Washtenaw County Circuit Court; Docket No. 81-21534 CZ; Unpublished
Judge William F. Ager, Jr.; Written Opinion
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Extra Contractual / Mental Anguish Damages
CASE SUMMARY:
In this lengthy written Opinion, Judge Ager ruled that in certain circumstances, an insurer's breach of its no-fault insurance contract may constitute the independent tort of intentional infliction of mental distress, and such tort will support a damage claim for mental anguish. Judge Ager noted that the Michigan Supreme Court has never specifically held that this state recognizes the tort of intentional infliction of emotional distress and the decision in Kewin v Massachusetts Mutual refuses to specifically comment on this issue. However, there have been a number of Court of Appeals decisions which have recognized this particular cause of action. He then went on to discuss these cases and noted that they had quoted with approval from the Restatement of Law, Torts, 2nd, Section 46, to the effect, "One who, without a privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress, and (b) for bodily harm resulting from it."
Judge Ager also commented on the recently decided case of Van Marter v American Fidelity (item number 517) and examined what effect that opinion had on the right to maintain an action for the tort of intentional infliction of emotional distress in no-fault first party cases. He acknowledged that the language used in Van Marter might be read to imply that the act of breaching a contract or the acts involved within that breach can never, as a matter of law, constitute the independent tort of intentional infliction of emotional distress. However, based on other Court of Appeals decisions, such a rule would not represent the current state of the law. Other cases clearly indicate that the definition of what may constitute intentional infliction of emotional distress clearly implies that a breach of contract could also entail an intentional infliction of emotional distress if the requisite elements of the tort are present in the breaching party's actions or.
Judge Ager also examined whether or not a cause of action for "bad faith" breach of the insurance contract exists in light of the Kewin decision. He concluded that such an action has not survived Kewin. However, the holding on this issue appears to be dicta because the plaintiff in the present action did not purport to base her tort claim on the grounds of bad faith but rather asserted a cause of action for intentional infliction of emotional distress.
