Facts – Plaintiff alleged various incidents during her employment where she was humiliated, criticized and insulted. She filed suit against her employer claiming, in part, that there had been intentional infliction of emotional distress. The Court held that, in order to establish such a claim, the Plaintiff must prove: (1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress. The conduct at issue must go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community. Mere insults, indignities, threats or petty oppressions do not rise to the level of extreme and outrageous conduct. Whether the conduct at issue may reasonably be considered so extreme and outrageous as to allow recovery is a matter that should be initially decided by the Trial Court. However, where reasonable minds may differ, the issue is for the Jury to determine.

The Court of Appeals found that the behavior of which Plaintiff complained did not rise to the level of being utterly intolerable in a civilized community. Further, it held that a person is not liable for causing someone emotional distress when the distress results from the exercise of legal rights. In this case, the role of Plaintiff’s supervisor was to review and/or criticize performance. Even supervisors who exercise poor judgment, persist in rudely criticizing an employee, and cause the employee embarrassment or humiliation are not exhibiting a level of conduct that is intolerable to society. (Fragoules v Atkinson, et al, Michigan Court of Appeals Unpublished Decision dated March 13, 2003, Docket No. 232996).

Recommendation – When investigating a claim of intentional infliction of emotional distress, each alleged incident should be thoroughly analyzed in light of all surrounding circumstances.

Facts – Plaintiff alleged that he was injured in the course of an Independent Medical Examination (IME) conducted by the doctor in conjunction with a civil action. He asserted that, before the exam, he told the doctor that he had recently had surgery to repair a tear in the superior labrum of his right shoulder and that the surgeon had placed restrictions on the movement of Plaintiff’s right arm and shoulder. Plaintiff asserted that, during the course of the IME exam, Defendant nonetheless forcefully rotated the right arm and shoulder 90 degrees, detaching the labrum from the right shoulder and requiring another surgery to repair the damage.

The original Complaint alleged professional negligence which was eventually dismissed because there was no physician-patient relationship upon which such a claim could be premised. Plaintiff’s counsel then attempted to amend the Complaint to allege ordinary negligence, a request which was denied by the Trial Court on the grounds of futility.

In a case of first impression, the Michigan Court of Appeals held that an IME physician does owe a duty to the person being examined to exercise professional skill so as not to cause harm to that person by negligently performing the exam. Accordingly, a physician can be liable for ordinary negligence if, because of the physician’s negligence, the IME results in physical harm to the examinee. (Dyer v Trachtman, Michigan Court of Appeals Published Decision dated March 13, 2003, Docket No. 235114).

Recommendation – Mere allegations of injury are not sufficient to establish this type of claim. The Court recognized that a determination of negligence might require testimony regarding what a reasonable physician would have done during the IME. Fortunately, this type of situation rarely arises. When scheduling an IME, the physician should be provided with as much information as possible so that the doctor is fully aware of the patient’s condition before the evaluation begins.

Facts – Defendant provided a plastic booster seat to Plaintiff’s parents for the child’s use. Plaintiff fell and sustained injury. An action was commenced, alleging that Defendant owed a duty to provide proper seating. Defendant argued that it did not owe a duty to protect Plaintiff from the open and obvious risk of being placed in a booster seat by her parents, who then left her unattended. The Trial Court agreed and dismissed the litigation.

On Appeal, Plaintiff argues that Defendant created a dangerous condition on the premises. The Court disagreed, noting that Defendant’s duty to exercise reasonable care to protect an invitee does not extend to open and obvious conditions, or to conditions from which an unreasonable risk cannot be anticipated. Plaintiff did not claim that Defendant provided a defective booster seat for use. Rather, it was the use of the seat under the unique circumstances presented by Plaintiff’s particular physical abilities that allegedly posed the dangerous condition. The Court refused to impose upon Defendant a duty to protect the child from her parents’ choices regarding her own safety and welfare. (Cortez v OCB Restaurant Company, Michigan Court of Appeals Unpublished Decision dated March 11, 2003, Docket No. 236209).

