Since joining the Merlin Law Group a few months ago, I have seen some blog posts concerning the emotional impact that the insurance claim process can have on policyholders. Spot-on posts, in my opinion, given several policyholders I have worked with are beyond frazzled by the claim process ringers they have been put through. Indeed, a few of my clients have had to consult with psychologists and/or psychiatrists as a result of the stress and depression they experienced during the claim process.

This said, I figured it was time to remind folks that contractual causes of action are not all that are available to policyholders. True, insurance policies are contracts and claim handling malfeasance is classified as extra-contractual in Florida. And, true, the burden of proof associated with an intentional infliction of emotional distress claim is arduous (namely the scienter of the distress causing actor and the extremeness of the distress causing behavior). But that does not mean Florida policyholders should refrain from pursuing tort causes of action when the facts so warrant. What, then, makes up an intentional infliction of emotional distress cause of action in Florida?

The Supreme Court of Florida has defined an intentional infliction of emotional distress cause of action, as:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.1

And Florida’s district courts of appeal have more specifically outlined the elements of this tort:2

  1. The wrongdoer’s conduct was intentional or reckless, that is, he intended his behavior when he knew or should have known that emotional distress would likely result;
  2. The conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community;
  3. The conduct caused emotional distress; and
  4. The emotional distress was severe.

Zealous advocacy includes exploring the possibility of and assessing the strength of all available causes of action. In so doing, let’s not forget about tort.

1 Berger, Arthur L., Florida Causes of Action (2006) (citing, inter alia, Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277 (Fla. 1985).
2 Id. (citing, inter alia, Dominquez v. Equitable Life Assurance Soc’y of the U.S., 438 So. 2d 58 (Fla. 3d DCA 1983)).