Count V: Intentional Infliction of Emotional Distress

Porter complains that Conseco’s investigators inflicted emotional distress by (1) falsely
accusing him of fraud, (2) falsely claiming that other witnesses had implicated him in a scheme
to defraud the company, (3) interrupting him during their questioning, and (4) bullying and
intimidating him and using an aggressive tone. To prove intentional infliction of emotional
distress (“ITED”) under Indiana law,’ Porter must show that defendants (1) intentionally or
recklessly (2) engaged in extreme and outrageous behavior, which caused him severe emotional
distress. Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991). Extreme or outrageous conduct is
conduct “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,” Conwell v. Beatty, 667
N.E.2d 768, 777 (Ind. Ct. App. 1996), but does not extend to “mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities,” Gable v. Curtis, 673 N.E.2d 805, 810 (Ind.
Ct. App. 1996). This court has previously noted that “whether conduct is sufficiently extreme
and outrageous to support liability must be determined by all of the particular facts of the case at
bar” and that “in most instances . . . comparisons to the facts of other cases will be of minimal

assistance.” Dawson v. New York Life Ins. Co., 932 F. Supp. 1509, 1546 n. 41 (N.D. Ill. 1996).

Bankers.

> Illinois applies the “most significant relationship” test for determining what law to
apply in tort cases. In practice, “the law of the place of injury controls unless Illinois has a more
significant relationship with the occurrence and with the parties.” Fredrick v. Simmons Airlines,
Inc., 144 F.3d 500, 503-04 (7th Cir. 1998) (quoting Esser v. McIntyre, 661 N.E.2d 1138, 1141
(ll. 1996). Accordingly, Indiana law applies to Porter’s IED and negligent infliction of
emotional distress claims because they are based solely upon the interviews conducted by
Conseco employees in Carmel, Indiana. See Dr. Franklin Perkins School v. Freeman, 741 F.2d
1503, 1520-21 (7th Cir. 1984).



fact exists as to whether at least a few do not. Therefore, summary judgment on this basis is also
inappropriate.

Finally, Defendants argue that they are entitled to summary judgment because Porter has
failed to prove slander per se or alternatively prove special damages. To recover for slander,
Porter must prove special damages, unless Aldridge’s statements constitute slander per se. The
five categories for slander per se are: “‘(1) Words imputing the guilt or commission or some
criminal offense involving moral turpitude and infamous punishment; (2) Words imputing the
existence of some contagious disease; (3) Words imputing unfitness in an officer who holds an
office of profit or emolument, either in respect of morals or inability to discharge the duties
thereof; (4) Words imputing a want of integrity or capacity, whether mental or pecuniary, in the
conduct of a profession, trade or business;’ [and (5)] words imputing to a female a want of
chastity.” Speed, 787 So.2d at 632. In order for a statement to be slander per se as imputing to
the plaintiff the commission of a crime involving moral turpitude and infamous punishment, the
charge of criminal conduct must be significant, either “(a) punishable by imprisonment in a state
or federal institution, or (b) regarded by public opinion as involving moral turpitude.” Jd. at 633
(calling plaintiff a “thief” for stealing two pieces of paper was not actionable per se); see also
Boler v. Mosby, 352 So.2d 1320, 1323 (Miss. 1977) (falsely accusing customer of shoplifting
meat from the defendant’s store was actionable per se); Valley Dry Goods Co. v. Buford, 75 So.
252, 254 (Miss. 1917) (falsely accusing employee of stealing $100 from employer’s cash register,
in conspiracy with someone else was actionable per se).

Porter asserts that being called a “crook” or a “criminal” or saying that he was “caught

with his hands in the cookie jar” constitutes slander per se by imputing to him involvement in the



fails because it is undisputed that Conseco did not breach any duty to protect Porter from
reasonably foreseeable harm. See Kottlowski v. Bridgestone/Firestone, Inc., 670 N.E.2d 78, 85
(Ind. Ct. App. 1998). Conseco security investigators were justified in interviewing Porter about
insurance fraud in his region, and there is no evidence that they had reason to believe that doing
so would create an unreasonable risk of distress to Porter. Therefore, summary judgment on this

claim is granted.°

Count VIL: Defamation

Porter claims that Defendants defamed him on multiple occasions. Defendants argue that
they are entitled to summary judgment on this claim for two reasons: (1) certain allegedly
slanderous statements are inadmissible as hearsay, and (2) the remaining allegedly slanderous
statements, all made by Porter’s replacement Dean Aldridge,” fail to meet the test for slander
under Mississippi law. Because I find that genuine issues of material fact exist as to whether
these latter statements constitute slander, it is unnecessary, for purposes of this summary

judgment motion, to consider whether the former statements are inadmissible as hearsay.

