Opinion
BCD-CV-2020-00020
03-06-2023
BRETT DEANE, HENRY LAVENDER, & JOLEEN MITCHELL, Plaintiffs, v. CENTRAL MAINE POWER COMPANY, Defendant.
James Belleau, Esq. Trafton Matzen Belleau & Frenette Gavin Mccarthy, Esq. Pierce Atwood Merrills Wharf
James Belleau, Esq. Trafton Matzen Belleau & Frenette
Gavin Mccarthy, Esq. Pierce Atwood Merrills Wharf
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
THOMAS R. MCKEON JUSTICE
BACKGROUND
Central Maine Power Company ("CMP") filed a Motion for Summary Judgment on Plaintiffs' remaining claim for intentional infliction of emotional distress. At this stage, Plaintiffs are Brett Deane ("Deane"), Joleen Mitchell ("Mitchell") and Henry Lavender ("Lavender") (collectively, the "Plaintiffs"). The court heard argument on CMP's Motion on January 30, 2023. For the reasons discussed below, the court GRANTS CMP's Motion.
STANDARD OF REVIEW
Summary judgment is appropriate when the parties' statements of material facts and the portions of the record referenced therein "disclose no genuine issues of material fact and reveal that one party is entitled to judgment as a matter of law." Currie v. Indus. Sec., Inc., 2007 ME 12, ¶ 11,915 A.2d 400 (citing M.R. Civ. P. 56(c)). "A material fact is one that can affect the outcome of the case, and there is a genuine issue when there is sufficient evidence for a fact finder to choose between competing versions of the fact." Lougee Conservancy v. CitiMortgage, Inc., 2012 ME 103, ¶ 11, 48 A.3d 774 (quotation omitted). Supporting and opposing affidavits must be made on personal knowledge and "set forth such facts as would be admissible in evidence." M.R. Civ. P. 56(e). The Court must view the record facts in the light most favorable to the non-moving party and must draw all reasonable inferences in favor of the same. Watt v. UniFirst Corp., 2009 ME 47, ¶ 21, 969 A.2d 897 (citations omitted). However, in order to properly controvert a fact, a nonmoving party must rely on more than "conclusory allegations, improbable inferences, and unsupported speculation." Dyer v. Dep't of Transp., 2008 ME 106, ¶ 14, 951 A.2d 821 (citations omitted). "The test is not whether some 'metaphysical' dispute exists, but whether the record taken as a whole could lead a rational trier of fact to find for the nonmoving party, if not 'there is no "genuine" issue for trial.'" Id. ¶ 14 n.3 (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).
When the defendant is the moving party, it must establish that there is no genuine dispute of fact and that the undisputed facts would entitle it to judgment as a matter of law. Diviney v. Univ, of Me. Sys., 2017 ME 56, ¶ 14,158 A.3d 5. To withstand a defendant's motion for summary judgment, the plaintiff must in turn establish a prima facie case for each element of their cause of action. Watt, 2009 ME 47, ¶ 21, 969 A.2d 897 (citations omitted). If they do not present sufficient evidence on the essential elements, then the defendant is entitled to a summary judgment. Id.
FACTS
For the limited purpose of deciding CMP's Motion for Summary Judgment, resolving all inferences in favor of the Plaintiffs, the record shows that Plaintiffs generated the following genuine issues of material fact.
I. CMP's Disconnection Procedures
During the period between November 15 and April 15 (the "Winter Period"), CMP used various notices and letters to communicate with customers about their unpaid bills: the Disconnect Notice, the Premises Visit ("PV") Package comprised of an Urgent Card and a Notice of Customer Rights, and the Letter 180 (collectively, the "Winter Notices"). (Def.'s S.M.F. ¶ 1.) Use of the Winter Notices is part of CMP's collections strategy. (Pls.' S.M.F. ¶¶ 3-4.) CMP is better off financially when its correspondence with customers motivates them to pay their bills. (Pls.' S.M.F. ¶ 15.) Hence, CMP designed the Winter Notices to stress urgency. (Pls.' S.M.F. ¶ 14.)
When a customer did not pay their bill on time, CMP would first send them the Disconnect Notice. (Def.'s S.M.F. ¶ 3.) The Disconnect Notice that CMP used during the Winter Periods of 2017-2018, 2018-2019, and 2019-2020: (1) contained basic information about the balance due, the amount to be paid to stop disconnection, and the disconnection date; (2) expressly told the customer that they could prevent disconnection by calling CMP to make a payment arrangement that would allow them to pay their balance in reasonable installments; and (3) provided an explanation of a variety of customer rights, such as how to obtain financial assistance, what to do in the case of a medical emergency, and how to contact the Consumer Assistance and Safety Department ("CASD") of the Maine Public Utilities Commission ("MPUC") in the event of any disputes with CMP. (Def.'s S.M.F. ¶ 4.)
When a customer did not respond to the Disconnect Notice, CMP's practice was to call the customer twice once before 5:00 p.m. and once afterwards. (Def.'s S.M.F. ¶ 5.) If CMP could not reach the customer by phone, then it would send a representative for a premises visit in an effort to make contact with the customer. (Def.'s S.M.F. ¶ 6.) If the representative could not contact the customer, then they would leave the PV Package containing the Urgent Card and Notice of Customer Rights. (Def.'s S.M.F. ¶ 7.) The Notice of Customer Rights: (1) advised customers to call CMP if they had trouble paying their electric bill; (2) provided information about financial assistance; (3) noted that CMP might request approval from the CASD to disconnect the customer's electricity if the customer did not contact CMP; and (4) explained that the customer had the right to call the CASD If he or she was unsatisfied with CMP's response. (Def.'s S.M.F. ¶ 9.) MPUC also required that CMP include in the Notice of Customer Rights a warning that the customer's service may be disconnected if they do not contact CMP within five business days after the notice's postmark date. 65-407 C.M.R. ch. 815, § 10(M)(2)(a), (b) (2019). Likewise, the Urgent Card: (1) advised the customer that their electric service might be disconnected; (2) informed them that it was very important for CMP to talk to them; (3) provided a phone number for the customer to call "to avoid disconnection"; (4) referenced the enclosed Notice of Customer Rights; and (5) provided information on how to make payment. (Def.'s S.M.F. ¶ 10.)
Finally, when the customer did not follow up with CMP within five business days after receiving the PV Package, CMP would mail them the Letter 180. (Def.'s S.M.F. ¶ 14.) The Letter 180: (1) stressed the possibility of disconnection due to lack of payment; (2) identified sources of possible financial assistance; and (3) explained that the CASD would establish a reasonable payment plan if the customer and CMP could not agree on one. (Def.'s S.M.F. ¶ 15)
At varying times throughout the period relevant to Plaintiffs' claims, CMP utilized Winter Notices that declared that it could disconnect the customer "without the approval of the [MPUC]" (the "Without Approval Language"). (Def.'s S.M.F. ¶¶ 13,18; Pls.' S.M.F. ¶ 5.) CMP's inclusion of the Without Approval Language in its Winter Notices was contrary to MPUC's rules. (Pls.' S.M.F. ¶¶ 5, 6.)
