenberg 108 Cal v Aetna Ins 9 Cal 3d benefits. (1973), damages, was allowed to recover all 510 P2d 1032 insured distress, by including deprive scheme to caused the insurer’s for mental policy. the insured of benefits due on a fire charges against encouraged bringing agent the in- of criminal arson, and, falsely implying he a motive to commit had sured knowing appear for an insurance exami- insured would not that the charges, during pendency insurer on of criminal relied nation the failure denying liability policy. appear pretense on the as a Gruenberg. expressly to follow in Kewin declined This Court Opinion Separate egregious.21In of the cases where far most

was less asserting Despite was that an insurer’s behavior numerous claims distress, relatively there are few inflicted emotional judgment summary the claim survived motion cases which and have awarded. In addition even in which been fewer Alabama, Indiana, Florida, California, recovery has allowed in been perceived application Washington, and in federal courts in Virginia, Oregon, and Illinois law. Supreme jury on claims of Court affirmed a verdict Alabama prosecution infliction of emotional distress malicious and intentional Bowen, (Ala, Security Casualty 133 Fire Co v So 2d in National & 1983). investigators private hired National The conduct the flashing investigate equipment Security fire loss of included to the bribing threatening they interrogated badge, persons to or their arson, threatening implicate physically in the insured the insured gunpoint forcing The him off the road. court characterized at such conduct as after . . . "so and so that no civilized atrocious barbaric expected person committed without be to endure the acts could suffering mental distress.” Sharp, Casualty 264 Ind NE2d In Fire & Ins Co v Vernon (1976), Supreme that insurer’s the Indiana Court found the attempt regard plaintiff from the with to exact additional consideration performing obligations separate under its a lawsuit before a the was "intentional and wanton” conduct and affirmed contract punitive damages. jury award of Equitable Society, complaint Dominguez Life 281 the The in v Assurance (Fla (Fla, 1985), 1983), App, stated a 438 So 2d 58 cause of action for the aff'd So 2d alleged that conduct where insured agent falsely represented had from a that she a letter insurer’s coverage plaintiff saying the was not and that doctor that disabled attempted longer policy the the no in force and to obtain was surrendering plaintiff’s signature policy. the In Ins Co v World (Fla (Fla, 1975), Wright, App, 2d 612 den 322 So 2d 913 308 So cert 1975), jury infliction of court affirmed a award for intentional the included where an insured’s bad-faith conduct emotional distress attempts up” given. "buy policy. And No facts were the additional (Fla Co, 1970), App, 2d 33 in Miller Mutual of Omaha Ins 235 So 1970), affirmed, (Fla, jury was and a cert den So 2d 423 verdict reversed, notwithstanding judgment on a inten the verdict count of tional infliction of emotional distress where an insurer’s salesman went to the had taken out charged plaintiff’s she ill and prior that she home after became agent knowledge policy the with illness. plaintiff physically policy took the from out the then door. walked Co, App 613; 590 P2d 1286 In Rounds v Union Bankers Ins Wash (1979), Washington appellate court affirmed a denial intermediate dismiss a for emotional distress for cancellation of motion to of a claim hospital policy. Virginia allegations in that A States district court held United policy perform, an insurer issued and without intent benefits, pay in cancer stated a cause bad faith refused Roberts v Auto-Owners Separate Opinion the circum recovery, an actual has been there case the insurance close to the facts are stances commentary in12 No. in Illustration described behavior, the Restatement. accompanying have been found to was where behavior cases unfair from tortious, distinguishable is readily combined that are not practices claim-settlement threats.22 or physical assaults verbal with Morgan v Amer- distress. intentional infliction of emotional for action (WD Va, Columbus, Supp 477 Family 559 F Life Co of Assurance ican 1983). Circuit, applying Appeals for the Ninth States Court of The United law, Farm Oregon jury’s in Green v State conclusion affirmed (CA 9, 1982), of a Casualty the behavior 667 F2d 22 fire & where, agent "outrageous” Farm after the State was State Farm adjuster of Green questioned set pressed investigation police that the had abandoned knew state arson, policeman adjuster and had himself as a identified fire, neighbors implying that Green Green’s about charged if he with arson it and told Green that he would against his claim State Farm. court Illinois in Strader States district The decision United supra, and Circuit’s v application Hall is in n 3 the Seventh Union discussed Life of is discussed Illinois in Eckenrode v America law supra. in n 4 many recovery of emotional distress of the cases where dicta, allowed, courts, against indicated that example, 407 company an insurance was See, recovery might case. be allowed another America, 648; A2d v of 122 NH 448 Prudential Ins Co Jarvis McCarson, (1982), infra, Metropolitan n 2 n 22 Life Ins Co v Co, App supra, Employers’ v It Ice 64 Or fire Ins Co Love Cream (1983), 784; egregious stating P2d 160 an conduct 670 that insurer’s amounting pay outrageous independent refusal to of bad-faith conduct— give rise to a tort action. —could 22 egregious cases than the In some where the conduct was more benefits, nonpayment simple the have denial of courts denied recovery in tort. 560; Exchange, App In Cluff v Farmers Ins 10 Ariz 460 P2d 666 (1969), appellate the Arizona that an intermediate court concluded failed to state a for intentional of emotional insured claim infliction adjuster attempted distress based on the actions of an insurance to who accept cajole” "threaten and the insured to for the a settlement wrongful death of her son the benefit of The Illinois without counsel. appellate that denial of intermediate liability court concluded an insurer’s disability policy, under a of the referral claim