Diana Curtis v. State Farm Fire and Casualty , 617 F. App'x 517 ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0494n.06
No. 14-2194
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DIANA CURTIS, ) FILED
Jul 10, 2015
) DEBORAH S. HUNT, Clerk
Plaintiff- Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) EASTERN DISTRICT OF MICHIGAN
STATE FARM FIRE AND CASUALTY CO., )
) OPINION
Defendant -Appellee. )
BOGGS and BATCHELDER, Circuit Judges, and HUCK, District Judge.*
BOGGS, Circuit Judge. Plaintiff-Appellant Diana Curtis, a Michigan resident, contracted
with State Farm to insure her home. In 2011, Curtis claimed a loss due to theft during a home
break-in. In 2012, State Farm refused to pay. In 2013, Curtis sued and then, after State Farm
removed her suit to federal court, voluntarily dismissed the suit. In 2014, Curtis sued again. But
she sued too long after State Farm’s initial refusal. Because the statute of limitations had run on
her claim, the district court granted State Farm’s motion to dismiss. Curtis timely appealed. We
affirm the judgment of the district court for reasons that follow.
On September 9, 2011, Curtis filed a claim with State Farm “for a break-in and theft that
occurred at her residence that very day. . . . In a letter dated October 26, 2012, State Farm denied
Curtis’s claim [and] stated that, in compliance with the home owner’s insurance contract and
Michigan law, any legal action taken against State Farm must be filed within one year of the
issuance of denial . . . .” (emphasis added). Eleven months later, on September 26, 2013, Curtis
*
The Honorable Paul C. Huck, Senior District Judge for the Southern District of Florida, sitting by
designation.
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sued in state court. State Farm removed that first case to federal court and, on December 13,
2013, Curtis voluntarily dismissed the case. The contractual-limitations term, like the statute of
limitations, was tolled during the seventy-eight days that Curtis’s first suit was pending. So the
one-year statute of limitations expired on January 11, 2014, one year and seventy-eight days after
the date on which State Farm denied Curtis’s claim. Four days later, on January 15, 2014, Curtis
filed the present action, again in state court. By the time Curtis filed this second suit, one year
and eighty-two days had elapsed since State Farm had denied her claim. State Farm removed
again to federal court and, on the ground that Curtis’s statutory and contractual period limiting
her right to sue had run, moved to dismiss. The district court granted State Farm’s motion to
dismiss. Curtis timely appealed.
Curtis argues that the district court should have computed the one-year statutory and
contractual period of limitations according to Federal Rule of Civil Procedure 6, which provides
for an extra 3 days for certain actions, see Fed. R. Civ. P. 6, rather than according Michigan
rules, which do not, see Mich. Comp. Laws § 500.2833(1)(q).
Long-standing precedent intends “to insure that, in all cases where a federal court is
exercising jurisdiction solely because of . . . diversity . . . , the outcome of the litigation in the
federal court should be substantially the same . . . as it would be if tried in a State court.”
Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99, 109 (1945) (discussing Erie R. Co. v. Tompkins,
304 U.S. 64 (1938)). To this end, federal courts sitting in diversity apply the statues of
limitations of the jurisdictions in which they sit. See, e.g., Wallace v. Kato, 549 U.S. 384, 394
(observing that the Supreme Court has “generally referred to state law for tolling rules, just as
[it] ha[s] for the length of statutes of limitations”); cf. West v. Conrail, 481 U.S. 35, 39 n.4
(1987) (observing that “state law not only provides the appropriate period of limitations but also
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determines” when “service must be effected”). To allow a cause of action “longer life in the
federal court than it would have had in the state court” would be “adding something to the cause
of action.” Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 533-34 (1949).
Curtis cites Arvia v. Black, 722 F. Supp. 644 (D. Colo. 1989), for the proposition that
“Rule 6 applies to the computation of a state statute of limitations.” Appellant Br. 22. This
statement mischaracterizes Arvia’s holding. In that case, the district court adopted “by analogy
the method of computation . . . prescribe[d]” by Rule 6 to the construction of a Colorado state
statute of limitations. Arvia, 722 F. Supp. at 647. In the course of doing so, the court observed
that the Colorado Rule of Civil Procedure “is virtually identical” to the Federal Rule “and the
result under state law presumably would be the same.” Ibid. So Arvia does not guide a court
presented with the question of whether to compute a state statute of limitations according to
Federal Rule 6 when that computation definitely differs—indeed, is advanced because it
differs—from the state procedure.