IL CMP's Noncompliance with MPUC Rules
CMP understood that people in Maine rely on electricity and the consequences of not having electricity during the winter, when severe weather conditions can pose a threat to health and safety that may be severe. (Pls.' S.M.F. ¶¶ 1, 2.) CMP also understood that it is the MPUC's policy that during the winter months residential customers of electric and gas transmission and distribution should not be disconnected because of their inability to pay the amount owed on their bill by a given due date. (Pls.' S.M.F. ¶ 1.) Thus, CMP must seek permission from the CASD in most circumstances to disconnect a customer during winter. (Pls.' S.M.F. ¶ 10.)
The applicable MPUC rule, and past iterations thereof in place when the events at issue in this case occurred, permit CMP's disconnection of a customer without CASD approval in situations limited to when CMP is unable to make contact with a customer and (1) it appears reasonably certain from an on-site inspection that the premises are vacant, or (2) CMP is not reasonably certain after the on-site inspection that the premises are vacant and the customer is not responsive to CMP's notices, in which case it may "cycle disconnect" them. E.g., 65-407 C.M.R. ch. 815, § 10(M)(2) (2019). Cycle disconnection entails disconnection during weekdays between 8:00 a.m. and 5:00 p.m. Id. § 10(M)(3).
MPUC affirmed the requirement that customer disconnection generally requires CASD approval with CMP during February of 2015 in the context of CMP's use of the Without Approval Language in its Notice of Customer Rights sent to customers whom CMP was unable to contact. (Def.'s S.M.F. ¶ 18; Pls.' S.M.F. ¶ 5.) After receiving MPUC's warning, during October of 2015 CMP sought a waiver that would permit its continued use of the Without Approval Language in its Notice of Customer Rights. (Pls.' S.M.F. ¶ 17.) MPUC denied the waiver request and informed CMP that the Without Approval Language directly contradicted MPUC's rules. (Pls.' S.M.F. ¶ 18.) The Notice of Customer Rights was also problematic because it did not provide a five business day warning of disconnection or distinguish between cycle disconnection, which may be permitted without CASD approval, and permanent disconnection that requires CASD approval. (Pls.' S.M.F. ¶¶ 20, 21.) MPUC required CMP clearly differentiate these forms of disconnection in its correspondence with customers. (Pls.' S.M.F. ¶ 22.) CMP accordingly revised its Notice of Customer Rights, and for the 2015-2016 Winter Period it began using a revised form that did not include the Without Approval Language. (Def.'s S.M.F. ¶ 19.)
MPUC may waive the requirements imposed by its rules upon written request by CMP. E.g., 65-407 C.M.R. ch. 815, § 16(A) (2019). CMP may also seek waivers to proceed with disconnection of individual customers without permission from CASD. Id. § 16(B). CMP submitted 84 winter requests to disconnect to MPUC during the 20152016 Winter Period; 14 requests during the 2016-2017 Winter Period; and no requests between 2017 and 2020, (Pls.' S.M.F. ¶ 11.) After the 2015-2016 Winter Period, CMP ceased seeking waivers and permission to disconnect customers during Winter Periods but continued using its Winter Notices with the Without Approval Language, (Pls.' S.M.F, ¶ 12.) CMP ceased seeking waivers for winter disconnections because the waiver process was labor-intensive and infrequently resulted in an approved disconnection. (Pls.' S.M.F. ¶ 13.) At the time of CMP's waiver request, it was aware that its use of the Without Approval Language violated MPUC's rules. (Pls.' S.M.F. ¶ 23.).
Notwithstanding the warning about the Without Approval Language and the revision to its Notice of Customer Rights, CMP continued to include the language in the Urgent Card through October of 2018. (Def.'s S.M.F. ¶ 13; Pls.' S.M.F. ¶¶ 25, 27, 48, 49.) As alluded to above, the Urgent Card accompanied the Notice of Customer Rights within CMP's PV Package. (Pls.' S.M.F. ¶ 26.) However, with regard to the MPUC's enforcement of its rules, it did not matter whether the Without Approval Language regarding disconnection during the Winter Period was in a Notice of Customer Rights, or any other type of notice - it was not acceptable. (Pls.' S.M.F. ¶ 6.) Thus, during March of 2018, MPUC notified CMP that use of the Without Approval Language in the Urgent Card misinformed CMP's customers and should be removed. (Def.'s S.M.F. ¶ 20; Pls.' S.M.F. ¶ 29.) CMP's then acting Manager for Customer Service Quality acknowledged that the continued use of the Without Approval Language in the Urgent Card was improper. (Pls.' S.M.F. ¶ 32.) CMP complied with MPUC's request during October of 2018, in anticipation of the upcoming Winter Period. (Def.'s S.M.F. ¶¶ 13, 21.)
The notice stated, in part, "any communications about or during the winter period would need to be clear to consumers about the disconnection process and how the CASD's permission was required, whether that communication was by phone, letter, posting or in person, or any other means. Any consumer told about or during the winter period that a utility can disconnect consumers without going to CASD would be misinformed." (Pls.' S.M.F. ¶ 29.).
Nonetheless, even though CMP worked to remove the Without Approval Language from its PV Packages in their entirety, some customers still received packages that included the language during the 2019-20 Winter Period. (Pls.' S.M.F. ¶¶ 28, 31.) At the time, CMP was aware of its need to check all of its boilerplate notices to ensure that they did not include the Without Approval Language. (Pls.' S.M.F. ¶ 33.) Members of CMP's management internally discussed its use of the Without Approval Language; they were aware that use of the language in CMP's Winter Notices violated MPUC's rules. (Pls.' S.M.F. ¶¶ 30, 49.)
One such customer was Deane, who received a PV Package that included an Urgent Card with the Without Approval Language during January 2020. (Pls.' S.M.F. ¶ 28.).
Despite its knowledge and the numerous warnings it received, CMP continued to include the Without Approval Language in its Letter 180 through January of 2020. (Def.'s S.M.F. ¶¶ 15, 22; Pls.' S.M.F. ¶¶ 27, 34, 43.) Prior thereto, CMP was aware that the Letter 180 template that included the Without Approval Language violated MPUC's rules. (Pls.' S.M.F. ¶ 38.) CMP's Manager for Customer Service Quality during the relevant period believed that it was concerning that CMP did not remove the Without Approval Language from its Letter 180 template until January 2020. (Pls.' S.M.F. ¶ 40.) Further, she acknowledged that CMP should have ensured that all of its Winter Notices conformed with MPUC's rules when CMP first learned that its use of the Without Approval Language was improper, during 2015. (Pls.' S.M.F. ¶¶ 46, 50.) Despite communications about the Without Approval Language and MPUC's interpretation of the applicable regulations, leading up to January of 2020 CMP continued to utilize the language and, after consulting with staff from its legal department, indicated to its employees who handle credit and collections that "it is not necessarily the case" that it cannot disconnect any customer during a Winter Period. (Pls.' S.M.F. ¶ 44.)
