USCA1 Opinion

January 29, 1993

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 91-2306
FRANK THORPE,
Plaintiff, Appellant,
v.
MUTUAL OF OMAHA INSURANCE COMPANY,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Bailey Aldrich, Senior Circuit Judge]
____________________
____________________
Before
Cyr and Boudin Circuit Judges,
______________
and Hornby,* District Judge.
______________
____________________
Edward J. McCormick, III was on brief for appellant.
________________________
Edward S. Rooney, Jr. was on brief for appellee.
____________________

____________________
____________________
* of the District of Maine, sitting by designation.

BOUDIN,
Mutual

of Omaha

alleged
chs.

Circuit Judge.
______________

93A

Insurance Company

emotional distress
and 176D.

Thorpe appeals
in

favor

directing

of Thorpe

of disability

Thorpe sued

("Mutual of

Omaha") for

were

of Mass.
based on

of Omaha

judgment

for Mutual

on
of

Thorpe's

an insurance

from rulings below granting

policy.

summary judgment

the statutory
Omaha

Gen. L.
Mutual of

in connection with

benefits under

of Mutual

distress claim.

Frank

and violation

The claims

Omaha's surveillance
receipt

Appellant

on the

claims and
emotional

We affirm both rulings.

Thorpe is a former

police officer who sustained serious

injuries,

including

contusion

to

the

heart,

employment-related automobile accident in 1975.

Thorpe

retired from

the police

force and

monthly total disability benefits

in

an

As a result,

began collecting

under a policy with Mutual

of Omaha.

In order to verify Thorpe's continued eligibility,

Mutual of

Omaha representatives regularly

visited Thorpe at

his home and inquired into his daily activities and prospects
for rehabilitation.
Beginning in

1982, personal contact with

increasingly difficult;
was

not at home

on several occasions,

or did not

come to the

Thorpe became
Thorpe either

door.

The problem

reached a head in early 1983, when Mutual of Omaha was unable

to

contact

Suspecting

Thorpe
that

at

home

Thorpe might

despite
be

repeated

working

attempts.

during the

day,

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Mutual of Omaha began

On the

second day

former

wife

followed by

to

surveillance of Thorpe in

of surveillance, Thorpe
work when

another car.

he

noticed

Thorpe took

April 1983.

was driving

that

he was

evasive action

his
being
and

eventually ended up behind the tailing car, then being driven

by the insurance company's agent, Michael Boyd.

According to

Thorpe and his former wife, Thorpe pulled up alongside Boyd's

car,

at which

Thorpe's
Boyd.

point

car before

As Thorpe

Boyd tried
driving

to

off, an

was driving home, he

ram his

vehicle

allegation denied

into
by

experienced temporary

chest pains.
Undeterred, Mutual
Thorpe one

of Omaha resumed its surveillance of

month later,

Pinkerton agent.

Thorpe

this time employing

again realized

a professional

that he

followed and, as with Boyd, claimed that the

tried

to hit his vehicle.

to hit Thorpe's car.

that Thorpe was

was being

Pinkerton agent

The Pinkerton agent denied trying

The insurance company never established

working and,

to this day,

he continues

to

receive monthly disability payments.

On April

18, 1986,

Mutual of Omaha
case

being

grounds.

Thorpe brought this

in the Superior Court

then
Thorpe

removed

to

asserted

federal
claims

action against

of Massachusetts, the
court
for

on

intentional

negligent infliction of emotional distress and for

of Mass.

Gen. L. chs. 93A

and 176D.

-3-3-

After

diversity
and

violation

some discovery,

Mutual of Omaha
The

district

moved for summary

judge granted

statutory claims,
under

summary

ruling that the

chapter 93A

did not

judgement on all
judgment

counts.

only on

"demand letter"

sufficiently specify

the

required
the injury

suffered and damages claimed by Thorpe.

The remaining tort counts were tried before a jury and a
different judge in November
evidence,

Thorpe

1991.

voluntarily

At

the close of all

dismissed

his

claim

negligent infliction of emotional distress, leaving

intentional

infliction

Shortly after

the

notified

trial

the

deadlocked

five

claim to

jury

to

began

judge

be

Two

more

that

the
the

notes

for

only the

by the

deliberations,

in writing

one.

decided

the

jury.
foreman

jury

was

followed, one

describing the hold-out juror as possessing "deep ideological

beliefs that will not
other saying that
of

the

parties

be changed by any arguments,"

and the

the hold-out "developed a bias" toward one

"during

the

course

of

the

trial

and

deliberations . . . ."
At this

point, the

mistrial but, before doing

trial judge considered

declaring a

so, posed the following questions

to the jury over the objections of Thorpe's counsel:

1.