between offices repurchase policy disputed and offer to did not state a distress. Debolt Mutual of the settlement of a claim cause of v action for intentional infliction of emotional Omaha, supra. n 5 In Jarvis v Prudential America, supra, company n Ins Co of 21 an insurance terminated Mich 594 626 Separate Opinion of states that the Court opinion The of Court has, acknowledged implicitly, at least Appeals theory intentional infliction viability handling of alleging dilatory insurance actions cases, however, did the In of the cited claims. none money judgment of affirm a Appeals Court plaintiff.23 theory on that for awarded nursing disregard provision in a of reimbursement for services a indicating compensable; policy New this was not that some were indeed services concluded, law, Hampshire Supreme as a of that Court matter "outrageous And in United States conduct.” Farris v Co, (1978), Oregon Fidelity 453; Guaranty 1015 & 284 Or 587 P2d Supreme its that insurer’s refusal to defend Court concluded good liability policy, knowledge it has no insured under a with that recovery perform, justify did not distress reason or emotional punitive damages. 23 plaintiff Appeals generally The Court concluded that the prima infliction of failed emotional distress. See 781 more than a Co, recovery inflicted emotional distress sonably Appeals establish a facie case intentional DAHE, 727; App Butler v 121 Mich 329 NW2d (1982), plaintiff nothing pled the Court concluded that the where Ins of an contract. Harris v Citizens breach (1983), 110; sought App plaintiff 141 Mich 366 NW2d 11 where agent intentionally ground on the that the insurance had by unreasonably refusing pay or unrea- benefits, payment delaying of certain no-fault the Court not, "complained-of as a that the conduct. . . does concluded law, outrageous’ matter of rise to the level of 'extreme and conduct.” (1983), DAHE, App’211, See also Butt v NW2d holding by denying court motion for that the trial erred defendant’s summary plaintiff’s complained-of judgment on infliction of claim intentional requests for verifica- emotional distress. The tion of short of conduct— replacement payment of far service before benefits—"falls tortiously outrageous.” conduct which considered Co, App 676; plaintiff, in Hall v Citizens 141 Mich NW2d (1985), prima a infliction of failed to establish facie case intentional erroneously pursued subroga- emotional distress where tion ment of her Mich insurer wrong Hall, resulting garnish- against claim Patricia recently, Hajciar paycheck. Most Crawford & (1985), App 632; alleged workers’ 369 NW2d it was that compensation accepting lump-sum payment Court of into benefits were terminated to coerce the worker previously which he had refused. Appeals, recognizing of emo- that the intentional infliction action, separate tional distress constitutes concluded that the distinct and cause allege might prop- plaintiff did not erly be characterized as and atrocious. Appeals indicating that it Statements in decisions the Court 2d, 46, Torts, adopted definition set in Restatement § has providing forth proof a cause of action is made out of "extreme outrageous intentionally recklessly severe causes [which] 627 Ins v Auto-Owners Separate Opinion another,” do not indicate that such a cause of emotional distress dilatory on of an insurer’s action could be established handling evidence appears comparison the facts in of a claim. This on a Appeals cases. In Warren v June’s Mobile Home often cited Court (1976), Sales, Inc, Village App 386; 66 239 NW2d 380 & Mich quoted Appeals extensively from the Restatement of Court of both defining type accompanying commentary of situa- Torts and the tions where liability may that a landlord’s result. The Court held harassing verbally plaintiff in for her actions in complaints sale of her mobile infliction of emotional distress. The Court defendant prospective retaliation bills, plaintiffs attempts to about electric and his defeat home, did not constitute the tort intentional said, part, that may simply relying legal right have been on his to refuse a park tenant in the trailer he owned. The United States Circuit, Appeals applying Michigan Court of v determine cover amount to "extreme and for the Sixth law in Ross (CA Burns, 6, 1980), 612 F2d 271 looked to the standards of 46 to § newspaper’s publication photographs that a of an under- police public place, along identity, officer in a with his did not Similarly, Fry conduct.” v Sentinel-Standard, (1980), App 725; Ionia 101 Mich 300 687 the death of the NW2d newspaper report held Court plaintiff’s constitute Mich the emotional distress on merchant that a accidental his, body did not husband and that a female vías found with Burmeister, "outrageous” Ledsinger conduct. Cf. v (1982), 12; App 318 NW2d 558 where the Court concluded that plaintiff stated a cause of action for intentional infliction of allegations epithets racial uttered retail ejecting Ledsinger place his And in while from of business. Account, Rosenberg Rosenberg Special App 342; v Bros 134 Mich (1984), complaint NW2d 563 the Court concluded that a widow’s engaged her deceased husband’s brother in a course of extreme and outrageous conduct to inflict severe on her for the emotional distress purpose forcing her to sell her interest her deceased husband’s upon granted. business stated a claim which relief could be In often cited Frishett v State Farm Mutual Automobile Ins 688; (1966), (1966), App Mich plaintiff alleged statements, lv den 378 Mich 733 NW2d agents company of an insurance made false benefits, unjustly payment pri- withheld and misused information, plaintiff vate and as a result the distressed and became upset. Appeals summary Michigan suffered emotional The Court of reversed a defendant, granted judgment for the on the basis that accompanied recovery courts do not allow for mental distress unless Michigan by physical injury, and stated that "the law of as set forth 459; (1957)] in v General Motors consistent with the Law 1948 affirmed a distress Stewart Rudner Mich 84 NW2d 816 and Carter [349 Corp (I960)] NW2d [361 principles enunciated in the Restatement of the