CMP mailed 49,786 Letters 180 that included the Without Approval Language to customers during the 2017-2018 Winter Period, 14,888 during the 2018-2019 Winter Period, and 1,045 during the 2019-2020 Winter Period. (Pls.' S.M.F. ¶¶ 35-37.).
CMP's continued use of the Without Approval Language through January of 2020 was due, at least in paid, to its reading of the exceptions the regulations provide for unoccupied premises. (Pls.' S.M.F. ¶ 45.) Ultimately, however, during August of 2020 CMP consented to a finding by the MPUC that its sending of any material containing the Without Approval Language violated MPUC rules, and to payment of the maximum penalty of $500,000, (Def.'s S.M.F. ¶ 23; Pls.' S.M.F. ¶¶ 63-66.)
MPUC was also concerned with CMP's inclusion of the Without Approval Language on a page within its website, and with CMP's customer service representatives allegedly informing customers that they could be disconnected without CASD approval. (Pls.' S.M.F. ¶¶ 52, 53.).
III. Plaintiffs' Expert; Emotional Distress
Plaintiffs' expert witness, Dr. David A. Marks, Ph.D, is a psychologist. (Pls,' S.M.F. ¶ 67.) According to Dr. Marks, "severe" or "extreme emotional distress" describes a person experiencing a deeper level of distress than just slightly being bothered, which can vary from person to person. (Pls.' S.M.F. ¶ 69.) Emotional distress, also known as mental anguish or suffering, may be defined as a highly unpleasant emotional reaction (e.g., anguish, humiliation, or fury) that results from another's conduct. (Pls.' S.M.F. ¶ 75.) It may result from a mental health issue or the particulars of an individual's circumstances, such as relationship difficulties or financial strain. (Pls.' S.M.F. ¶ 76.) However, emotional distress is a broad term that can refer to a wide range of symptoms from various mental health disorders, and anyone can experience emotional distress even if they do not meet the criteria for a psychological disorder. (Pls.' S.M.F. ¶ 79.)
A person may experience many reactions to a sudden event or stimulus that would be expected to cause stress. (Pls.' S.M.F. ¶ 72.) Symptoms of emotional distress may take on any of a wide variety of forms. (Pls.' S.M.F, ¶ 76.) People may respond to threatening circumstances in different ways. (Pls.' S.M.F. ¶ 78.) The characteristics and symptoms of emotional distress may vary depending on the presence of any underlying mental health disorders, and any such disorders may be exacerbated by sudden stress (such as when an individual with post-traumatic stress disorder is triggered). (Pls.' S.M.F. ¶ 81.) An individual does not have to be diagnosed with a mental disorder, such as those included in the DSM 5, to meet the criteria for emotional distress. (Pls.' S.M.F. ¶ 82.) Nor does the fact that one did not seek professional treatment for their symptoms negate the fact that they could be experiencing severe emotional distress. (Pls.' S.M.F. ¶ 83.)
These symptoms may include: feeling overwhelmed, helpless, or hopeless; feeling guilt without a clear cause; spending a lot of time worrying; having difficulty thinking or remembering; sleeping too much or too little; changes to one's appetite; relying more heavily on mood-altering substances, such as alcohol; isolating from people and activities; experiencing unusual anger or irritability; experiencing fatigue; difficulty keeping up with daily tasks; and, experiencing new, unexplained pain. (Pls.' S.M.F. ¶ 80.).
The threat of an action that would adversely impact life, shelter or family would be expected to cause some people to have an extreme emotional reaction. (Pls.' S.M.F. ¶ 73.) An event that threatens one's well-being or ability to care for loved ones, or that occurs in a situation in which one feels powerless to act within an imbalanced power dynamic, would also be expected to result in severe emotional distress for most people. (Pls.' S.M.F. ¶ 77.) Electricity is an existential necessity in Maine during winter. (Pls.' S.M.F. ¶ 70.) The perceived threat of imminent loss of functional shelter during winter can cause severe emotional distress. (Pls.' S.M.F. ¶ 71.) For example, receiving a notice of disconnection of one's electricity during the winter would be expected to cause an extreme emotional response for individuals already experiencing financial difficulty. (Pls.' S.M.F. ¶ 74.) According to Dr. Marks, each of the Plaintiffs experienced severe emotional distress as a result of receiving Winter Notices from CMP. (Pls.' S.M.F. ¶¶ 84, 112, 131, 156.) Dr. Marks did not offer any opinion regarding any shock, illness, bodily harm, disease or disorder other than "severe emotional distress."
IV. Plaintiffs' Individual Cases a. Deane's interactions with CMP.
As of early 2018, Deane was living with his wife and two children and relied on electric service provided by CMP. (Def.'s S.M.F. ¶ 24; Pls.' S.M.F. ¶ 85.) At the time when they began receiving CMP's service, his family's monthly bill was approximately $180. (Pls.' S.M.F. ¶ 85.) That amount soon increased to approximately $300 per month, and Deane fell behind on his payments, (Def.'s S.M.F. ¶ 25; Pls.' S.M.F. ¶ 85.) He entered a payment plan wherein he paid an additional $50 toward the arrearage, but Deane could not maintain that plan. (Def. 's S.M.F. ¶¶ 27, 28; Pls.' S.M.F. ¶ 85.) Deane's electric service was disconnected by CMP during September or October of 2019, and restored upon payment of a full month's bill. (Pls.' S.M.F. ¶ 85.) Deane fell behind on his payments again during December of 2019. (Id.)
During the Winter Periods for 2018-2019 and 2019-2020, CMP sent Deane several Disconnection Notices, Letters 180 and other documents, many of which contained the Without Approval Language. (Def.'s S.M.F. ¶ 26; Pls.' S.M.F. ¶ 86.) None of them contained a specific five business day warning, nor did they contain language clarifying that CMP could not disconnect the customer without CASD approval. (Pls.' S.M.F. ¶¶ 86, 87.)
Before the 2019-2020 Winter Period, Deane also received numerous Disconnect Notices that did not contain the Without Approval Language. (Def.'s S.M.F. ¶ 31.).
For example, Deane received a Disconnect Notice dated March 15, 2019, that provided a disconnection date of March 25, 2019, and indicated that payment in the amount of $1,379.36 was required to stop disconnection. (Pls.' S.M.F. ¶ 88.) After receiving the March 2019 notice, Deane called CMP and informed a customer service representative that he had gone to a food pantry earlier that day that paid $300 towards his bill, and that he was exploring additional assistance programs. (Pls.' S.M.F. ¶ 89.) Deane explained that, while he waited on additional assistance, he sought assurance that CMP would not disconnect his power because he had small children who could not be without heat at home. (Pls.' S.M.F. ¶¶ 90, 95.) The customer service representative provided no such assurance, and confirmed that Deane's power could be shut off as of the disconnection date. (Pls.' S.M.F. ¶¶ 91, 96.)