Did Mr. Boyd attempt to ram plaintiff's car?

2.

Did Mr. Doucher (the Pinkerton agent) .

attempt to ram plaintiff's car?

. .

The jury

promptly answered

both questions in

the negative.

Having obtained these findings, the court discharged the jury

-4-4-

and

directed "judgment

Omaha,

the rubric

judgments

n.o.v.

as a

that has
See
___

matter of

law" for

replaced directed

Fed. R.

Civ. P.

Mutual of

verdicts and

50.

This

appeal

upon Mass. Gen.

L. ch.

ensued.
Thorpe's statutory

claim rests

93A, prohibiting unfair or deceptive acts or practices in the

conduct

of trade or commerce.1

chapter

93A

"reasonably

requires

the

describing

As a

prerequisite to suit,

submission of

the

unfair

or

deceptive

practice relied upon and the injury suffered."

ch. 93A

9(3).

control

plaintiff.
704,

the

letter
act

or

Mass. Gen. L.

The twin reasons for the demand letter are,

first, to encourage negotiation

to

demand

amount

Slaney v.
______

of

and settlement and,

damages

recoverable

Westwood Auto, Inc., 366

____________________

322 N.E.2d 768, 779 (1975).

second,
by

the

Mass. 688,

If a reasonable settlement

offer is rejected

by the plaintiff, recovery will be limited

to the amount of the offer. Id.

__
The

district court

in

this case

found that

Thorpe's

demand letter was specific about neither the alleged physical

harm

sustained nor the

Thorpe's

lawyer, dated

damages requested.
February 3,

The letter from

1984, asserts

that the

____________________
1Thorpe also invoked chapter 176D prohibiting unfair and
deceptive insurance practices, but that statute provides no
private cause of action and is enforceable only by the
commissioner of insurance. See Dodd v. Commercial Union Ins.
___ ____
_____________________
Co., 373 Mass. 72, 365 N.E.2d 802 (1977) (chapter 93A
___
encompasses unfair and deceptive insurance practices).
-5-5-

insurance
extensive

company's

harassment" inflicted on

distress, as well as
and

"surveillance

mind, and

mental

identification of

technics

[sic]

Thorpe "severe emotional

physical injuries, great pain

anguish."

and

There was,

any physical injuries and,

of body

however,

no

when Mutual of

Omaha wrote
provide

back inviting Thorpe's attorney

evidence of

client," its

"any specific

letter went

to identify and

injury or

unanswered.

harm

Thorpe's

to your

letter also

did not contain any damage figure which might have given some
dimension to his claims.
We agree

with the

did not satisfy

said

that

district court that

the statute.

"[i]t is

define

the injury

manner

that

. .

suffered

provides

the

opportunity to review the

if the

requested

enables him

The

Thorpe's letter

Massachusetts courts have

essential that
and the

the complainant

relief

demanded in

prospective defendant

with

facts and the law involved

relief should

be granted

a
`an

to see

or denied'

and

to make

`a reasonable tender

of settlement.'"2

Given the failure to

specify at least the

physical injuries

claimed, Thorpe's

letter provided no adequate

basis for the

insurance company to appraise the value of the claim or frame

a settlement offer.
centers on the

Thorpe's second

ground for reversal

trial court's submission of

questions to the

____________________
2Spring v. Geriatric Authority of Holyoke, 394 Mass.
______
________________________________
274, 288, 475 N.E.2d 727, 736 (1985) (quoting Slaney, 366
______
Mass. at 704-05, 322 N.E.2d at 779).
-6-6-

jury on the
Federal

issue of

attempted "ramming"

Rule of Civil

require from

Procedure 49(a) permits

the jury "a

specific written finding

claims

that the

arguing

of Thorpe's

special verdict
upon each issue

procedure was

car.

the court to

in the form
of fact."

inappropriate in

of a
Thorpe

this case,

that the jury did not return a general verdict, that

Rule 49 does
deadlocked

not provide

for submission of

jury, and that one

questions to

of the jurors

was biased and

therefore incapable of answering the questions impartially.

The

first

two

contentions

Arguments not made to

foreclosed on

were

not

made

the district court in civil

below.
cases are

appeal unless their inclusion would "virtually

. . . insure appellant's success" and exclusion would

in

a "gross

miscarriage

Somerville, 735
__________
explicitly

F.2d 5,

permits

verdicts, compare
_______

of justice."
7

(1st Cir.

special
Fed.

verdicts

R. Civ.

Jones v.
_____

result
City of
________

1984).

