Mental Pain & Suffering, Part 2
In negligence cases discussed in Part 1, where mental pain does not necessarily flow from the wrong, a plaintiff must suffer a physical injury to legitimize a damages claim for mental suffering. Courts are wary of claims of mental pain when unconnected to corporal injury, but as long as there is a physical injury to accompany mental pain, such damages are much easier to recover than damages for the separate tort of “intentional infliction of emotional distress”, which requires both outrageous conduct and severe distress. See, Breeden v. League Servs. Corp., 1978 OK 27, 575 P.2d 1374.
Mental pain and suffering is not a psychological condition: Ordinary mental pain and anguish claims do not place a plaintiff’s mental condition at issue for purposes of discovery. See, Ellis v. Gurich, 2003 OK 47, 73 P.3d 860 (wrongful death survivors seeking damages for grief not relying on mental or emotional conditions as element of claims); Shreck v. N.A. Van Lines, 2006 WL 1720545 (N.D.Okla) (plaintiff did not waive physician-patient privilege merely by seeking damages for “generic mental distress”).
In Davis v. Superior Court, 9 Cal.Rptr.2d 331 (Ct.App. 1992), the court explained allegations of pain and suffering from a “garden-variety” car wreck do not make psychotherapy records for treatment after the accident relevant. Asking for damages for pain and suffering “… does not tender the plaintiff’s mental condition so as to make discoverable post-injury psychotherapeutic records.” Id. at 332.
In Butner v. Western Union Tel. Co., 1894 OK 14, 37 P. 1087, the Oklahoma court described how mental pain is inextricably intertwined with physical suffering: “The law recognizes the mental anguish which is connected with and a part of the physical pain, not because it is the proximate result of the injury, but because it is so identified with the physical pain that to disregard it would be to disregard the physical suffering itself.” Id. at 1089. “The mental suffering regarded in corporal injury cases is of a wholly different character. It considers mind in its bodily or physical aspect, and disregards it in its purely mental or spiritual sense.” Id. at 1089-90.
Damages for mental pain resulting from willful acts: Interestingly, “negligent” infliction of emotional distress can also arise in cases involving intentional or willful acts. Oklahoma courts have declared mental suffering can be claimed as damages in certain kinds of situations because the mental pain naturally flows from the wrong. Those situations include misrepresentation, fraud, malicious prosecution and insurance bad faith. In such cases, a plaintiff need not show physical injury.
In Dean v. Chapman, 1976 OK 153, 556 P.2d 257, 260, the court recognized there can be a “a willful wrong of such a character that mental suffering is recognized as an ordinary, natural and proximate result of such a wrong.” (However, in Dean, a medical examiner’s method of conducting an autopsy did not constitute a cause of action.)
False imprisonment: In an action for false imprisonment, it is unnecessary to prove physical injury in addition to mental suffering. Halliburton-Abbott Co. v. Hodge, 1935 OK 354, 44 P.2d 122, 123 (syllabus).
Fraud and misrepresentation: In Mashunkashey v. Mashunkashey, 1941 OK 113, 113 P.2d 190, a divorce case based on deceit in entering into a bigamous marriage, mental pain was an element of damages (although the court also noted it could have also been the basis of an independent cause of action because of the willful, fraudulent conduct involved). In Worsham v. Nix, 2004 OK CIV APP 2, 83 P.3d 879, 888, the plaintiff and her husband retained a lawyer to help stop harassment of the husband at work. Although the lawyer recognized the stress caused by the harassment, he “… did little to nothing” and misrepresented to the couple that he had filed a lawsuit. Id. “Under these facts, a jury could also reasonably infer that emotional distress was a natural and probable consequence of [the lawyer’s] action. Therefore, Plaintiff’s fraud cause of action may support recovery of emotional distress damages.” Id. The damages would be for the mental pain and suffering naturally flowing from the misrepresentation. However, the negligence/legal-malpractice part of the claim required physical injury to support mental pain: “Moreover, Plaintiff has raised the factual question of whether [the lawyer] committed legal negligence. If Plaintiff can further show that she or [her husband] suffered foreseeable emotional distress as a result of that negligence, and that the emotional distress caused physical injury, damages may be recoverable for the emotional distress.” Id. The plaintiff did not plead intentional infliction of emotional distress and the court did not find intentional infliction a viable theory under those facts because the lawyer’s actions did not exceed “… the bounds of acceptable action that an average member of the community would exclaim, ‘outrageous’.” Id.