Deane's experience with CMP during March 2019 made him believe that calling CMP was not enough to avoid the threat of disconnection. (Pls.' S.M.F. ¶ 97.) When he received Winter Notices during the following winter, such as a Disconnect Notice during December of 2019, he believed that calling CMP was not an option and that he had to satisfy CMP's demand for payment or else his account would be disconnected. (Def.'s S.M.F. ¶ 35; Pls.' S.M.F. ¶ 97.) In fact, upon receiving Winter Notices from CMP during January of 2020, Deane was worried that CMP was going to disconnect his electric service because the March 2019 disconnection date had passed and the notices explicitly stated that MPUC's permission was not required for disconnection. (Pls.' S.M.F. ¶ 98.)
First, on or about January 14, 2020, CMP mailed a Letter 180 to Deane that included the Without Approval Language. (Def.'s S.M.F. ¶ 39; Pls.' S.M.F. ¶ 99.) The letter also stated "[i]f you contact us, we will not disconnect your electric service unless you refuse to negotiate a reasonable payment plan," identified sources of financial assistance, and explained that CASD would establish a reasonable payment plan if Deane and CMP could not agree to one. (Def.'s S.M.F. ¶ 39.) Upon reading the letter, Deane and his wife "were both scared shitless because we thought we were going to be without power in the middle of the winter with a two-year-old and with a four-year-old" and because Deane believed that CMP "can shut your power off in the middle of the winter with no permission needed." (Pls.' S.M.F. ¶ 100.) Deane was also afraid for his health because he suffers from asthma, which flairs up and worsens during winter and which causes him to rely on nebulizer treatment. (Pls.' S.M.F. ¶ 105.)
Next, on or about January 21, 2020, Deane received another notice from CMP, which was hand-delivered. (Pls.' S.M.F. ¶¶ 28, 101.) That notice threatened disconnection of his electric service and affirmatively stated the Without Approval Language. (Id.) Nowhere on this notice or on any previous collection notice received by Deane from CMP during a Winter Period was it stated that CMP requires permission of the CASD to disconnect his service, that CMP is required to notify him of its request to CASD for such permission, that CASD has the authority to prevent such disconnection based on the factors identified in MPUC's rules, or that if the customer does not respond within five business days of receipt of the Notice of Customer Rights, then CMP may seek permission to disconnect from the CASD. (Id.) These representations and omissions made CMP's notice misleading and false. (Id.)
From the time he received the first Disconnect Notice during March of 2019 until approximately January 25, 2020, when he learned that the statements in it were false and that CMP may not permanently disconnect service during a Winter Period without approval of the CASD, Deane and his family worried night and day about the threatened disconnection and what would happen to them if their electricity was disconnected. (Pls.' S.M.F. ¶¶ 88,102.) This worry resulted in sleepless nights and extreme mental distress for Deane. (Pls.' S.M.F. ¶ 102.) As a result of the misleading notices, Deane feared that his electricity would be disconnected. (Pls.' S.M.F. ¶ 104.) He suffered from constant anxiety about the possibility of being summarily disconnected during the winter, which would mean his family would be without heat and a warm and safe space for them to live in. (Id.)
The stress and anxiety from CMP's Winter Notices, together with winter weather conditions, made Deane's asthma worse. (Pls.' S.M.F. ¶ 105.) He feared that he would lose his ability to use his nebulizer to treat his asthma if CMP disconnected his electric service, and his blood pressure increased. (Id.) Deane feared that he would die in front of his children, which made him "feel like a piece of shit." (Pls.' S.M.F. ¶ 104.)
Deane disputed the amounts that he allegedly owed to CMP. (Pls.' S.M.F. ¶ 103.) He had to find his own solution after receiving CMP's Winter Notices because he knew that his family could not satisfy CMP and because he knew that a loss of power during wintertime would cause drastic harm to his family. (Id.) Out of fear that his family would be unable to satisfy CMP and avoid winter disconnection, on or about March 2020, Deane moved them from their apartment and purchased a camper for about $4,500. (Id.) Deane parked the camper on land owned by a family member and lived there for a time. (Id.) The children were uprooted from their home and wondered why they had to leave. (Id.)
As each disconnection date approached, it was "very, very stressful" for Deane. (Pls.' S.M.F. ¶ 107.) One of the causes of Deane's stress was the uncertainty during winter as to whether CMP would disconnect their electricity, because CMP had disconnected them after a stated disconnection date in the past. (Pls.' S.M.F. ¶ 106.) This made Deane "absolutely terrified" because, in his words, he "never knew if I was going to come home and the power was going to be off and how much I was going to have to pay to get it turned back on. I was thinking, 'are we going to be cold? Is our home going to be cold? Is our pipes going to freeze?' My asthma has been unregulated so if I needed my nebulizer I wouldn't have it if we lost power and I could end up in the emergency room. I wouldn't be able to use the medical equipment that I needed." (Id.) Also according to Deane, "CMP would send out so many disconnection notices that we never knew which one was going to be true []. It was like a game of Russian roulette. It bred a lot of fear. I think the stress caused my asthma to flare up. It affected me physically. It was just a hard time, especially going into the holidays and just trying to keep the house warm. It was really difficult." (Pls.' S.M.F. ¶ 107.)
Ultimately, Deane felt that his family could be disconnected at any time and he never knew if they would have the money needed to restore their electric service during the winter; he felt they had no protection. (Pls.' S.M.F. ¶ 108.) Deane's wife cried because she felt helpless and scared, and because they didn't know how to fix their issue with CMP. (Pls.' S.M.F. ¶ 109.) Both worried day and night that they would be disconnected at any time. (Id.) Had CMP's notices contained accurate information regarding CMP's need for CASD's approval prior to disconnection, it would have been a relief to Deane and made the situation less stressful. (Pls.' S.M.F. ¶ 111.) It would have been a relief for Deane to know that someone would advocate for his family and provide them with options. (Id.) Deane, however, testified that he could not recall whether he discussed his symptoms with a counselor or medical provider. (Def.'s S.M.F. ¶¶ 47-48.) He continued to care for his children, and did not recall missing work due to his distress. . (Def.'s S.M.F. ¶ 50.)
Dr. Marks testified that these events caused Deane to endure severe emotional distress. (Pls.' S.M.F. ¶ 112.) The disconnection notices Deane received constituted "sudden stressors" to him because they threatened his wellbeing, as without electricity he could not use his nebulizer for his asthma or keep his home warmed for his family with small children. (Pls.' S.M.F. ¶ 113.) Deane's responses were born from his worry and fear for his health and his family's health, and he continued to work to try and pay his bills. (Pls.' S.M.F. ¶ 114.)
b. Mitchell's interactions with CMP.
