GEORGIA (Legal Newsline) - A man who checked into a hospital and considered suicide after reading a callous remark on his daughter’s death certificate can sue the records company for intentional infliction of emotional distress, a Georgia appeals court ruled, in a decision that sharply divided the judges on whether the case presented a valid claim.
Luis Mayorga sued Vital Record Solutions after his 15-year-old daughter committed suicide and the crematorium e-mailed his husband a draft death certificate with a handwritten question that seemingly mocked their same-sex marriage. “I AM SO CONFUSED LOL - THE STEP DAD AND THE FATHER HAVE THE SAME LAST NAME?,” someone at VRS wrote on the certificate.
Mayorga said he was so devastated by reading the comment that he had to be admitted to hospital, where he incurred more than $11,000 in charges.
A trial judge dismissed the lawsuit, ruling Mayorga’s allegations weren’t “extreme and outrageous” enough to go to trial. The judge also dismissed Mayorga’s negligence claim under the “pecuniary loss exception,” under which Georgia plaintiffs can’t recover emotional distress damages for ordinary negligence unless they have suffered physical injury as well.
Mayorga appealed and the Georgia Court of Appeals reinstated the emotional distress claim and upheld the dismissal of the negligence claim in a July 1 decision that left the 15-judge panel divided on the legal standard for emotional distress claims as well as whether mental health expenses should be recoverable in negligence lawsuits.
Judge E. Trenton Brown, writing for the majority, ruled that Mayorga had presented enough evidence to proceed with his claim VRS was liable for disturbing his emotions by suggesting his daughter might have killed herself over embarrassment at her father’s same-sex marriage.
“The statement `I AM SO CONFUSED LOL’ was intended to, and did, make fun of Plaintiff Mayorga’s sexual orientation and make light of Kaitlyn’s suicide, which also impugned the home environment Mayorga provided to his daughter,” Mayorga argued, according to the decision. "It was not a joke — and certainly not funny — to Mayorga to make fun of the circumstances surrounding Kaitlyn’s death or her home life.”
The majority cited other Georgia cases in which emotional distress claims were allowed, including one where the defendant solicited the plaintiff to engage in illegal activity and another where a hospital called a mother with known emotional problems to tell her she should come and retrieve her stillborn infant from a freezer.
“We cannot say that it is not outrageous, as a matter of law, for a professional working in the field of issuing death certificates to feign confusion and laugh about why a dead teenager’s gay fathers have the same last name, intentionally place these comments on any version of a death certificate, and intentionally share these comments, which could be understood to make fun of the dead teenager’s home life, with her grieving father,” the majority concluded.
Concurring, Judge Andrew Pinson said the bar for an intentional infliction of emotional distress claim is high, but “in our notice-pleading system, a claim lives to see discovery if the plaintiff could `possibly introduce evidence within the framework of the complaint’ that satisfies the elements of his claim.”
Judge Sara Doyle, in dissent, said extreme and outrageous conduct “must go beyond all reasonable bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized community,” and the evidence Mayorga presented didn’t meet the test. VRS sent the email to the crematorium, not Mayorga or his husband, the judge wrote, and there was no evidence anyone at VRS intended him to read the note.
Judge Stephen Dillard also dissented, saying that while the comment on the draft death certificate was “unprofessional and tacky,” and “morally indefensible,” it wasn’t outrageous enough to meet the test under Georgia law.
“The words as written and judged under an objective standard—as required by Georgia law —simply do not rise to the requisite level of extreme and outrageous conduct required to sustain a claim for intentional infliction of emotional distress,” he wrote.
Judge Christopher McFadden also dissented, saying the emotional distress claim should have failed as a matter of law. Like several other judges, she said the appeals court should revisit its prior decisions denying the recovery of mental health expenses, however.