6 Once again, because I grant summary judgment on this claim as a matter of law, it is

unnecessary to address Defendants’ argument that this claim only lies against Conseco, the entity
that employed the interviewers who Porter claims inflicted emotional distress by their conduct.

7 These remaining statements are the following: (1) Aldridge telling other Bankers
managers at meeting in Memphis, Tennessee in 2001 and Dallas, Texas in December 2000 that
Porter was “caught with his hand in the cookie jar”; (2) Aldridge telling Doc Lovett that
“Conseco would not have done what they did had Ed Porter not been a criminal”; and (3)
Aldridge telling Bankers managers Mickey Brown, Randall Ayers, and Doc Lovett (all of whom
were in Louisiana at the time) that they should not associate with Ed Porter and that they should
not associate with criminals.



However, the Indiana Court of Appeals has recently addressed an IIED claim with similar facts to
the one at hand. Dietz v. Finlay Fine Jewelry Corp., et al., 754 N.E.2d 958, 970 (Ind. Ct. App.
2001), held that an employer’s hour-long interrogation of an employee suspected of theft, during
which the interviewer falsely accused the plaintiff of substance abuse, shoplifting, and
dishonesty, and was gruff and intimidating, was not extreme and outrageous as a matter of law.
This case bears enough factual resemblance to the present one for me to conclude that Plaintiff's

IED fails as a matter of law and grant summary judgment.’

Count VI: Negligent Infliction of Emotion Distress

To recover for negligent infliction of emotional distress under Indiana law, Porter must
show that Conseco (1) had a duty to conform its conduct to the requisite standard of care, (2)
breached its duty, and (3) proximately caused Porter emotional distress. Webb v. Jarvis, 575
N.E.2d 992, 995 (Ind. 1991). In addition, Porter must show that he suffered a physical impact as
a result of Conseco’s alleged negligence and that the impact caused him serious emotional
trauma. Alexander v. Scheid, 726 N.E.2d 272, 283 (Ind. 2000). Here, although a genuine issue

of material fact may exist as to whether Porter suffered the required physical impact,* his claim

* Because I grant summary judgment, it is unnecessary to address Defendants’ argument

that this claims only lie against Conseco, the entity that employed the interviewers who Porter
claims inflicted emotional distress by their conduct.

5 See Scheid, 726 N.E.2d at 283-83 (patient's allegations that, as a result of physician's
negligence in failing to follow up on chest X-ray which revealed a nodule in patient's lung,
patient had suffered the destruction of healthy lung tissue by a cancerous tumor which was later
diagnosed, and that as result of her bleak prognosis she was suffering from emotional trauma and
was being treated with antidepressants, were sufficient to establish emotional trauma arising from
direct involvement of physician, and thus to support claim for negligent infliction of emotional
distress under modified impact rule).



qualified privilege applies to Defendants. This does not end the inquiry, however, as Porter is
then required to prove “actual malice” on behalf of Aldridge as to the statements in question.
Smith v. White, 799 So.2d 83, 86-87 (Miss. 2001). Here, there is a genuine issue as to whether
Aldridge made his statements in good faith. Evidence exists that Aldridge made statements
indicating he was unsure whether Porter was “guilty” or not, raising the question as to whether
Aldridge really believed Porter to be a “crook” or a “criminal” or that he had been caught “with
his hand in the cookie jar.” Defendants are thus not entitled to summary judgment on the basis of
a qualified privilege.

Defendants alternatively argue that Aldridge’s statements are intra-corporate
communications that have not been published to a third party. As a general rule, “an intra-
corporate communication among officers or agents of the same corporation, in connection with
their duties for the corporation, are a communication of the corporation and cannot be
considered as being a communication to a third party.” Brunet v. Fullmer, 777 So.2d 1240, 1242
(La. Ct. App. 2001) (emphasis added); see also Bernard v. Sumner Regional Health Systems,
Inc., No. M2000-01478-COA-RS-CV, 2002 WL 459006, at *4 (Tenn. Ct. App. Mar. 26, 2002).'°
Here, although the statements were among officers of Bankers, there is evidence that Aldridge
made some of the statements while socializing with sales subordinates over dinners and drinks
and arguably not within the scope of his duties for Bankers. Although many statements

attributed to Aldridge may qualify as intra-corporate communications, a genuine issue of material

‘© Although Defendants have not cited any Mississippi law for this proposition, Plaintiffs
have reciprocally cited no Mississippi law or law from any other state to refute the rule of law
generally enunciated in Brunet and Bernard. Therefore, I hold the “intra-corporate
communication” rule applicable.


‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge

Sitting Judge if Other
or Magistrate Judge James B. Zagel .

than Assigned Judge

CASE NUMBER 01 C 6183 DATE 10/25/2002
CASE PORTER vs. BANKERS LIFE, ET AL
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
a) Oo Filed motion of [ use listing in “Motion” box above.]
(2) im} Brief in support of motion due
(3) im) Answer brief to motion due. Reply to answer brief due
(4) QO Ruling/Hearing on set for at
(5) im Status hearing[held/continued to] [set for/re-set for] on _ Set for at
(6) im Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) Oo Trial[set for/re-set for] on at
(8) a (Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) OLocal Rule 41.1. CIFRCP41(a)(1) C1 FRCP41(a)(2).

ao) [Other docket entry] Motion (41-1) for summary judgment is granted/denied in part.

Summary judgment is entered in favor of defendant Bankers Life and against plaintiff Paul E.

Porter on Counts I, II, HI, 1V, VI. Summary judgment is entered in favor of defendant Conseco

Services and against plaintiff Paul E. Porter on all counts.
(1) @f (For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. number of notices

Document
Number

Notices mailed by judge’s staff.

Notified counsel by telephone. OCT 29 2002

te docketed

Y | Docketing to mail notices.

Mail AO 450 form,

ager Mpty nals
Copy to judge/magistrate judge
date mated notice
courtroom
Dw deputy’s
initials

OE Batertinie:recelved in

central Clerk's Office niling deputy initials

U



insurance fraud under investigation in his region. Defendants argue that Aldridge’s statements
refer not to particular conduct punishable by law, but instead to his “view that Porter was a poor
manager and should have (or did) know about the insurance fraud taking place in his region.” I
can think of many words one may use to describe a poor manager, but “crook” or “criminal” are
not among them. Furthermore, evidence exists that Aldridge discussed Conseco’s ongoing
investigation of insurance fraud and Porter’s possible involvement with some of the same
Bankers managers to whom he made the statements at issue, indicating that the statements he
made may have imputed that Porter was somehow involved. A genuine issue of material fact
therefore exists as to whether Aldridge’s statements imputed to Porter the commission of a crime
and/or a lack of business integrity, and thus constituted slander per se. Summary judgment on
this basis is also inappropriate.

For the foregoing reasons, summary judgment for Bankers on this claim is denied.
However, summary judgment for Conseco on this claim is granted because Porter has come
forward with no evidence that anyone employed by that company made a false statement about
him. Each of the statements that Conseco corporate security investigators told Donna Childers is
not slanderous as a matter of law because no statement is false.

Summary judgment for Bankers is GRANTED as to Counts J, I, IH, IV, V, VI, but
DENIED as to Count VII. Summary judgment for Conseco as to all Counts is GRANTED.

ENTER:

wn B Cond

Jameg B. Zagel y
United States Distrd dge

10

DATE: 25 Ock200L



To recover for defamation under Mississippi law,* Porter must prove (1) a false and
defamatory statement about him, (2) an unprivileged publication to a third party, (3) fault
amounting to at least negligence on the part of the publisher, and (4) either actionability of the
statement irrespective of special harm or the existence of special harm caused by the publication.
Speed v. Scott, 787 So.2d 626, 631 (Miss. 2001), citing Franklin v. Thompson, 722 So.2d 688,
692 (Miss. 1998). Defendants first argue that Aldridge’s comments about Porter to other
Bankers managers do not constitute publication to a third party because they were subject to a
conditional or qualified privilege. Under Mississippi law, “[a] communication made in good
faith and on a subject-matter in which the person making it has an interest, or in reference to
which he has a duty, is privileged if made to a person or persons having a corresponding interest
or duty, even though it contains matter which without this privilege would be slanderous,
provided the statement is made without malice and in good faith.” Louisiana Oil Corp. v. Renno,
157 So. 705, 708 (Miss. 1934) (emphasis added).” Here, Aldridge’s statements were made to

other Bankers managers who share a common interest with him in Bankers, and thus the

§ «(T]n multistate defamation cases, Illinois cases indicate that ‘the applicable law is that

of the victim’s domicile, period.”” Cook v. Winfrey, 141 F.3d 322, 329 (7th Cir. 1998) (quoting
Rice v. Nova Biomedical Corp., 38 F.3d 909, 916 (7th Cir. 1994)). Because Mississippi is
Porter’s domicile, Mississippi law applies.