Mitchell began receiving electric service from CMP during 2013. (Pls.' S.M.F. ¶ 115.) Commencing during 2017, Mitchell experienced very high bills from CMP, and she questioned the increased charges. (Id.) CMP ceased sending her bills, but repeatedly noticed her about disconnection at various times of the year. (Id.) Mitchell received Winter Notices during the Winter Periods of 2017, 2018, and 2019. (Id.) For example, she received a notice dated November 8, 2019, advising her that her service would be disconnected on November 25, 2019. (Id.) She also received a notice dated January 21, 2020, advising her that her service would be disconnected on February 6, 2020. (Id.)
Mitchell is a retired United States Army veteran. (Pls.' S.M.F. ¶ 115.) She was deployed to Iraq and Kuwait, where she experienced combat, during 2003. (Pls.' S.M.F. ¶ 116.) Mitchell has physical disabilities from her service, which include spinal injuries, neuropathy and numbness, and hearing issues. (Id.) She was diagnosed with post-traumatic stress disorder during 2009. (Id.) She was also diagnosed with fibromyalgia and Chronic Fatigue Syndrome. (Id.)
In response to the increase in the amount of her CMP bills, Mitchell first tried to call CMP but did not do well with the customer service representative on the line. (Pls.' S.M.F. ¶ 118.) In these calls either Mitchell or the CMP representative would hang up. (Id.) Then Mitchell began trying to contact CMP in writing. (Id.) She wrote CMP a letter each month questioning her bills and trying to figure out exactly what she owed. (Id.) She didn't receive any response to her letters, only disconnection notices. (Id.) Even though Mitchell disputed her bills, she made numerous payments to CMP during the 2017-2018 Winter Period. (Pls.' S.M.F. ¶ 129.)
During March of 2018, a person who identified himself as a CMP employee arrived at Mitchell's home. (Def.'s S.M.F. ¶ 84; Pls.' S.M.F. ¶ 119.) He demanded that payment be made to him on the spot, and, when payment was not forthcoming, he gave Mitchell a notice that cited disconnection and stated the Without Approval Language. (Pls.' S.M.F. ¶ 119.) Mitchell showed the employee that she had just made a payment. (Id.) Mitchell was not contacted by CMP during the month leading up to the employee's visit. (Id.) It was unclear to Mitchell for which months the employee was demanding payment. (Pls.' S.M.F. ¶ 120.) He would not show her documentation and told her that she owed a large sum of money and that she needed to make a payment right then and there, or else he would disconnect her at her meter. (Id.) Even though CMP's employee made contact with Mitchell during the premises visit, the very next day CMP mailed her a Letter 180 that included the Without Approval Language. (Def.'s S.M.F. ¶ 85; Pls.' S.M.F. ¶¶ 42, 121.)
According to CMP, its targeted audience for Letters 180 are its customers with whom it has had no contact after multiple attempts to reach them. (Pls.' S.M.F. ¶ 41.).
Mitchell experienced "the stress of getting a disconnect notice that tells me I'm going to be disconnected without regard for CMP rules and without regard for [MPUC] permissions." (Pls.' S.M.F. ¶ 117.) The emotional distress CMP caused by noticing Mitchell about the possibility of disconnection with no regulatory oversight or protection led to Mitchell not being able to eat, other than crackers to calm her stomach, for a few days. (Pls.' S.M.F. ¶ 122.) Her stomach "was very upset," she paced and cried, and she did not sleep the night of the CMP employee's premises visit to her home and for a few more days thereafter. (Def.'s S.M.F. ¶¶ 90, 91; Pls.' S.M.F. ¶ 122.) She became physically sick because her anxiety was so bad. (Pls.' S.M.F. ¶ 126.) At times her heart would race and she would resort to pacing; she also cried uncontrollably. (Pls.' S.M.F. ¶ 130.) Mitchell tried various coping skills that she acquired after her retirement from the armed forces, but nothing worked. (Pls.' S.M.F. ¶ 123.)
Mitchell believed CMP was going to shut off her power during winter and that she would then be completely without power until she paid whatever CMP said she owed. (Pls.' S.M.F. ¶ 125.) She could not pay CMP, so she was anxious and stressed that she could wake up one morning without electricity. (Id.) Her mood worsened with each notice she received from CMP. (Pls.' S.M.F. ¶ 130.) She believed that CMP could do what it said and disconnect her power without CASD approval because CMP never informed her what her actual rights were. (Pls.' S.M.F. ¶ 124.) Nowhere on any of the notices Mitchell received did CMP indicate that it needed MPUC's permission to disconnect her service, that CMP is required to notify her of its request for permission to disconnect her power, that MPUC has authority to prevent disconnection based on factors identified in its rules, or that if she did not respond within five business days of receipt of the Notice of Customer Rights that CMP may then seek permission from the MPUC to disconnect her. (Pls.' S.M.F. ¶ 127.) Yet, Mitchell neither sought treatment for nor received a formal diagnosis of the symptoms associated with her distress. (Def.'s S.M.F. ¶ 92.)
According to Dr. Marks, Mitchell experienced severe emotional distress due to the prospect of not having electricity during the coldest months of winter. (Pls.' S.M.F. ¶ 131.) Mitchell felt stressed beyond what she could manage or endure, and when she learned that CMP could remotely disconnect her meter she felt powerless to act. (Pls.' S.M.F. ¶ 134.) Mitchell experienced many symptoms as a result of her severe emotional distress: she did not eat or sleep, sometimes for multiple days and nights; she lost weight; and she began to pace and cry whenever she received disconnection notices. (Pls.' S.M.F. ¶ 133.)
c. Lavender's interactions with CMP.
Lavender, who is married with two children, began receiving electrical service from CMP during 2016 or 2017. (Pls.' S.M.F. ¶ 135.) His service is measured by two meters, one for his residence and the other for his garage located within the same lot, and he accordingly receives two bills from CMP. (Def s S.M.F. ¶ 51; Pls.' S.M.F. ¶ 135.) Lavender's primary sources of income were from his tiling business and his family's farm, neither of which could operate without electricity. (Pls.' S.M.F. ¶ 136.) Lavender has experienced low-level depression since he was a teenager, and he was diagnosed with bipolar disorder, generalized anxiety disorder, obsessive compulsive disorder, attention-deficit/hy per active disorder, and Tourette's syndrome. (Id.)
During 2018, Lavender noticed significant increases to his electric bills and fell behind on his payments. (Pls.' S.M.F. ¶ 137.) He received a Disconnect Notice from CMP dated October 20, 2018, that provided a disconnection date of November 15, 2018. (Pls.' S.M.F. ¶ 138.) On or about November 30, 2018, CMP sent a Letter 180 to Lavender that stated the Without Approval Language. (Pls.' S.M.F. ¶¶ 139, 144.) By the time Lavender received the November 30, 2018, letter from CMP the November 15 disconnection date had passed, and he believed that he could be disconnected at any point thereafter. (Pls.' S.M.F. ¶ 140.)
