Coble v. Bowers , 62 O.B.A.J. 1332 ( 1990 )

MEANS, Judge.

Plaintiff Norman J. Coble appeals the summary judgment granted in favor of defendants Melinda Bowers, First State Bank, and First Life Assurance Co. Defendant Security Life Assurance Co. was dismissed without prejudice prior to judgment and is not a party to this appeal. Having reviewed the record and applicable law, we affirm in part, reverse in part and remand.

In 1985, Bank loaned Coble $15,141.16 to purchase a truck. In connection with the loan, Coble decided to purchase credit disability insurance and filled out an application to First Life. The premium was financed as part of the loan.

First Life refused to issue credit disability insurance unless credit life was also purchased. Bank assistant vice president Bowers was unaware of this when Coble took out his loan. When she learned that Coble’s application had been denied, she instructed First Life to write a credit life policy for Coble and to credit Bank with the difference in premium. This difference was then applied to reduce Coble’s loan balance. Bowers claims that she mailed Coble a copy of the policy as written, but Coble denies ever receiving any notice that his disability application had been rejected.

In 1986, Coble presented First Life with a disability claim, which First Life denied. Coble then filed this action. His petition alleged that:

3. Defendant, BOWERS, represented to plaintiff that in the event of his disability, the loan that he was securing would be paid.

4. The material representations of defendant, BOWERS, were false and were a failure of the defendants to deal fairly and in good faith with plaintiff.

5. Unfortunately, Mr. Coble acted upon this misrepresentation and purchased the disability insurance with his loan.

6. In 1986, NORMAN COBLE, suffered disability.

7. Defendant, when presented with a claim upon this disability portion of the loan, denied payment.

8. Defendant, BOWERS and the defendant entities fraudulently misrepresented and deceived NORMAN J. CO-BLE.

9. Defendants failed to act fairly and in good faith with NORMAN J. COBLE.

Coble prayed for $1,520,000 in damages, representing the unpaid balance of the loan, damages for emotional distress, and punitive damages.

It was undisputed that Bank had never sought to enforce further payment of the loan. It eventually released its security interest in the truck.

In 1987, Coble filed for bankruptcy under Chapter 7 of the U.S. Bankruptcy Code. Pursuant to 31 O.S.Supp.1987 § 1(A)(21), the bankruptcy court ordered that Coble’s interest “in a claim for personal bodily injury ... for a net amount not in excess of Fifty Thousand Dollars ($50,000.00), but not including any claim for exemplary or punitive damages,” was exempted from the bankruptcy estate. In December 1987, Co-ble’s debt to the bank was discharged.

In January 1988, Bowers and Bank moved for summary judgment, listing thirty-five undisputed material facts. First Life filed a separate motion, claiming fourteen undisputed material facts.

Coble responded to each by claiming as the only undisputed fact “[t]he amount of Plaintiff’s damages.” He argued that the inferences and conclusions to be drawn from the undisputed facts presented questions of fact precluding summary judgment. He moved for partial summary judgment, asking that “the uncontroverted facts be treated as resolved.”

The trial court denied Plaintiff’s motion for summary judgment, granted Defendants’ motions, and ordered that Plaintiff take nothing by his suit. From this judgment, Plaintiff appeals.

On appeal from a summary judgment, this court will examine the pleadings and evidentiary materials presented. Ruling on a motion for summary judgment must be made on the record actually presented to the court, not one which is potentially possible. Weeks v. Wedgewood Village, Inc., 554 P.2d 780, 784 (Okla.1976). The court must view all inferences and conclusions to be drawn from the facts presented in the light most favorable to the party opposing the motion. Northrip v. Montgomery Ward & Co., 529 P.2d 489, 496 (Okla.1974). Summary judgment is inappropriate if reasonable men would reach differing conclusions on the facts presented. Runyon v. Reid, 510 P.2d 943, 946 (Okla.1973).

Coble’s first allegation of error on appeal is that the trial court erred in finding that his discharge in bankruptcy terminated his cause of action. This argument misconstrues Defendants’ argument and applicable bankruptcy law. When Coble filed for bankruptcy protection, his pending claim against Defendants was no longer under his personal control, but rather became an asset of the bankruptcy estate. 11 U.S.C. § 541(a)(1). Upon motion and order by the court, his interest in $50,000 in “personal injury” damages was exempted pursuant to 31 O.S.Supp.1987 § 1(A)(21). The rest of his claim — for the loan balance and any punitive damages — remained in the bankruptcy estate. As such, the Chapter 7 trustee has the duty to collect and reduce to money the estate’s property, and the right to pursue prosecution of the action. 11 U.S.C. §§ 323(b), 704(1); Bankruptcy Rule 6009. Until and unless the trustee abandons the claim, the debtor has no standing to prosecute on his own behalf, as he is no longer the real party in interest. 11 U.S.C. § 554; see Miller v. Shallowford Community Hosp., Inc., 767 F.2d 1556 (11th Cir.1985); Hester v. Farmers Home Admin., 49 B.R. 593 (E.D.Mo.1985).