° Defendants call attention to a potentially difficult choice of law question regarding
which state law should govern the existence of a qualified privilege. As in International
Administrators, Inc. v. Life Ins. Co. of North America, 753 F.2d 1373, 1376 (7th Cir. 1985), in
which the Seventh Circuit addressed an equally difficult choice of law question, it is immaterial
which state’s law is applied because the possible contenders do not significantly differ from one
another in their recognition or treatment of the doctrine of conditional privilege, and thus
application of one state’s law as opposed to another’s “would not change the outcome” of my
decision. Furthermore, this Court is applying Mississippi law to Plaintiff's overall slander claim
and I see no reason to change horses at this point, particularly in light of Plaintiff's apparent
acquiescence to the use of Mississippi law.


Counts IJ, III, and IV: Contract Claims

Porter makes three claims against Defendants on the basis of his employment contract:
breach of contract, wrongful discharge, and breach of implied covenant of good faith and fair
dealing. Porter first alleges that Defendants entered into a contractual relationship with him and
breached this contract by terminating his employment. I find that Porter was employed at will
under Illinois law,' and Defendants did not breach the contract by exercising this power to
terminate him. Regarding Porter’s wrongful discharge claim, a person employed at will may be
discharged “for any reason or no reason.” Zimmerman v. Buchheit of Sparta, Inc., 645 N.E.2d
877, 879 (Ill. 1994), Because Porter’s claim does not fall within the only exception for
retaliatory discharges, see Jacobson v. Knepper & Moga, P.C., 706 N.E.2d 491, 492 (Ill. 1998),
the claim fails as a matter of law. Finally, Porter alleges that Defendants breached their duty of
good faith and fair dealing “with regard to carrying out their employment contract with him.”
However, “[a]n employment-at-will relationship ‘gives the employer the right to terminate the
employment at any time. Therefore, it is incongruous to imply a covenant [the implied covenant
of good faith and fair dealing] which restricts that right.’”” LaScola v. US Sprint Communication,
946 F.2d 559, 565 (7th Cir. 1991) (quoting Harrison v. Sears Roebuck & Co., 546 N.E.2d 248,
256 (Ill. App. Ct. 1989)). Because he was employed at will, Porter cannot, as a matter of law,
recover for breach of the covenant of good faith and fair dealing. Therefore, I grant summary

judgment on all three contract-based claims.’

' Porter’s contract specifies that it will be governed by Illinois law. Accordingly,
Porter’s contract-based claims must be decided under Illinois law.

> Because I grant summary judgment, it is unnecessary to address Defendants’ argument
that no contract claims lie against Conseco because Porter’s employment contract was with

3


the security personnel were abusive, made false accusations and unwarranted insinuations,
repeatedly interrupted Porter, and were otherwise oppressive in their questioning of him. Upon
being terminated, Porter was replaced by Dean Aldridge. During the following months, Aldridge
told various managers and agents in Porter’s old region that Porter was a “crook,” a “criminal,”
and someone who had been “caught with his hand in the cookie jar.” Porter claims that
Defendants had no authority to terminate his employment contract with them, that they
intentionally or negligently inflicted emotional distress upon him during the course of an
interview by corporate security regarding an investigation into insurance fraud in his region, and
that they defamed him, Defendants have moved for summary judgment.

Summary judgment is appropriate if, after drawing all reasonable inferences in favor of
the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); Juarez v. Ameritech Mobile Communications,
Inc., 957 F.2d 317, 320 (7th Cir. 1992). The question is thus “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

Count I: Vicarious Liability
Defendants argue that this count does not state a claim upon which relief can be granted.

lagree and grant summary judgment on this claim.



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

PAUL E. PORTER,
Plaintiffs, POCKETED
¥ OCT 29 2002
BANKERS LIFE & CASUALTY CO.,
and CONSECO SERVICES,
LLC,

Defendants. No. 01-CV-6183
Judge James B. Zagel

BANKERS LIFE & CASUALTY CO.,
Counter-Plaintiff,
Vv.

PAUL E. PORTER

Counter-Defendants.

MEMORANDUM OPINION AND ORDER
Paul Porter, a former Field Vice President for Bankers Life & Casualty Company
(“Bankers”), is suing his former employer and Conseco Services, LLC (“Conseco”), an affiliate
of Bankers. Porter worked as Field Vice President for Bankers’ four-state southern region.
Upon becoming aware of possible insurance fraud in Porter’s region, Bankers and Conseco
conducted respective investigations. A few months after initiating its investigation, Bankers
terminated Porter. Before he left the company, however, security personnel employed by

Conseco interviewed him regarding any possible involvement in the fraud. During the interview,