Over the course of 2018, 2019, and 2020, CMP sent Lavender several disconnection notices, Letters 180 and other documents related to service for his two accounts. (Def.'s S.M.F. ¶ 60; Pls.' S.M.F. ¶ 141.) Many of these notices were Winter Notices that contained the Without Approval Language. (Pls.' S.M.F. ¶ 141.) None of them provided a specific five business day warning; indicated that CMP could not disconnect Lavender without approval from CASD; indicated that CMP was required to notify Lavender of its request to the MPUC for such permission; or indicated that the MPUC has authority to prevent disconnection based on factors enumerated in its rules. (Pls.' S.M.F. ¶¶ 141, 142.)
After receiving CMP's November 30, 2018, Letter 180, Lavender worried night and day about losing power and what would happen to him and his family. (Pls.' S.M.F. ¶ 143.) He believed that CMP could shut off his electricity at any moment, and constantly worried that it would happen. (Pls.' S.M.F. ¶ 144.) He and his wife began having a lot of trouble sleeping: "We started having more trouble kind of keeping the kids from finding out what was going on at that point. I went out almost immediately and I went to multiple Good Wills and Salvation Armies in the area, and I went out and bought several like oil lamp[s], like hurricane lanterns for light. Propane was cheaper than the amount CMP wanted so we made sure we had propane." (Id.)
To Lavender, receiving disconnection notices during the non-winter months as opposed to the Letter 180 he received dated November 30, 2018, was a "whole different ball game." (Pls.' S.M.F. ¶ 145.) Specifically, he was worried that the below freezing temperatures would kill his family if their power was disconnected, and particularly worried about his children. (Id.) The distress "really didn't hit until ... that letter from November 30th. That was really the point where ... we lost hope, where we hit a wall and said, okay, you know, none of the options work. Nothing's going to work. There's nothing we can do about this." (Pls.' S.M.F. ¶ 146.) Lavender believed that CMP meant what it stated it would do: "Through each of those winters when I got disconnection notices, I couldn't jump to the future and go, yeah, but they'll never do it. I had to look at it and go, I'm getting a disconnection notice during the winter. Some even say that they can disconnect us like right now. I have to ... look at that and treat it as though it's about to happen because that's what ... looks as though is going to happen." (Pls.' S.M.F. ¶ 147.) Lavender did contact CMP, but he never found them to do anything to help. (Pls.' S.M.F. ¶ 148.)
Lavender's communications with CMP resulted in confusion regarding whether he disputed his bill, his interest in entering into a payment arrangement with CMP, and what he was required to submit to CMP to establish a medical emergency or condition that would exempt him from disconnection. (Def.'s S.M.F. ¶¶ 68-69, 71, 74, 76.).
After receiving the November 30, 2018, Letter 180, there were quite a few nights when Lavender did not sleep. (Pls.' S.M.F. ¶ 149.) He and his wife did not have sex during the 20182020 Winter Periods because "[i]t's kinda hard to get interest in spending time with your spouse when you're stressed about all this stuff," and they argued more frequently because of the looming threat of disconnection "to the point that the kids heard it a good bit, and the kids got concerned." (Id.) Lavender felt depressed and anxious due to receiving CMP's disconnection notices during wintertime, to the extent he discussed the notices and his resulting depression and anxiety during family counseling sessions. (Pls.' S.M.F. ¶ 154.)
Lavender's children, ages eight and twelve, are asthmatic and receive their asthma medication through a nebulizer. (Pls.' S.M.F. ¶ 152.) He feared that a disconnection would result in his children being unable to receive their asthma medication as needed. (Id.) One of the children also has cerebral palsy, and Lavender treats their pain using heated rice packs. (Pls.' S.M.F. ¶ 155.) Without electricity, he could not heat the packs for his child. (Id.) Nor could he ensure that his children continued to receive the home assistance they need or that they attended their frequent doctor's visits. (Id.) Lavender and his wife were generally afraid that they would not be able to access the services they needed to keep their children safe and healthy if CMP disconnected their electric service. (Id.)
Lavender requires the internet to run his business and operate his farm, and he thought he might lose both as a result of losing power. (Pls.' S.M.F. ¶ 155.) This added to his stress. (Id.) He was afraid for the lives of his farm animals that provided his family with food and income. (Pls.' S.M.F. ¶ 152.) These fears caused Lavender and his wife to lose sleep and suffer anxiety. (Id.) They would stay awake at night and try to figure out ways to pay their bills even though they disputed the amounts billed. (Pls.' S.M.F. ¶ 154.) However, Lavender testified that despite his stress, he continued to go to work, take care of his animals, and otherwise carry on the activities of daily living. (Def.'s S.M.F. ¶ 65.)
According to Dr. Marks, Lavender suffered severe emotional distress after receiving winter disconnection notices from CMP. (Pls.' S.M.F. ¶ 156.) Lavender already suffers from depression, generalized anxiety and other disorders. (Pls.' S.M.F. ¶ 157.) The thought of not having electricity and not being able to provide for his wife and children, who have their own health issues, caused Lavender to lose sleep. (Pls.' S.M.F. ¶ 158.) He went many nights without sleep. (Pls.' S.M.F. ¶ 160.) He also experienced anxiety and guilt, which he discussed with his therapist multiple times. (Pls.' S.M.F. ¶ 159.) He was afraid that his children would find out that he was behind on CMP's bills and that they could consequently lose power, which caused his loss of sleep to worsen. (Id.)
DISCUSSION
The four elements of a claim for intentional infliction of emotional distress ("IIED") are that (1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from her conduct; (2) the conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious, utterly intolerable in a civilized community; (3) the actions of the defendant caused the plaintiffs emotional distress; and (4) the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it. Argereow v. Weisberg, 2018 ME 140, ¶ 27, 195 A.3d 1210 (citation and quotation marks omitted).
Here, CMP argues that the Plaintiffs' evidence is insufficient to survive summary judgment on the second element requiring proof of its "extreme and outrageous" conduct and the fourth element requiring "severe" emotional distress. When considering summary judgment on a claim for IIED, the determination of whether the facts alleged are sufficient to establish that the defendant's conduct is "so extreme and outrageous to permit recovery" is a question of law for the court to decide. Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, ¶ 16, 711 A.2d 842 (citation and quotation marks omitted). Similarly, the court must determine whether the facts establish that the emotional distress is sufficiently severe to warrant summary judgment. Bratton v. McDonough, 2014 ME 64, ¶ 24, 91 A.3d 1050 (citing Restatement (Second) of Torts § 46 cmt. j (Am. Law Inst. 1965)). Once the court decides there is sufficient evidence to reach those thresholds, it is up to the jury to determine whether the outrageousness of the conduct and the severity of the emotional distress existed. Id.
I. The Plaintiffs generated a genuine issue of material fact whether CMP's conduct was sufficiently "extreme and outrageous."