Insurance bad-faith: Damages for emotional distress naturally flow from an insurer’s breach of the duty of good faith and fair dealing, and in those cases the courts do not require physical manifestations of the mental pain. In Christian v. American Home Assurance Co., 1977 OK 141, 577 P.2d 899, 904, the court declared: “We approve and adopt the rule that an insurer has an implied duty to deal fairly and act in good faith with its insured and that the violation of this duty gives rise to an action in tort for which consequential and, in a proper case, punitive, damages may be sought.” The court adopted the reasoning of Fletcher v. Western National Life Ins. Co., 10 Cal.App.3d 376, 89 Cal.Rptr. 78 (1970) that an insured contracts to protect himself against risk, including the mental distress following such losses. Id. at 902. As quoted in Christian at 902, Fletcher held: “’… [I]ndependent of the tort of intentional infliction of emotional distress, such conduct on the part of a disability insurer constitutes a tortious interference with a protected property interest of its insured for which damages may be recovered to compensate for all detriment proximately resulting therefrom, including economic loss as well as emotional distress resulting from the conduct or from the economic losses caused by the conduct, and, in a proper case, punitive damages.’” The court in Timmons v. Royal Globe Insurance Co., 1982 OK 97, 653 P.2d 907, 914-915, emphasized mental suffering in bad-faith does not require either severe mental distress or outrageous conduct to be actionable; bad-faith is tortious, but evil intent to mislead or deceive is not required.
“Mental distress is recognized as an ordinary and natural result of a failure of insurance.” Coble v. Bowers, 1990 OK CIV APP 109, 809 P.2d 69, 73. In Coble, when the plaintiff purchased a vehicle, he applied and paid the premium for credit disability insurance. The insurance company denied the application because the buyer had not also applied for credit life insurance. Id. at 70. The court agreed with the plaintiff that “… emotional distress caused by a willful, actionable tort is recoverable, even absent physical injury, if it is the natural and probable consequence of the tortious act. … Emotional distress as a consequence of an intentional tort is distinguishable from distress resulting from breach of contract or negligence, which requires a showing of physical injury.” Id. at 73. See also, Harrell v. Old American Ins. Co., 1991 OK CIV APP 91, 829 P.2d 75, 80: “… [The] compensatory damages award of $40,000 for Old American’s bad faith treatment of Harrell was founded on sufficient evidence that Harrell was subjected to mental anguish, distress, embarrassment, and harassment by creditors; and that she experienced anxiety and worry as a consequence of Old American’s willful failure to deal with her fairly.”
Furthermore, the cause of action for emotional distress survives the death of the insured. Clements v. ITT Hartford, 1999 OK CIV APP 6, 973 P.2d 902, 905. Emotional distress damages can only be claimed by individual insureds, not principals of corporations. Jadco Management Corp. v. Federal Ins. Co., 2000 OK CIV APP 68, 9 P.3d 92, 94.
Compare, breach of contract: In contrast, mental damages do not flow naturally from an ordinary breach-of-contract claim. A plaintiff who does not suffer a physical injury from breach of a contract cannot recover for mental anguish, humiliation and embarrassment. In Seidenbach’s, Inc. v. Williams, 1961 OK 77, 361 P.2d 185, 187, the plaintiff could not recover for emotional damages when the defendant failed to deliver her wedding gown and veil in time for her wedding. In Butner, 37 P. at 1090, the plaintiff could not recover against Western Union for breach of contract involving delay in delivering a telegram announcing his adult daughter’s death.
Malicious prosecution: Malicious prosecution cases require both lack of probable cause and malice. Reeves v. Agee, 1989 OK 25, 769 P.2d 745, 752. Injuries to reputation and mental or emotional distress necessarily result, so specific proof is not required. Drakos v. Jones, 1941 OK 249, 118 P.2d 388; Kirkpatrick v. Hollingsworth, 1952 OK 345, 249 P.2d 434 (syllabus); Browning v. Ray, 1968 OK 52, 440 P.2d 721, 724. Only specific damages such as loss of profits or earnings from a business or profession must be proved. Id.
Retaliatory discharge: A person who is fired from his or her job naturally will suffer mental anguish, and such damages are recoverable in an action for retaliatory discharge for filing a workers’ compensation claim. Williams v. ABS Enterprises, Inc., 1987 OK CIV APP 6, 734 P.2d 854, 856.
What’s next? We have seen mental pain is simply an element of damages recoverable in negligence cases. It is also simply an element of damages in malicious prosecution, false imprisonment, fraud, misrepresentation, and bad faith actions; the willful aspect of such types of cases does not convert a mental-suffering claim into the separate tort of intentional infliction of emotional distress. Our next issue will discuss the difficulties of proving “intentional infliction” causes of action. — Lynn B. Mares