In addition, Coble’s debt to Bank has now been discharged, rendering it unenforceable. 11 U.S.C. § 524(a)(2); see Palmer v. Crouch, 298 P.2d 1041, 1042 (Okla.1956). Bank has also released its security interest in the collateral. Coble is therefore estopped to deny that he is no longer indebted to or subject to any claim by the Bank as a result of this transaction, thus eliminating the amount owed to the Bank as an element of his damages. .

Coble next argues that the trial court erred in finding no cause of action for negligence. The trial court did not specifically make such a finding in its order; we find that, even construing Coble’s petition in its most favorable light, no negligence theory of recovery was presented to the trial court. Title 12 O.S.Supp.1990 § 2008(A), under “General Rules of Pleading,” requires that the pleader present “[a] short and plain statement of the claim showing that [he] is entitled to relief.” The Committee Comment to § 2008 observes that, although the old rule requiring recitation of “ ‘facts constituting a cause of action’ ” has been simplified, a pleading must give “ ‘fair notice of what the plaintiff’s claim is and the grounds upon which it rests.’ ”

Coble’s petition, liberally construed, did not notify Defendants that he was proceeding under a negligence theory. Further, his motion for summary judgment and responses to Defendants’ motions did not address the theory, and there is nothing else in the record to indicate that it was ever presented at the trial court level. Claimant is therefore barred from asserting the theory for our review. See Ross v. Thompson, 174 Okla. 183, 185, 50 P.2d 385, 387 (1935).

Coble also asserts that the trial court erred in rejecting his cause of action for bad faith breach of contract. We find this contention without merit as against Bank and Bowers. Oklahoma law does not extend the tort of bad faith breach to the commercial lending setting. Rodgers v. Tecumseh Bank, 756 P.2d 1223, 1226-27 (Okla.1988). Coble admits that, under the teaching of Timmons v. Royal Globe Insurance Co., 653 P.2d 907 (Okla.1982), the implied duty of good faith and fair dealing does not extend to defendant Bowers, a stranger to the insurance contract. That portion of the judgment relating to bad faith breach of contract against Bank and Bowers is therefore affirmed.

However, viewing the inferences and conclusions drawn from the facts in the light most favorable to Coble, we find that he has stated a viable action for breach of the duty of good faith and fair dealing against First Life. The facts before us raise an inference that Bank acted as agent for the insurance company in the solicitation of credit insurance. It was undisputed that Bank was Coble’s only contact for the insurance purchase. Bank’s employees solicited the policy, obtained Co-ble’s application, and collected the premium by agreeing to finance it as part of the principal loan. Although First Life rejected Coble’s disability application, its agent then purported to accept a counter-offer and make a premium adjustment without Coble’s authority or without notifying him of the proposed change. This action not only disregarded Coble's desires in the matter but deprived him of the opportunity to take timely and useful corrective measures. Such a course of negotiation raises the inference of unfair dealing between insurer and insured, precluding summary judgment.

Coble next argues that the trial court erred in denying his cause of action for fraud. We agree with this contention. Where a party with intent to induce another to enter into a contract makes a positive assertion, which is material, in a manner not warranted by his information, or where he is not shown to have reasonable grounds for believing it true where the assertion so made is not true, even though believed by the party making it, he may be guilty of actual fraud. 15 O.S.1981 § 58; see Farrar v. Chitwood, 282 P.2d 729, 731 (Okla.1955). Here, Coble’s testimony indicates that, with the intent to induce Coble to request her to procure disability insurance, which would benefit both First Life and Bank, Bowers represented to Coble that she could in fact procure disability insurance for him absent credit life. Whether this was warranted by her information and whether Coble relied upon the statement in the face of the statements printed on the insurance application is for the jury to decide.

Coble makes the related argument that the evidence presented on summary judgment does not preclude an award of damages for his emotional distress. We agree that emotional distress caused by a willful, actionable tort is recoverable, even absent physical injury, if it is the natural and probable consequence of the tortious act. Mashunkashey v. Mashunkashey, 189 Okla. 60, 61-62, 113 P.2d 190, 191 (1941); see Timmons, 653 P.2d at 916. Mental distress is recognized as an ordinary and natural result of a failure of insurance. See Christian v. American Home Assurance Co., 577 P.2d 899, 902 (Okla.1977) (“[T]he insured does not contract ‘... to obtain a commercial advantage but to protect [himself] against the risks of accidental losses, including the mental distress which might follow from the losses _’” (quoting Fletcher v. Western Nat’l Life Ins. Co., 10 Cal.App.3d 376, 89 Cal.Rptr. 78 (1970))). Emotional distress as a consequence of an intentional tort is distinguishable from distress resulting from breach of contract or negligence, which requires a showing of physical injury. See Ellington v. Coca-Cola Bottling Co., 717 P.2d 109 (Okla.1986) (negligence); Seidenbach’s, Inc. v. Williams, 361 P.2d 185 (Okla.1961) (breach of contract).

We therefore find that the trial court was correct in granting summary judgment on Coble’s claims for bad faith breach of contract against Bank and Bowers. However, we find the court erred in granting summary judgment on Coble’s claim for bad faith against First Life, and for emotional damages arising from actual fraud. The portion of the judgment on those claims is reversed and the case is remanded for trial. The remainder of the judgment is affirmed.

REIF, P.J., concurs. BRIGHTMIRE, C.J., concurs in part and dissents in part.