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April 14, 1980


The opinion of the court was delivered by: Aspen, District Judge:


Plaintiff Robert Strader has brought this diversity action seeking compensatory and punitive damages under a variety of contract and fraud theories of recovery. Plaintiff was hired by defendant Union Hall on November 13, 1972; slightly more than a year later, on November 22, 1973, plaintiff suffered a severe stroke. Plaintiff was able to resume work on a part-time basis on February 7, 1974, and to continue in this capacity through May 24, 1974. During this period defendant Travelers Insurance Companies ("Travelers"), pursuant to a group insurance policy issued to Union Hall, paid for the plaintiff's out-patient physical therapy. On May 24, 1974, defendant Union Hall terminated its employment of plaintiff Strader. Defendant Travelers continued to make payments for plaintiff's out-patient therapy through June, 1974, but made no further payments thereafter.

As a result, plaintiff filed this action against defendants Union Hall and Bagus on October 21, 1975, alleging that the employment contract had been induced fraudulently; that these defendants had breached an oral agreement with plaintiff; and that plaintiff had relied to his detriment on the defendants' representations. On November 15, 1976, plaintiff added a count against defendants Union Hall and Bagus alleging their failure to notify Travelers that his discharge was because of his medical disability caused Travelers to discontinue payments for his therapy. At the same time, plaintiff amended his complaint to include a count against Travelers alleging that it "negligently or willfully or recklessly terminated Plaintiff's medical payments when it had knowledge that Plaintiff was totally disabled while insured by [its] Group Insurance Policy."*fn1

The case now is before the Court on defendant Travelers' motion to dismiss or for summary judgment. Specifically, Travelers seeks to dismiss the action insofar as it is based on theories of breach of the duty of good faith and fair dealing, and intentional infliction of emotional harm.*fn2 In addition, Travelers has moved for summary judgment on plaintiff's claim for punitive and consequential damages.


In Ledingham v. Blue Cross Plan for Hospital Care, 29 Ill. App.3d 339, 330 N.E.2d 540 (5th Dist. 1975), an Illinois court held for the first time that the relationship between a health insurance insurer and a policyholder gives rise to an implied duty of good faith and fair dealing, the breach of which creates both contract and tort liability. Thus, the court noted that although punitive damages generally may not be awarded in an action for breach of contract, Hayes v. Moynihan, 52 Ill. 423, 425, 426 (1869); Ash v. Barrett, 1 Ill.App.3d 414, 274 N.E.2d 149, 152 (1st Dist. 1971), such damages may be awarded where the breach of this implied duty constitutes tortious interference with a protected property interest of the insured. 330 N.E.2d at 548-549.

The Illinois courts, however, are by no means unanimous in their recognition of this cause of action. In fact, Ledingham is the only Illinois court to recognize expressly the tort of breach of the duty of good faith and fair dealing. Courts in two other appellate districts in Illinois have rejected the reasoning in Ledingham. Tobolt v. Allstate Insurance Co., 75 Ill.App.3d 57, 30 Ill.Dec. 824, 833, 393 N.E.2d 1171, 1180 (1st Dist. 1979); Debolt v. Mutual of Omaha, 56 Ill.App.3d 111, 13 Ill.Dec. 656, 660-661, 371 N.E.2d 373, 377-378 (3d Dist. 1978).*fn3 The rationale for Tobolt and Debolt is that the courts should not create by judicial fiat remedies in addition to those already provided legislatively. Both courts observed that section 155 of the Illinois Insurance Code, Ill.Rev.Stat. 1975, Ch. 73, para. 767, confers upon an insured the right to recover attorney's fees if the court concludes that the insurer's refusal to pay is "vexatious and unreasonable."*fn4 These courts considered it significant that Ledingham failed to mention this statutory remedy, and that the states which have recognized a right of action for breach of the duty of good faith and fair dealing appear to have no such similar statutory provision. Tobolt, 30 Ill.Dec. at 833, 393 N.E.2d at 1180. Accordingly, the courts concluded that it would be inappropriate for the judiciary to supplement this statutory remedial scheme. Tobolt, 30 Ill.Dec. at 833, 393 N.E.2d at 1180; Debolt, 13 Ill.Dec. at 661, 371 N.E.2d at 378.

