MSC Reaffirms Distinction Between Independent Emotional Distress Claims, Tag-Along Emotional Distress Damages

We're not in the business of measuring trends. Still, we couldn't help but notice the sheer volume of negligent and intentional infliction of emotional distress claims filed in all varieties of cases over the past several years, which got us thinking: Is there confusion over the interplay between stand-alone emotional distress claims, and "parasitic" or "tag-along" emotional distress damages associated with traditional tort claims? Well, consider yourself enlightened. You needn't bring an independent claim in every case, and after the Court's recent decision in Lorang v. Fortis Ins. Co., 2008 MT 252, 345 Mont. 12, ___ P.3d ___ (2008 WL 2764588), we can't help but wonder why anyone would be so inclined.

In Lorang, Fortis argued that Plaintiffs' UTPA claims should have been dismissed for failure to demonstrate "severe" emotional distress under Sacco v. High Country Independent Press, Inc. (1995), 271 Mont. 209, 896 P.2d 411. Lorang, ¶ 184. The argument was promptly dispatched by a unanimous panel. The heightened "serious or severe emotional distress" standard articulated in Sacco was specifically tailored against fraudulent independent claims; it does not, however, cabin compensatory damages -- including emotional distress damages -- flowing from ordinary tort claims:

Fortis' argument fails to recognize the distinction between emotional distress as an element of damages resulting from a UTPA violation, and emotional distress which serves as the basis for an independent cause of action in tort. Sacco did not create a standard for establishing emotional distress as an element of damages resulting from a UTPA violation or torts generally. Rather, by its express terms, Sacco creates a standard of proof solely for independent, stand-alone claims of negligent or intentional infliction of emotional distress.

Id. at ¶ 190. (emphasis added). The Court did not substantively discuss tag-along damages or compare the standards; rather, at footnote 29, it referenced the Montana Pattern Instructions, "which provide one set of instructions for Sacco claims, based on the 'serious or severe' standard, and a separate instruction for cases where emotional distress is alleged as an element of damages in claims other than negligent or intentional infliction of emotional distress." Id. & n.29 (citing MPI 2d 25.02, 15.01-03). The Court concluded that the measure of actual damages was for the jury; presumably, however, tag-along claims are not immune from challenge under Rule 56. The issue remains one for future cases.

Fortis confirms that negligent and intentional infliction of emotional distress claims should be sparingly plead and even less frequently tried. Simultaneously pursuing Sacco "serious or severe" claims and tag-along emotional distress damages invites juror confusion over disparate standards for the "same" issue, risks application of the far stricter standard to all emotional distress claims, and potentially trivializes legitimate emotional distress damages that might not qualify under Sacco. For the majority of cases, the higher evidentiary standard makes little, if any, sense.