Section 4.5 Conduct Deemed Not to Be Extreme and Outrageous

• Library: Tort Law 2016

D. (§4.5) Conduct Deemed Not to Be Extreme and Outrageous

Conversely, the conduct alleged in the following cases has been determined incapable of reaching the degree of "extreme and outrageous" required by Missouri courts. It has been repeatedly documented that few fact patterns support an IIED claim in Missouri. Kansas City Laser, Inc. v. MCI Telecomms. Corp., 252 F. App’x 100, 104 (8^th Cir. 2007); see also Dunham v. City of O’Fallon, Mo., 945 F. Supp. 1256 (E.D. Mo. 1996).

A fair volume of cases in the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq., area has prompted Missouri to afford certain leeway to collection agents and agencies "to exercise legitimate efforts to collect debts due to them." Leonard v. Pioneer Fin. Co., 568 S.W.2d 937, 941 (Mo. App. W.D. 1978). Businesses engaged in collections are given latitude to pursue reasonable debt collection methods despite causing inconvenience or embarrassment to the debtor. Id. at 941.

· Petty annoyances and indignities do not qualify. Thornburg v. Fed. Express Corp., 62 S.W.3d 421, 428 (Mo. App. W.D. 2001) (the accused "conduct must be more than simply malicious or intentional"); St. Anthony’s Med. Ctr. v. H.S.H., 974 S.W.2d 606, 611 (Mo. App. E.D. 1998) ("[The conduct] must be beyond mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities."); Viehweg v. Vic Tanny Int’l of Mo., Inc., 732 S.W.2d 212 (Mo. App. E.D. 1987).

· In May v. Greater Kansas City Dental Society, 863 S.W.2d 941 (Mo. App. W.D. 1993), the plaintiff was a Kansas City dentist and the subject of a 1989 IRS inquiry. The IRS mailed the inquiry to hundreds of Kansas City dentists and prompted the president of the Kansas City Dental Society, Dr. Nelson, to write an article in the monthly newsletter about Dr. May. Although May’s name was not used in the article, Nelson made implicit references to the plaintiff, calling the plaintiff "yo-yo," "wacko," "at odds with the federal government," and "axe murderer." Upon reading the article, the plaintiff’s wife claims she suffered emotional distress, which caused hemorrhaging and a miscarriage.

The court found that Dr. Nelson’s "article cannot be considered conduct so outrageous in character and so extreme in degree as to go beyond all bounds of decency," and denied the plaintiff’s IIED claim. May, 863 S.W.2d at 948.

· In Alexander v. Bank of America, No. 07-4039-CV-C-NKL, 2007 WL 3046637 (W.D. Mo. Oct. 17, 2007), Bank of America garnished a plaintiff’s bank account. But as soon as the defendants learned the bank account contained only exempt property, Bank of America acted to rectify the garnishment. Despite the allegations stating public humiliation and embarrassment, the facts do not show extreme or intolerable conduct and cannot support an IIED claim.

· In Young v. LVNV Funding, LLC, No. 4:12CV01180AGF, 2012 WL 5508407 (E.D. Mo. Nov. 14, 2012), the plaintiff disputed a tradeline appearing on his credit report relating to a credit card he used from 2005 until 2007. After two credit-reporting agencies verified that the tradeline was accurate, the plaintiff alleged that the defendant made phone calls demanding payment that were "intended to harass, belittle, confuse, mislead, [a]nd threaten" the plaintiff. Young, 2012 WL 5508407, at *1. But the court concluded that the defendant’s behavior was within the bounds of decency and not extreme and outrageous conduct.

· In Kuehner v. Denny Loan Corp., 518 S.W.2d 94 (Mo. App. E.D. 1974) (affirming judgment of no outrageous conduct), evidence was in dispute as to the number of telephone calls and tone of those calls occasioned by the failure to make timely loan payments. The plaintiff testified that she lost her job as a result, although there was contrary testimony that the job was seasonal.

· In Smith v. Standard Oil, Division of Amoco Oil Co., 567 S.W.2d 412, 415 (Mo. App. E.D. 1978) (reversing jury verdict for the plaintiff), there were:

- a series of businesslike but inoffensive letters from the defendant;

- three telephone calls from the defendant’s credit department;

- three admittedly nonabusive form letters from a collection agency; and

- three telephone calls from the agency.

Only one of the telephone calls was in any way abusive. The collection agent said, "Why in the...