Rudner, Supp, . Torts 46 ...” In Stewart v this Court § against jury verdict the defendant doctor for mental damages arising perform out of the breach of a contract to Court has said that an exception, allowing This Caesarean section. damages, general recovery on the the of mental distress to the limitation recoverable for breach of contract was made in Stewart "personal because of the nature” of the contract. Kewin v Massachu- Mich by Opinion Separate Levin, J. states that have in a number of The courts proposed by act of a model adopted the substance Commissione of Insurance the National Association a com- to formulate generally declined rs24 have Co, supra, 415-416.At the same time Life Ins 409 Mich setts Mutual that contracts are commercial Court in Kewin held this nature and do General of In Carter v not within the reach Stewart. come Motors, injury may recognized mental result this Court although physical no effect and there was from emotional stress recovery compensation permitted cumstances. Neither Stewart nor under the cir- benefits of workers’ concept on § Carter relied 46 or conduct,” dilatory "outrageous nor did either case involve of handling claim. of an insurance Finally, Appeals the Court of said Holmes Allstate (1982): App 710, 714; 326 NW2d 616 "Although regarding a of action for there confusion cause has been distress, distinguished as from intentional damages infliction of emotional tort, independent anguish to an for mental incident issue, Michigan Michigan Supreme this has not ruled on Court Appeals infliction of emotional of delineated intentional Court distress has necessarily parasi- separate is not as cause action which a aggravating damages.” as cause of action an element tic to another Torts, 2d, set forth in the Restatement On the basis of standards agreed judge termi- with the trial erroneous Court § plaintiff’s compensation he to benefits when failed nation workers’ give permission for and failure to attend vocational rehabilitation present plaintiff’s to evidence of an intent treatment of back did not distress, any plaintiff nor was there severe emotional cause outrageous.” Defendant’s that could be viewed as "extreme and granted. properly was motion directed verdict Decep- Competition and Unfair or "Section 4. Unfair Methods Acts or Practices Defined. tive competition following hereby are defined as unfair methods deceptive practices or in the business of insurance: and unfair or acts "(9) Unfair Claim Practices. Settlement Committing performing frequency to or with such indicate practice any following. general business (a) provisions pertinent policy misrepresenting facts or insurance issue; relating coverages to at (b) upon acknowledge reasonably promptly failing com- act to policies; arising respect to claims under insurance munications with (c) implement adopt failing reasonable standards for to policies; investigation arising prompt claims under insurance (d) conducting refusing pay investi- without reasonable claims information; gation upon all based available (e) deny coverage failing of claims within a reasonable to affirm or completed; proof have been time after of loss statements Roberts v Auto-Owners Ins Co by Separate Opinion pract mon-law for unfair claim-settlement remedy legislation.26 enacted that Michigan ices.25 (f) attempting good prompt, faith to effectuate fair and equitable ably liability in which has become reason- settlements of claims clear; (g) compelling litigation insureds to institute to recover amounts offering policy by substantially due under an insurance amounts less than the brought insureds; ultimately recovered actions such (h) attempting to settle a claim for less than the amount which reasonable man would have believed he was entitled written or reference printed advertising part accompanying material made application; (i) attempting application on settle claims the basis of an which to, knowledge insured; was without altered notice or or consent making (j) payments claims to insureds or beneficiaries not accom- panied by setting coverage statement forth the under which the being made; payments are (k) making policy appealing known to insureds or claimants a from arbitration awards in favor of insureds or claimants for the purpose compelling accept compromises them to settlements or less arbitration; than the amount awarded in (l) delaying investigation payment by requiring the or of claims insured, claimant, physician preliminary or the of either to a submit report subsequent requiring claim proof and then the submission of formal forms, substantially of loss both of which submissions contain information; the same (m) claims, failing promptly liability to settle where has become clear, reasonably portion policy coverage under one of the insurance portions in order to influence settlements under other of the insur- policy coverage; ance (n) failing promptly provide explanation to a the reasonable basis policy applicable in the insurance denial of a claim or for the offer of a in relation to the facts or law for compromise An settlement.” Act Relating Acts and Competition Deceptive to Unfair Methods of and Unfair and Insurance, 4(9), Ashley, in Practices the Business of in § I, 2, Liability Damages, Appendix pp Bad-Faith Actions 6-7. 25 Minnesota, Supreme Kansas, Pennsylvania, The Courts of New Hampshire, Oregon, and federal district courts in Illinois, appellate and the intermediate courts of perceived law, application of Illinois statutory provisions declining have relied on in to award emotional damages recognize distress or to a common-law cause of action. Court, Pennsylvania Supreme Pennsylvania in D’Ambrosio v Co, 501, 507-509; Casualty National Mutual 494 Ins Pa 431 A2d 966 (1981), may supplement said that the insured not remedies in the Pennsylvania by Unfair Insurance Practice Act an action to obtain damages for emotional distress. Kansas, legislative provisions authorizing penalties, certain imposition fees, including lack of attorney against of costs and an insurer for good faith were seen as sufficient as an indica- remedies and legislature damages tion that the did not intend for emotional suffer- 422 594

