Michigan Court of Appeals; Docket No. 64515; Published
Judges Burns, Walsh, and Simon; Per Curiam
Official Michigan Reporter Citation: 135 Mich App 595; Link to Opinion 
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Extra Contractual / Mental Anguish Damages
CASE SUMMARY:
In to unanimous per curiam Opinion, the Court of Appeals affirmed a jury verdict in favor of plaintiff tor "intentional infliction of emotional distress" arising out of defendant's refusal to pay certain replacement service benefits to plaintiff as a result of serious facial injuries sustained by her in an automobile accident. In affirming the verdict, the Court held that the award was not contrary to the rule set forth in Kewin v Massachusetts Mutual. The Court stated, "the essence of the Kewin decision is that the insurer is not liable for intentional infliction of emotional distress for merely failing to pay benefits already due the insured."
The Court then went on to explain that the issue presented in this case involved a question of fact which was properly left for the jury. Commenting on the nature of the case and the burden of proof, the Court stated:
"This case involves significantly more than the mere failure to pay benefits. Plaintiffs' case is based upon allegations of defendant's intentional attempts to frustrate them from applying for benefits. Considering the fact that defendant was informed that
Christine had a severe facial scar that might necessitate plastic surgery, its conduct in frustrating plaintiffs' attempts to apply for benefits and define the limits of the policy could properly be considered as extreme and outrageous by a jury. Frishett v State Farm, 3 Mich App 688 (1966). . . .It is initially for the court to determine whether defendant's conduct may be reasonably regarded as so extreme and outrageous as to permit recovery. 'Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.' Restatement, Torts 2d § 46, Comment h, p 77."In this case, the issue of whether defendant's conduct is extreme and outrageous is an issue of fact. A determination of fact made by a jury should not be invaded upon by an appellate court if there is any credible evidence which the jury might believe which would permit it to find for plaintiff.... Considering the severe and personal nature of Christine's injuries suffered in the auto accident, defendant's overt attempts to frustrate plaintiffs from applying for benefits and then punishing them by failing to cooperate when they obtained counsel could reasonably be considered extreme and outrageous."
The Court further stated that "the fact that one sells insurance does not create an immunity from this tort."
Finally, the Court stated that in presenting such a cause of action to a jury, the practice of using lawyers "as expert witnesses to determine the legal sufficiency of a document and to interpret the law ... is improper and should carefully be avoided."