To determine where the threshold for outrageousness lies, the court compares this case to similar cases. Viewing the record in the light most favorable to Plaintiffs, CMP's conduct here includes inaccurate statements that it could disconnect a customer's electric service to their home without approval from the MPUC. Construing the evidence in favor of the Plaintiffs, CMP should have known that inclusion of the Without Approval Language in the Winter Notices was inaccurate and illegal as early as 2015. Yet, the language remained on notices as late as 2020. The Notice of Customer Rights was also inaccurate in that it did not inform the customer that they contact CMP within five business days of a notice's postmark date or CMP could then seek permission from the CASD to terminate service.
Mitigating the impact of the inaccurate threat that CMP could terminate a customer's service without CASD's approval was a provision encouraging the customer to contact CMP about a payment plan or financial assistance. Each Plaintiff, however, reported calls to CMP or a premises visit from a CMP representative that either affirmed the threat of disconnection during the winter or did not result in clarification regarding the process underlying that threat.
When comparing this case to Law Court decisions on whether a plaintiff fails the outrageousness element as a matter of law or alleges sufficient facts to get to a jury, the court sees this case as having two important factual elements. First, it involves an economic, regulated, contractual relationship supplying a vital service. Second, it strikes at a party's ability to live in their home. The court reviews the Law Court decisions based on facts that most closely resemble this case, which provide support for both sides.
In Rubin v. Matthews International Corporation, a defendant repeatedly misrepresented that a memorial monument had been shipped and would be delivered on time for a religiously significant event. Rubin v. Matthews Int'l Corp., 503 A.2d 694, 695-96, 700 (Me. 1986). The Law Court concluded that the conduct was sufficient to state a claim for IIED. Id. at 700. The Court commented that courts are most likely to recognize a claim of outrageousness when the parties are bound by contracts regulating an economic relationship. Id. Compared to Rubin, the Plaintiffs have generated sufficient evidence of outrageous conduct.
The Law Court's decision in Bratton reviews an IIED claim in a contractual relationship addressing the home itself. In Bratton, a landlord "allowed a family with young children to live in a house that exposed the children to toxic levels of lead for several years" and did not relocate the family, despite being under a legal duty to do so, for four months after the State declared the house to be a lead hazard. Bratton, 2014 ME 64, ¶ 23, 91 A.3d 1050. Like in this case, the landlord was one in a dominant economic position who neglected a specific legal duty, and the conduct addressed the plaintiffs' fundamental safety at home. The Law Court found that the trial court erred by not letting the case go to the jury. Id. ¶¶ 23-27.
In Colford v. Chubb Life Insurance Company of America and Argereow, the Law Court held that economic conduct of a defendant was insufficiently outrageous to get to a jury on an IIED claim. Colford v. Chubb Life Ins. Co. of Am., 687 A.2d 609, 617 (1996); Argereow, 2018 ME 140, ¶ 28, 195 A.3d 1210. In neither case, however, did the conduct reach the level of outrageousness as in this case. Therefore, although these cases provide no support for the Plaintiffs, they also provide no assistance to CMP.
Colford addressed a disability insurer's treatment of its insured. Colford, 687 A.2d at 611 -12. After setting aside conduct that was not related to the claim, the Court focused on the facts that: (1) despite the disability insurer having told the insured not to worry about his securities registration which he used to sell securities through the insurer's wholly-owned subsidiary, the subsidiary cancelled the registration after hearing of the insured's disability and suit against the insurer; and (2) after initially waiving the insured's life insurance premiums because of the disability the insurer subsequently revoked the waiver on the basis that the insured did not qualify for the waiver, and he consequently lost his life insurance coverage for failure to pay his premiums. Id. at 616-17. While Colford does not support the Plaintiffs, the insurer's conduct does not rise to the level of CMP's conduct found here and does not support CMP. Similarly, in Argereow, the defendant hospital merely encouraged an applicant to withdraw her employment application after receiving a report of incompetence from the physician who previously employed her. Argereow, 2018 ME 140, ¶ 28, 195 A.3d 1210. The case provides the court with no guidance here.
In the end, the court concludes that there is a genuine issue of material fact for the jury. Construing the facts in favor of the Plaintiff, as the court must at this stage, a jury could find:
• CMP knew letters that stressed urgency assisted their collection efforts.
• It knew that cutting off electricity in the winter could have severe consequences for a Maine family.
• It knew that the notices were inaccurate and illegal, most significantly the Without Approval language, and in violation of MPUC regulations as early as 2015.
• When a consumer called for clarification or assurance, the company representatives did not correct or clarify the disconnection process for the consumer.
• There is really no good reason for a regulated utility delivering a vital service to be anything other than clear and accurate in its communications with its consumers.
A jury may find differently and may find that the error was merely a negligent bureaucratic snafu and not sufficiently outrageous. The court concludes, however, that it cannot find that the conduct was not sufficiently outrageous as a matter of law.
II. Whether the emotional distress endured by the Plaintiffs was adequately "severe."
The court next turns to the severity requirement. The Law Court recently spelled out the standard.
[W]hen ... the existence of the fourth element cannot be inferred from the extreme and outrageous nature of the defendant's conduct alone, a plaintiff must prove that her emotional distress was so severe as to have manifested objective symptoms demonstrating shock, illness, or other bodily harm. We do not preclude the possibility that this can be achieved without the corroborating testimony of an expert medical or psychological witness. That possibility is, however, remote. In most instances, proof of objective symptoms will require expert testimony to establish that the plaintiffs emotional injury qualifies for a diagnosis such as shock, post-traumatic stress
disorder, or some other recognized medical or psychological disease or disorder. ... This standard prevents recovery for emotional injuries that are anything less than severe.Lyman v. Huber, 2010 ME 139, ¶ 23, 10 A.3d 707 (citations omitted). "Emotional distress that is 'severe' is that which is 'extremely intense.'" Id. ¶ 21 (citation omitted). It must be so intense that no reasonable person could be expected to endure it. Id. (citing Curtis v. Porter, 2001 ME 158, ¶ 10, 784 A.2d 18). "Stress, humiliation, loss of sleep, and anxiety occasioned by the events of every day life are endurable." Schelling v. Lindell, 2008 ME 59, ¶ 26, 942 A.2d 1226.
Here, the court concludes that severe emotional distress cannot be inferred from CMP's extreme or outrageous conduct. Even if the court assumes that a jury would find CMP's conduct to be sufficiently outrageous, it does not necessarily follow that severe emotional distress occurred. For some, there may be no emotional distress at all. For others, mere irritation. Therefore, the Plaintiffs must each prove that his or her "emotional distress was so severe as to have manifested objective symptoms demonstrating shock, illness, or other bodily harm." Lyman, 2010 ME 139, ¶ 23, 10 A.3d 707. In comparing this case to Law Court decisions on whether a plaintiff fails the severity element as a matter of law or alleges sufficient facts for the question to reach a jury, the court concludes further that each of the individual Plaintiffs' evidence does not establish a prima facie case for this necessary element of their cause of action for IIED.