630 by Opinion Separate Levin, J. through ing by an a tort action for bad to recoverable insured Co, 914, Casualty Spencer Kan 923- v & Ins 227 faith. See Aetna Lite (1980). 924; 611 P2d 149 Court, Haagenson Supreme Farmers National The Minnesota Casually, supra, Property & n 2 denied emotional distress Union percent damages, statutory ten entitled to recover the but the insured was delay penalty payment of no-fault benefits. for 607, Co, 613-615; Ins 118 NH v Great Fire In Lawton Southwest (1978), legislative availability remedies militated A2d recognition independent against of an action in tort for an wrongful delay settling first-party or insurer’s insurance claim. refusal settle Life Ins Mutual of gation Debolt intended provided prompt tional ably clear. reasonable ence made tendency promptly upon time relating equitable settlements of claims in which contract be isolated able due under an insurance amounts in addition harbor serious doubts implementing damages deceptive Guaranty And (e) (g) Compelling (h) Attempting (a) (f) (d) Refusing (b) (c) Failing "Sec. 2026. Failing Failing after Misrepresenting to Failing to part based Oregon distress, v Mutual of investigation the state for that incidents, written due Co, by in the third Co, policies. acts Omaha proof of an coverages at issue. Illinois person remedy engage exerted to affirm upon to the insureds. to 284 Or or to Supreme or communications with since the statute attempt application. adopt (1) expanding legislature to pay or insureds acknowledge promptly practices P the available information. loss would believe appellate on the are a course of conduct settle Omaha, Unfair methods Supp by allowing printed of claims 453, 458; claims without or pertinent statements have been party Court policy by offering substantially deny coverage a purpose.” subject type to 896, good claim in the business of implement n court advertising F institute context 587 P2d 1015 arising rejected a Supp legislative remedy 899-900 supra. facts faith the claimant was as to provides for less than the amount additional conduct and include: matter said, Farris v United States conducting respect under insurance to recovery of saying litigation reasonable standards Accord Smith v "[Wjhere (ND 111,1982); liability effectuate claim (SD competition material we are or to act claims desirability (1978). pressure completed. to claims indicating "[i]t civil insurance, a reasonable investi- 1984). within a reasonable to recover amounts has become reason- damages was emotional entitled, by prompt, accompanying policy judicial reasonably only legislature and unfair or policies. and wisdom of arising certainly less than Metropolitan perform Anderson v other than to loathe but Fidelity provisions persistent fair, for emo- decree.” which a recover- distress under refer- the the not the or & v Auto-Owners Opinion by Separate