Recommendation – This case is yet another application of the "open and obvious" doctrine. In essence, the Court found that there was nothing which would have prohibited the child’s parents from requesting a different type of seating (for example, a high chair). The Court refused to impose liability for "bad parenting".

Facts – Plaintiff was involved in an automobile accident. Thereafter, he began to experience pain in his right shoulder. The Trial Court eventually dismissed Plaintiff’s Complaint, finding that his injuries did not meet the serious impairment threshold.

All x-rays were normal. The MRI was normal apart from a Type II or III acromion and bone spurs. Plaintiff’s doctor opined that the Type II or III acromion was a normal variation of the shoulder blade. The bone spurs were abnormal but were not caused by the accident. The only thing attributed to the accident was the shoulder pain which the doctor suspected was caused by some sort of impingement due to swelling and inflammation of the rotator cuff. The impingement was not shown by any objective test and the doctor admitted that swelling and inflammation could not be objectively diagnosed by objective testing. The treating physician believed that the impingement was objectively manifested because repeated physical tests elicited the same response (that being pain upon movement). The Court of Appeals held that the Plaintiff’s injuries (not his pain) must be medically substantiated through objective manifestation. (Dudley v Blazeff, Michigan Court of Appeals Unpublished Decision dated March 20, 2003, Docket No. 239078).

Recommendation – Although Plaintiff exhibited limited range of motion during some exams, the evidence presented did not indicate whether range of motion tests were active or passive. Since it is Plaintiff’s responsibility to present his claim in the best manner possible, the Court assumed that the limited flexion was not objectively manifested. An impairment can be objectively manifested by x-ray, other objective tests such as MRI or EMG, or even a passive range of motion test. This case is another example of the Court’s conservative view on objective manifestation of injury.

Facts – Plaintiff accidentally struck and killed her two-year-old daughter while operating a vehicle owned by Plaintiff’s grandmother. The grandmother’s vehicle was insured by Allstate. Plaintiff owned a vehicle insured by Farmers. Farmers issued a residual liability insurance policy to Plaintiff, covering her own vehicle (which was not involved in the accident) and Defendant’s policy excluded coverage for bodily injury to an "insured person". The policy defined "insured person" as the policyholder or a member of the policyholder’s family. Thus, it was undisputed the Plaintiff’s daughter was an insured person within the meaning of the policy.

Defendant refused to defend or indemnify Plaintiff in proceedings brought by the Personal Representative of the child’s estate. A Complaint was filed for Declaratory Judgment and the Trial Court granted Summary Disposition finding that the "insured person" exclusion was against public policy [relying upon State Farm Mutual Automobile Insurance Company v Sivey, 404 Mich 51 (1978)].

Defendant contended that an exclusion from residual liability coverage contained in a policy issued to the driver (who did not own the vehicle involved in the accident) is valid and must be enforced [relying upon Citizens Insurance Company v Federated Mutual Insurance Company, 448 Mich 225 (1995) and Husted v Auto Owners Insurance Company, 459 Mich 500 (1999)]

The Court of Appeals held that Plaintiff in this case was not required to have residual liability coverage for her operation of a vehicle that she did not own or register. Although Plaintiff had residual liability coverage issued by her insurer, the exclusion unambiguously stated that there was no coverage for bodily injury to an insured person. An insurer is not required under the No-Fault Act to provide blanket portable coverage to the insured when the insured drives another person’s insured vehicle. Geller v Farmers Insurance Exchange, 253 Mich App 664 (2002).

Recommendation – The Court also rejected Plaintiff’s claim that she had a reasonable expectation that she would be covered by her insurance policy when she drove any vehicle. When analyzing a particular claim, keep in mind that, where an exclusion is clear and unambiguous, the rule of "reasonable expectations" has no applicability.

Should you have any questions or comments regarding this or any of our newsletters, please feel free to contact us by voice 989.799.3033, e-mail jtc@saginaw-law.com or write to Collison & Collison, P.C., 5811 Colony Drive, North, P.O. Box 6010, Saginaw, MI 48608-6010.

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