Plaintiffs, again relying on Rubin and Bratton, first assert that CMP's conduct was so extreme and outrageous as to permit an inference that Plaintiffs' emotional distress was severe. However, as noted by Plaintiffs, Rubin "does not mention any issues with the proof of emotional distress." Instead, Plaintiffs reason that the Rubin Court's failure to address the issue and the absence of discussion of objective symptomology imply a finding that the defendant's actions were sufficiently extreme and outrageous such that the severity of their symptoms could be inferred. (Pls.' Opp'n Mot. Summ. J. 18-19.) In Rubin, the plaintiff appealed dismissal of their IIED claim under M.R. Civ. P. 12(b)(6) for failure to properly allege that the defendant's conduct was "extreme and outrageous." Rubin, 503 A.2d at 695, 699. Hence, the Court accepted as true the allegations that the emotional distress suffered by the plaintiff was severe. Id. at 699. The court does not read Rubin to provide the reasoning-by-implication that Plaintiffs assert, and Rubin is not persuasive authority as regards the severity prong of IIED claims.
Bratton is distinguished by its facts. In Bratton, which dealt with a lead paint contamination, the Law Court vacated the trial court's judgment as a matter of law for the defendant on the plaintiffs IIED claim after deciding that a reasonable jury could find that the plaintiffs' IIED was severe. Bratton, 2014 ME 64, ¶ 24, 91 A.3d 1050. Notably, three minor children were among the plaintiffs. Id. ¶ 1. The defendant-landlord delayed relocating the plaintiffs to a new home for four months, and they continued to live at the contaminated premises during that time. Id. ¶¶ 4, 23. The plaintiffs testified that the children were scared and confused when their home was posted as "not safe for children"; that after sections of the house had been cordoned off to prevent lead dust from spreading, the children could not play with their toys, run around the house, go into one of the bedrooms, or touch any of their things that were in that bedroom; and that the children would scream "the poison is going to kill us" if a child attempted to enter the closed-off area. Id. ¶ 24. Unlike Bratton, none of the Plaintiffs in this case were placed at risk of physical injury by CMP through loss of their access to their home or to electricity during a Winter Period. Had CMP unlawfully disconnected the electricity, the result here might be different.
Plaintiffs also point to Harris v. Soley and the trial court decision in Davis v. Grover and argue that their own testimony about their emotional responses to CMP's conduct is sufficient to prove the severity of their emotional distress. (Pls.' Opp'n Mot. Summ. J. 19.) However, in Harris judgment on the IIED claim was entered for the plaintiffs as a result of the defendant's failure to comply with the discovery process and court orders. Harris v. Soley, 2000 ME 150, ¶ 6, 756 A.2d 499. The jury trial only addressed the question of damages. Id. ¶ 7. There was no fact-finding regarding liability, including as to the severity of the plaintiffs' emotional distress, that would imbue Harris with persuasive power in this case. Similarly, in Davis the trial court did not reach the question of severity specifically because it found that the conduct at issue was sufficiently extreme and outrageous to supply an inference of severity. Davis v. Grover, No. CV-01-34, 2002 Me. Super. LEXIS 69, at *22-23 (Apr. 2, 2002). As noted above, the court declines to do the same and concludes that severe emotional distress cannot be inferred from CMP's extreme or outrageous conduct.
Plaintiffs' symptoms are among those that do not permit a finding of severe emotional distress. See Schelling, 2008 ME 59, ¶ 26, 942 A.2d 1226 (the "[s]tress, humiliation, loss of sleep, and anxiety occasioned by the events of every day life are endurable," and not actionable).
Each of the Plaintiffs has pre-existing conditions that exacerbated, or were exacerbated by, their emotional distress. However, the test is whether "the harm alleged reasonably could have been expected to befall the ordinarily sensitive person." Holland v. Sebunya, 2000 ME 160, ¶ 18, 759 A.2d 205 (citation omitted); Schelling, 2008 ME 59, ¶ 25, 942 A.2d 1226 (reaffirming that "there is no recognition of damage to an 'eggshell psyche' in Maine"). Therefore, the court cannot consider the Plaintiffs respective medical conditions and diagnoses in the context of the severity of their emotional distress.
Deane was afraid about losing his power during winter, which would have affected his young children; he was also afraid about consequences to his own health because of his asthma; Deane's fear caused him anxiety and depression; he cried at times, and lost sleep; however, he does not recall whether he missed any work or discussed his symptoms with a counselor or doctor.
Mitchell became anxious, stressed, and upset; she paced and cried, lost sleep, and endured stomach pain and loss of appetite; however, she did not seek any treatment or diagnosis related to her symptoms. Mitchell's stomach pains come the closest of any of the Plaintiffs' symptoms to creating a genuine issue of material fact regarding severity. She did not seek treatment and there is no evidence regarding their duration or linking them specifically to CMP's wrongdoing as opposed to general angst arising from an inability to pay one's electric bills.
Lavender worried for himself, his children, his farm animals and his business; he felt depressed and anxious and experienced guilt; he lost sleep and stopped being intimate with his wife. Lavender continued to go to work, however, take care of his animals, and otherwise carry on the activities of daily living.
Lyman presents the best analogy for this case. In Lyman, the plaintiff described "feeling inadequate and withdrawn, socially paralyzed, and fearful and intimidated" due to the defendant's conduct. Lyman, 2010 ME 139, ¶ 24, 10 A.3d 707. Her friends also described her as being, at times, "guarded, jumpy, and withdrawn," "shaken," and "tense, afraid and on edge." Id. The Law Court reasoned that, although the plaintiff proved intermittent symptoms associated with her emotional distress, she nonetheless continued to meet the demands of daily living and never sought treatment from medical or mental health professionals. Id. The same can be said about the Plaintiffs in this matter. Hence, the Lyman Court could not conclude that the plaintiffs emotional distress was "so severe that no reasonable person could be expected to endure it." That conclusion also applies here.
Dr. Marks' affidavit is not helpful. Dr. Marks opines that the Plaintiffs have suffered severe emotional distress. His definition of severe emotional distress, however, contains many of the factors that the Law Court has ruled out as sufficient to constitute actionable severe emotional distress. Dr. Marks' definition would allow the types of emotional distress that the Court has chosen not to allow because they are not sufficiently severe. See id. ¶ 23. Dr. Marks neither-offered an opinion with respect to any of the Plaintiffs' objective symptoms nor provided any diagnosis that the Law Court would expect in most cases. See id.
Because the record evidence is insufficient to permit a finding that any of the Plaintiffs' emotional distress was so "severe" as to render it actionable, CMP is entitled to a summary judgment on Plaintiffs' IIED claim.
CONCLUSION
Based on the foregoing, the entry will be: Defendant Central Maine Power Company's Motion for Summary Judgment is GRANTED as to Plaintiffs' remaining claims for Intentional Infliction of Emotional Distress.
The Clerk is requested to enter this Order on the Docket, incorporating it by reference pursuant to Maine Rule of Civil Procedure 79(a).