IV present the contro- underlying premise of unreasonably defendant insurer is the versy to the owing plain- of benefits payment withheld appeal unjusti- this presented by tiffs. The issue — a subset in the insurance context —is litigation fied larger commence- problem unjustified defense. unjustified of actions and ment Dozorc, supra countersuit In Friedman —a lawyers who had against physicians commenced unsuccessfully brought malpractice previously was asked to mod- against them —this Court action expanded tort provide law to an the common ify the eliminating special require- remedy by injury In de- prosecution. for malicious ment actions so, to do this Court said: clining appear abrogation to favor Most commentators requirement to the special injury make difficult to main- more available less action tain. skeptically. should, however, Their be evaluated counsel grievance for a is lawyer’s remedy (i) application Attempting which to claims on the basis of an settle to, of, knowledge insured. notice or or consent was altered without Making payment policyholder beneficiary (j) or omit- a claims coverage being ting payment each under which made. (k) Making policy appealing insureds or known to claimants in favor of insureds or claimants for from arbitration awards accept compromises purpose compelling less them to or settlements the amount arbitration. than awarded (l) investigation by requiring Delaying payment or of claims insured, claimant, physician preliminary of either submit a requiring subsequent report and submission of formal claim proof then forms, seeking solely duplication of a verification. of loss (m) Failing liability promptly settle claims where has become coverage portion policy reasonably order policy. clear of the insurance under portions under of the insurance- to influence settlements other (n) explanation Failing provide promptly a reasonable applicable policy in the facts or law in the insurance relation to basis for denial compromise settlement.” of a claim or for offer of a 24.12026(l)(a)-(n). 500.2026(l)(a)-(n);MSA MCL Mich by Opinion Separate Levin, J. may professor lawsuit, or tort a student and law a experience and by predisposed particularly

