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,  Circuit  Judge.   Appellant  Frank  Thorpe sued
                            

Mutual  of Omaha  Insurance Company  ("Mutual of  Omaha") for

alleged  emotional distress  and violation  of Mass.  Gen. L.

chs.  93A  and 176D.    The claims  were  based on  Mutual of

Omaha's surveillance  of Thorpe  in connection with  Thorpe's

receipt  of disability  benefits under  an insurance  policy.

Thorpe appeals  from rulings below granting  summary judgment

in  favor  of Mutual  of Omaha  on  the statutory  claims and

directing  judgment  for Mutual  of  Omaha  on the  emotional

distress claim.  We affirm both rulings. 

     Thorpe is a former  police officer who sustained serious

injuries,  including   a  contusion  to  the   heart,  in  an

employment-related automobile accident in 1975.  As a result,

Thorpe  retired from  the police  force and  began collecting

monthly total disability benefits  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  Thorpe became

increasingly difficult;  on several occasions,  Thorpe either

was  not at home  or did not  come to the  door.  The problem

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

to  contact   Thorpe  at  home   despite  repeated  attempts.

Suspecting  that  Thorpe might  be  working  during the  day,

                             -2-

Mutual of Omaha began  surveillance of Thorpe in  April 1983.

On the  second day  of surveillance, Thorpe  was driving  his

former  wife  to  work when  he  noticed  that  he was  being

followed by  another car.    Thorpe took  evasive action  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  point  Boyd tried  to  ram his  vehicle  into

Thorpe's  car before  driving  off, an  allegation denied  by

Boyd.  As Thorpe  was driving home, he  experienced temporary

chest pains. 

     Undeterred, Mutual  of Omaha resumed its surveillance of

Thorpe one  month later,  this time employing  a professional

Pinkerton agent.   Thorpe  again realized  that he  was being

followed and, as with Boyd, claimed that the  Pinkerton agent

tried  to hit his vehicle.  The Pinkerton agent denied trying

to hit Thorpe's car.  The insurance company never established

that Thorpe was  working and,  to this day,  he continues  to

receive monthly disability payments.

     On April  18, 1986,  Thorpe brought this  action against

Mutual of Omaha  in the Superior Court  of Massachusetts, the

case  being  then  removed  to  federal  court  on  diversity

grounds.     Thorpe  asserted   claims  for  intentional  and

negligent infliction of emotional distress and for  violation

of Mass.  Gen. L. chs. 93A  and 176D.  After  some discovery,

                             -3-

Mutual of Omaha  moved for summary  judgement on all  counts.

The  district  judge granted  summary  judgment  only on  the

statutory claims,  ruling that the  "demand letter"  required

under  chapter 93A  did not  sufficiently specify  the injury

suffered and damages claimed by Thorpe. 

     The remaining tort counts were tried before a jury and a

different judge in November  1991.  At  the close of all  the

evidence,   Thorpe  voluntarily   dismissed  his   claim  for

negligent infliction of emotional distress, leaving  only the

intentional  infliction  claim to  be  decided  by the  jury.

Shortly after  the  jury  began  deliberations,  the  foreman

notified  the  trial  judge  in writing  that  the  jury  was

deadlocked  five  to  one.    Two  more  notes  followed, one

describing the hold-out juror as possessing "deep ideological

beliefs that will not  be changed by any arguments,"  and the

other saying that  the hold-out "developed a bias" toward one

of  the  parties  "during  the   course  of  the  trial   and

deliberations . . . ."  

     At this  point, the  trial judge considered  declaring a

mistrial but, before doing  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-

and  directed "judgment  as a  matter of  law" for  Mutual of

Omaha,  the rubric  that has  replaced directed  verdicts and

judgments  n.o.v.   See  Fed. R.  Civ. P.  50.   This  appeal
                       

ensued.

     Thorpe's statutory  claim rests  upon Mass. Gen.  L. ch.

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

conduct  of trade or commerce.1   As a  prerequisite to suit,

chapter  93A  requires  the  submission of  a  demand  letter

"reasonably  describing  the  unfair  or  deceptive   act  or

practice relied upon and the injury suffered."  Mass. Gen. L.

ch. 93A    9(3).  The twin reasons for the demand letter are,

first, to encourage negotiation  and settlement and,  second,

to  control   the  amount  of  damages   recoverable  by  the

plaintiff.   Slaney v.  Westwood Auto,  Inc., 366  Mass. 688,
                                            

704,  322 N.E.2d 768, 779 (1975).  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  damages requested.   The letter from

Thorpe's  lawyer, dated  February 3,  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-

insurance   company's   "surveillance   technics  [sic]   and

extensive  harassment" inflicted on  Thorpe "severe emotional

distress, as well as  physical injuries, great pain   of body

and  mind, and  mental  anguish."    There was,  however,  no

identification of  any physical injuries and,  when Mutual of

Omaha wrote  back inviting Thorpe's attorney  to identify and

provide  evidence of  "any specific  injury or  harm  to your

client," its  letter went  unanswered.  Thorpe's  letter also

did not contain any damage figure which might have given some

dimension to his claims.