It is the task of a federal court, when faced with an unsettled question of state law, to exercise independent judgment and render a decision which it believes that highest court of the state would issue if it were faced with the same question. Eckenrode v. Life of America Insurance Co., 470 F.2d 1, 3 (7th Cir. 1972); 1A, Pt 2 Moore's Federal Practice ¶ 0.309[2] at 3119.*fn5 The Court believes that Tobolt and Debolt represent a more sound interpretation of Illinois law than does Ledingham. The primary benefit of the tort theory developed in Ledingham is that it enables insured parties to collect punitive damages in what essentially are breach of contract actions, where such damages usually are unavailable.*fn6 Yet, it is clear that the remedy provided by section 155 is in the nature of a punitive damage remedy. The opinion in Ledingham failed even to mention this provision, much less explain why an additional remedy for insured parties was necessary. For these reasons, the Court does not believe that the Illinois Supreme Court would recognize an independent tort action for breach of the duty of good faith and fair dealing. Thus, the Court will grant defendant Travelers' motion to dismiss the action for failure to state a claim for relief insofar as it is based upon a theory of a duty of good faith and fair dealing. Fed.R.Civ.P. 12(b)(6).


The intentional infliction of emotional harm is a well established tort under Illinois law. Knierim v. Izzo, 22 Ill.2d 73, 174 N.E.2d 157, 165 (1961). Thus, the only question before the Court is whether, assuming the truth of the plaintiff's allegations, plaintiff has stated a claim for intentional infliction of emotional harm. Under Illinois law, a plaintiff seeking recovery under this theory must allege (1) that the conduct by defendant was extreme and outrageous; (2) that he has suffered severe emotional harm; (3) that the conduct by defendant was intentional, or so reckless that the defendant knew severe emotional distress was substantially certain to result; and (4) actual and proximate causation of emotional distress by defendant's conduct. Public Finance Corp. v. Davis, 66 Ill.2d 85, 4 Ill.Dec. 652, 654, 360 N.E.2d 765, 767 (1976); Debolt, 13 Ill.Dec. at 658, 371 N.E.2d at 375. Moreover, the extreme and outrageous conduct may arise "from an abuse of a position or a relation with another which gives the actor actual or apparent authority over the other or power to affect his interests. Public Finance Corp., 4 Ill.Dec. at 654, 360 N.E.2d at 767.

Although the allegations in plaintiff's complaint are sketchy, he sets forth in his brief directed to the motion the following scenario of Travelers' conduct after his association with Union Hall came to an end. In June, 1974, plaintiff's wife contacted a claims agent to discuss continuation of payments to her husband. The agent told Mrs. Strader that her husband was ineligible for payments since he no longer worked at Union Hall. When Mrs. Strader offered to provide evidence that her husband had been totally disabled at the time he left the employ of Union Hall, the agent told her not to submit the information. A friend of the Strader family who sought to intercede on plaintiff's behalf fared little better. In response to a request explaining the reason for the termination of benefits, Travelers stated that any time an employee was terminated — for whatever reason — policy benefits were terminated as well.

The plaintiff alleges that this information was false, and that since then plaintiff has learned that benefits may continue after termination of employment if the employee is totally disabled at the time of termination. Strader claims that Travelers failed to conduct an investigation to determine whether in fact he was disabled at the time of his discharge; indeed, he alleges that Travelers' handling of his case was so negligent and reckless that his file actually was lost. As a result of the termination of payments by Travelers, plaintiff allegedly was unable to obtain physical therapy for more than a year and one half. During this period his mental — as well as physical — condition allegedly deteriorated seriously. Because he had lost hope for the future, his mental state became one diagnosed as moderately severe depression.

These allegations set forth the elements necessary to sustain this cause of action. This is not a case such as Tobolt, 30 Ill.Dec. at 829, 393 N.E.2d at 1176, wherein the plaintiff simply failed to allege facts which could constitute outrageous conduct; or Ledingham, 330 N.E.2d at 549, wherein the defendant insurer's refusal to pay was made in good faith on the basis of an investigation. Here, the defendant insurer allegedly failed to investigate the merits of plaintiff's claim, and misrepresented the nature of his insurance coverage. This is precisely the type of abusive behavior by an entity with the power to affect the interests of another that gives rise to a finding of extreme and outrageous conduct. See Eckenrode, 470 F.2d at 3; Restatement, Second, Torts ยง 46, Comment e at 74. The emotional distress allegedly suffered by plaintiff is more than mere fright or worry. Plaintiff herein allegedly was a very sick man, dependent upon the insurance benefits for the continuation of his rehabilitation regimen. The unwarranted termination of those benefits no doubt would be severely distressing to a reasonable man in the position of the plaintiff. Moreover, as alleged, the conduct of Travelers clearly states a claim for reckless conduct. Since this conduct arose in the context of an insurance policy where the "very risks insured against presuppose that . . . the beneficiary might be in difficult circumstances," Eckenrode, 470 F.2d at 5, Travelers knew or should have known that severe distress was ...

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