Next, Curtis alleges that State Farm’s denial letter failed to trigger the statute of
limitations because State Farm addressed it to her lawyer. Curtis alleges that she had retained
the lawyer “for the limited purpose of appearing with the Plaintiff and her grandchildren in the
defendant’s attorney’s office to be examined under oath in a deposition like setting.” Appellant
Br. 8. Curtis alleges that she did not “instruct[t], reques[t, ] or authoriz[e] State Farm to mail,
send[,] or communicate anything else related to the claim to or through” her lawyer. Ibid. But
once Curtis informed State Farm that she had retained counsel, the Michigan Rules of
Professional Conduct prohibited State Farm’s lawyer from communicating directly with Curtis.
Mich. R. Prof’l Conduct 4.2 (“In representing a client, a lawyer shall not communicate about the
subject of the representation with a party whom the lawyer knows to be represented in the matter
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by another lawyer . . . .”). Indeed, violating this “no-contact rule can result in disqualification of
the offending lawyer.” 2 Geoffrey C. Hazard, Jr. et al., The Law of Lawyering § 41.02 at 41-4
(4th ed. 2015).
Third, in Michigan, an insured’s notice to an insurance company of loss tolls the statute
of limitations until the insurance company denies the claim. Tom Thomas Org. v. Reliance Ins.
Co., 242 N.W.2d 396 (Mich. 1976). Nearly two decades ago, Michigan’s intermediate court of
appeals held that an insurance company’s denial occurs when it is mailed by the insurer, not
when it is received by the insured. Saad v. Citizens Ins. Co. of Amer., 576 N.W.2d 438 (Mich.
Ct. App. 1998). Although this holding neither would bind the Michigan Supreme Court nor
prevent the Michigan Legislature from creating an opposite rule, it guides this court as to the
status of Michigan law, at least until the presentation of evidence to the contrary. If a state’s
highest court has not addressed the substantive state-law question at issue, a federal court
deciding a diversity case “must anticipate how the relevant state’s highest court would rule and
may rely on the state’s intermediate appellate court decisions . . . in making this determination.”
Kepley v. Lanz, 715 F.3d 969, 972 (6th Cir. 2013) (internal quotation marks omitted). “Where
the Michigan Supreme Court has not addressed an issue, we may look to opinions issued by the
Michigan appellate courts and should follow their reasoning unless we are convinced by other
persuasive data that the highest court of the state would decide otherwise.” Tooling, Mfg. and
Technologies Ass’n v. Hartford Fire Ins. Co., 693 F.3d 665, 670 (6th Cir. 2012) (internal
quotation marks omitted). Curtis’s suggestions, see, e.g., Appellant Br. 14 (“Plaintiff vigorously
disagrees with the holding in Saad . . . .”), do not persuade us that the Michigan Supreme Court
would decide otherwise. So the district court’s reliance on Saad was correct.
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Finally, the district court correctly concluded that Curtis failed to state a claim for
intentional infliction of emotional distress (IIED). On appeal, Curtis fails to indicate “extreme
and outrageous” behavior. A defendant is liable for IIED only
where the conduct has been so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a
civilized community. Generally, the case is one in which the
recitation of the facts to an average member of the community
would arouse his resentment against the actor, and lead him to
exclaim, ‘Outrageous!’
Restatement (2d) of Torts § 46, cmt. g. The examples of State Farm’s conduct that Curtis alleges
to be outrageous include:
(1) “[P]alpable cynicism about [Curtis’s] claim”;
(2) Requirements that Curtis provide bank statements;
(3) Denial of claim based on a lack of form that State Farm previously had
acknowledged receiving; and
(4) Requirement that Curtis and her grandchildren “submit to questioning by
[State Farm’s] attorney in a deposition like setting.”
Appellant Br. 24. Curtis suggests that, taken together, these actions constituted a “witch hunt”
which, in turn, constituted outrageous conduct. But no reasonable person would consider an
insurance company’s conduct outrageous if it simply doubted the veracity of a claim, required
and even lost forms, and erected other procedural hurdles.
In conclusion, Curtis’s contract, like Michigan law, required Curtis to bring her claim
within one year. Although the limitation period was tolled both between her claim and State
Farm’s denial and during the pendency of her first suit, Michigan law clearly provides that those
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tolling periods were insufficiently long to save the tardiness of her present suit. We AFFIRM the
district court’s dismissal of this case.
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