     We agree  with the  district court that  Thorpe's letter

did not satisfy  the statute.  The  Massachusetts courts have

said  that  "[i]t is  . .  .  essential that  the complainant

define  the injury  suffered  and the  relief  demanded in  a

manner  that  provides  the  prospective defendant  with  `an

opportunity to review the  facts and the law involved  to see

if the  requested  relief should  be granted  or denied'  and

enables him  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.      Thorpe's second  ground for reversal

centers on the  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-

jury on the  issue of  attempted "ramming"  of Thorpe's  car.

Federal  Rule of Civil  Procedure 49(a) permits  the court to

require from  the jury "a  special verdict  in the form  of a

specific written finding  upon each issue  of fact."   Thorpe

claims  that the  procedure was  inappropriate in  this case,

arguing  that the jury did not return a general verdict, that

Rule 49 does  not provide  for submission of  questions to  a

deadlocked  jury, and that one  of the jurors  was biased and

therefore incapable of answering the questions impartially.

     The  first   two  contentions  were   not  made   below.

Arguments not made to  the district court in civil  cases are

foreclosed on  appeal unless their inclusion would "virtually

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

in  a "gross  miscarriage  of justice."    Jones v.  City  of
                                                             

Somerville, 735  F.2d 5,  7  (1st Cir.  1984).    Rule  49(a)
          

explicitly  permits  special  verdicts  in  lieu  of  general

verdicts, compare  Fed.  R. Civ.  P. 49(b)  (providing for  a
                 

general verdict with interrogatories), and while Rule 49 does

not  specifically address  the submission  of questions  to a

jury  after a  deadlock, neither  does it  expressly preclude

this practice.  Patently, there was no clear violation of the

Federal Rules or any miscarriage of justice.

     Thorpe's third  argument,  properly made  at  trial  and

preserved  for  appeal,  is  that  it  was  error  to  submit

questions to the jury  because one of the jurors  was biased.

                             -7-

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

establish  or even  strongly  suggest bias  in the  technical

sense that would require  removal of the hold-out juror  or a

mistrial.   Compare, e.g., United States v.  Heller, 785 F.2d
                                                   

1524 (11th Cir. 1986) (racial  and religious slurs uttered by

jury members).  For all that appears, the hold-out juror came

to  a  firm conviction  based on  the  evidence at  trial and

refused  to budge.   What were  "ideological beliefs"  to the

foreman  may be "personal values"  to the hold-out.   At most

Thorpe  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  intentional

infliction of  emotional distress.  In  directing judgment on

this  count,   the   trial  court   properly  excluded   from

consideration testimony  on the subject of  "car ramming," as

this  issue was resolved  by the jury  in favor of  Mutual of

Omaha.   Still, Thorpe  contends that the  remaining evidence

elicited  at trial was sufficient  to submit to  the jury his

claim for intentional infliction of emotional distress.

     Thorpe  first  points out  that  a  different judge  had

earlier denied Mutual of  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-

Liberty Lobby, Inc., 477  U.S. 242, 251-52 (1986).   A denial
                  

of summary judgment  does not preclude a directed  verdict on

the same  claim.  See, e.g.,  see Voutour v. Vitale  761 F.2d
                                                   

812, 822-23  (1st Cir.  1985),  cert. denied,  474 U.S.  1100
                                            

(1986).  Evidence adduced at  trial will almost always differ

in  degree, force,  and  quantity from  that  submitted on  a

motion  for summary judgment.   The earlier denial of summary

judgment  standing  alone  in  no  way  impeaches  the  later

directed verdict.

     Turning to the evidence  at trial, we note first  that a

plaintiff  claiming  intentional   infliction  of   emotional

distress  under  Massachusetts  law must  establish  that the

actor  intended  to inflict  emotional  distress  or knew  or

should  have known  that  emotional distress  was the  likely

result  of his  conduct;  that the  conduct was  "extreme and

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

was "utterly intolerable in  a civilized community;" that the

actions were  the cause of the plaintiff's distress; and that

the  emotional   distress  sustained  by  the  plaintiff  was

"severe"  and of a nature that no reasonable person "could be

expected to endure."   Agis v. Massachusetts,  377 Mass. 140,
                                            

144-45,  355 N.E.2d  315, 318-19  (1976).   In our  view, the

surveillance  did not  even  arguably rise  to  the level  of

"extreme and outrageous conduct,"  and the issue was properly

                             -9-

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  activities of a  claimant whose receipt  of

benefits   was   conditioned   on   his   total   disability.

Investigations  of  this  sort  are  commonplace  and  to  be

expected where disability  claims are involved,  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.
             

                    

     3Although the issue is  one which a jury is  well suited
to  decide,  the  judge  is   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 &amp;
                                      
n.  11,  392  N.E.2d  1053,  1057  &amp;  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-
