
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,  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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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 &                                 ___ _____    ____            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-