Rule

in

of

lieu

P. 49(b)

49(a)
general

(providing for

general verdict with interrogatories), and while Rule 49 does

not
jury

specifically address
after a

this practice.

the submission

deadlock, neither

does it

of questions

to a

expressly preclude

Patently, there was no clear violation of the

Federal Rules or any miscarriage of justice.

Thorpe's third
preserved

for

argument,

appeal,

questions to the jury

is

properly made

that

it

was

at

trial

error

because one of the jurors

to

and

submit

was biased.

-7-7-

The short answer is that the jury foreman's statements do not

establish

or even

strongly

sense that would require

mistrial.

Compare, e.g., United States v.

_______ ___
_____________

jury members).
a

technical
or a

Heller, 785 F.2d

______

and religious slurs uttered by

For all that appears, the hold-out juror came

firm conviction

based on

What were

the

refused

to budge.

foreman

may be "personal values"

Thorpe

in the

removal of the hold-out juror

1524 (11th Cir. 1986) (racial

to

suggest bias

evidence at

trial and

"ideological beliefs"
to the hold-out.

to the
At most

might have been entitled to a voir dire inquiry; none

was sought; and

the situation certainly did not

require the

trial judge to order one sua sponte.

__________
Lastly, Thorpe challenges the

district court's entry of

judgment

for Mutual

of Omaha

on the

claim of

infliction of

emotional distress.

In

this

the

properly

count,

trial

consideration testimony
this

issue was resolved

Omaha.
elicited

Still, Thorpe

court

directing judgment on

on the subject of
by the jury

excluded

from

"car ramming," as

in favor of

contends that the

at trial was sufficient

intentional

Mutual of

remaining evidence

to submit to

the jury his

claim for intentional infliction of emotional distress.

Thorpe

first

points out

earlier denied Mutual of

that

different judge

had

Omaha's motion for summary judgment

on this claim, suggesting "reasonable minds could differ" and

the jury should therefore decide the matter.

Cf. Anderson v.
__ ________

-8-8-

Liberty Lobby, Inc., 477

__________________
of summary judgment
the same

claim.

812, 822-23

U.S. 242, 251-52 (1986).

does not preclude a directed

See, e.g.,
________

(1st Cir.

1985),

see Voutour v. Vitale

___ _______
______
cert. denied,
____________

A denial
verdict on
761 F.2d

474 U.S.

1100

(1986).
in

Evidence adduced at

degree, force,

motion

and

trial will almost always differ

quantity from

for summary judgment.

judgment

standing

alone

that

submitted on

The earlier denial of summary

in

no

way

impeaches

the

later

directed verdict.
Turning to the evidence
plaintiff
distress
actor

claiming
under

intended

at trial, we note first

intentional

Massachusetts
to inflict

should

have known

result

of his

that

conduct;

infliction
law must

emotional

emotional

establish
distress

emotional distress
that the

of

that the

or knew

was the

conduct was

that a

or

likely

"extreme and

outrageous," "was beyond all possible bounds of decency," and

was "utterly intolerable in
actions were
the

emotional

"severe"

the cause of the plaintiff's distress; and that

distress

sustained

by

the

plaintiff

was

and of a nature that no reasonable person "could be

expected to endure."
144-45,

a civilized community;" that the

355 N.E.2d

surveillance

did not

Agis v. Massachusetts,
____
_____________
315, 318-19
even

(1976).

arguably rise

"extreme and outrageous conduct,"

-9-9-

377 Mass. 140,

In our
to

view, the

the level

of

and the issue was properly

withdrawn from the jury.3

Once the claims of

attempted car

ramming are removed from

dispute, the behavior complained of

amounts to not much more

than an insurance company's efforts

to determine the
benefits

was

Investigations

activities of a
conditioned
of

this

on

sort

expected where disability

claimant whose receipt

are

his

total

commonplace

claims are involved,

of

disability.
and

to

be

particularly

where, as here, the claimant was from all outward appearances

often away from home during the day.

However distasteful the

notion of surveillance, Mutual of Omaha's conduct in relation

to

Thorpe

was

not

"extreme

or

outrageous"

or

"utterly

intolerable in a civilized society."

Affirmed.
________

____________________
to

3Although the issue is

decide, the judge is

one which a jury is well suited

still expected to apply the

traditional test--could a reasonable jury find the conduct to

violate the tort standard--in deciding whether to submit the
issue to the jury. See Boyle v. Wenk, 378 Mass. 592, 598 &
___ _____
____
n. 11, 392 N.E.2d 1053, 1057 & n. 11 (1979) (citing
Restatement (Second) of Torts
46, comment h (1965)); Agis,
_____________________________
____
372 Mass. at 145-46, 355 N.E.2d at 319 (same).
See also
________
Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012, 1021 (1st Cir.
_____
_____________________
1988).
-10-10-