be wrong- remedy a training preferred to see seeking a action. another tort action as ful tort of our soci- litigiousness excessive remedy for the limitations of off the do well to cast would ety, we only power curative ascribes perspective which a to lawsuits. 42.] [412 at the time expressed opinion, of the I remain decided,27 it is this was v Dozorc Friedman addressing of a means obligation provide Court’s problem litigation, of problem unjustified litigants litigants potential and confronts all an question I whether defendants. —plaintiffs is litigation more remedies and of tort expansion response. the correct interpo claim is the the plaintiff’s

If the basis defense, might it unwarranted of an sition to a the action scope to confine difficult Since against an insurer. an insured claim action, Court has this this commencement 2.114(D) (E),28 rule, MCR court adopted a whether certification formed both, and extension, the other incurred because this shall as to harass cost of attorney "(D) "(1) "(2) "(3) "(E) Friedman v rule, is warranted impose he or Sanctions litigation. after reasonable or not the Effect fees.” MCR appropriate the best of his pleading modification, party she has read the by the or to cause upon court, Dozorc, for Violation. by existing Signature. signer party is not on the motion parties 2.114. sanction, person or reversal supra, p 57 unnecessary delay inquiry, filing is that or her interposed represented by the amount pleading; law or a who which If a knowledge, signature of a (Levin, signed pleading pleading existing may pleading, party good any of the reasonable include an order or needless increase it, J., an of an or improper information, is well faith law; concurring). attorney, signed represented party, including on its own attorney argument grounded in violation purpose, constitutes reasonable initiative, or expenses for the in fact pay party, belief such or v Auto-Owners Separate Opinion may "appropriate providing sanction” be an imposed party an action or on a who maintains interposes belief, "formed not based on a a defense grounded inquiry,” fact,” in "well after reasonable purpose "harass[ment] or to cause or unnecessary delay.” to hold that

If this Court were against maintained can be a common-law action obligation to refrain of the an insurer for breach except upon interposing belief, a a defense from grounded inquiry,” "well reasonable "formed after purpose "harass[ment] fact,” not for the delay,” would think such an then one or to cause against any also maintainable action should be lawyer plaintiff who breaches or and his defendant obligation obligation. to an an insurer higher obligation than that owed is a insured by lawyer a to court. recognition sound, of an then

If that view open litigation may unjustified action tort large in a number the door to countersuits Physicians turned back Friedman Do- cases. encouraged might zorc, a to assert claim of be litigation against unjustified a or unwarranted malpractice plaintiff ac- has filed a medical who might plaintiff tion, in such an action be against respond like with a claim enabled alleged, might physician who, it should have acknowledged wrongdoing rather than have lawyers representing up. attempted to cover it might subjected parties find also themselves expect fashionable, I this becomes suit. Once litigation deluge and attendant increase likely long this Court is cost of insurance respond before open by questions that it has left its to the pronouncement today. adopted recently enlarging the

I favor would permit expressly the assessment court rule to Mich Separate Opinion Levin, J. against pecuniary loss29 of all actual amount lawyer person plaintiff his or defendant —and — litigation, suggested maintaining unjustified The sum recoverable should Friedman v Dozorc. charges in all fees and administrative include litigation, as well as reason curred because able prevailing income-producing attorney judge award a fees. The could also

litigant additional sum for loss of attributable

time business wrongful if the action maintenance of being capable calculated with reason amount is certainty. de The sum recoverable would be able hearing prompt post-trial before the termined in a original presided during judge action, who presentation of evi the rule allow for the should appel including testimony dence, witnesses, late review.

Having by judge, a made a such determination advantages framework, a in this number allowing jury emo a to award for over evaluating strategy First, tional for the distress. propriety litigation which is administered exclu susceptible sively by judges is more application and careful of consistent supervision strategy than a group laymen relies on a chosen at which day Second, for one and one trial. random often the meritorious question whether a defendant plaintiff subject liability to the for breach of so, and, if contract or otherwise damages, the amount of opportunities is tried without allowing prejudice attendant confusion and trial at the same time of both meritorious question separate question whether and the (or, plaintiff) indeed, acted outra defendant (or defending commencing) geously in the action. limiting pecuniary recovery loss, Third, to actual speaks "appropriate present rule of an sanction.” See n 28 29The might comprehend pecuniary Arguably loss.” text. this "all actual Auto-Owners v Opinion Separate dis for emotional allowing recovery thus damages, assess judge tress, relying on appellate control greater with combined compared findings judge’s exercise over courts excessive verdict, to avoid should tend jury’s to a litig good-faith intimidate might which awards ants.30 rule, and court enlargement

Such rule, go long way would of the court enforcement that, few in a problem addressing towards recognition states, has been addressed the so- context application outrage. tort of called (Levin, J., concurring). pp 61-62 Dozorc, supra, Friedman

Case Details

Case Name: Roberts v. Auto-Owners Insurance

Court Name: Michigan Supreme Court

Date Published: Oct 1, 1985

Citation: 374 N.W.2d 905

Docket Number: 72861, (Calendar No. 2)

Court Abbreviation: Mich.