a. Third Claim for Relief: Negligent Infliction of Emotional Distress
Defendant moves to dismiss the Third Claim for Relief which pleads negligent infliction of emotional distress. MBNA contends that the alleged negligent conduct in resolving the dispute as to Plaintiff's credit account does not give rise to a claim of negligent infliction of emotional distress. The Court agrees. Both Delaware and California narrowly limit a claim of negligent infliction of emotional distress. [FN2] "It is settled law in Delaware that, in a negligence action, for a claim of mental anguish to lie, an essential ingredient is present and demonstrable physical injury to the plaintiff." Garrison v. Medical Center of Delaware Inc., 581 A.2d 288, 293 (Del.1988). Similarly, California generally authorizes emotional distress damages only in cases of physical injury. See Branch v. Homefed Bank, 6 Cal.App.4th 793, 800, 8 Cal.Rptr.2d 182 (1992). California also permits recovery for emotional distress in certain specialized cases such as mishandling of remains, false diagnosis of potentially fatal disease, witnessing the injury of close relative, or negligence involving quasi-fiduciary duties in the cases of bad faith denial of insurance coverage. See id. (citations omitted).
FN2. As discussed further below, there is a dispute as to whether Delaware or California law governs disputes arising from the Agreement. The Court finds it appropriate to analyze the amended complaint under both states' laws.
*4 Plaintiff has alleged no physical injury which supports a claim for negligent infliction of emotional distress under Delaware or California law. Additionally, he has presented no authority that his claim falls within the narrow cases allowing recovery for emotional distress. Plaintiff generally cites to authority governing intentional infliction of emotional distress. See Murphy v. Allstate Ins. Co., 83 Cal.App.3d 38, 147 Cal.Rptr. 565 (1978); Cervantes v. J.C. Penny Co., 24 Cal.3d 579, 593-94, 156 Cal.Rptr. 198, 595 P.2d 975 (1979). Those cases are inapposite. Plaintiff also relies upon Crisi v. Security Ins. Co., 66 Cal.2d 425, 58 Cal.Rptr.2d 13, 426 P.2d 173 (1967), for the proposition that a plaintiff may recover for mental distress even if there is no physical injury. However, Crisi concerned whether emotional distress damages could be recovered under a claim of bad faith denial of insurance coverage. This issue is separate from whether a plaintiff may state a claim for negligent infliction of emotional distress based upon the facts presented. See Soto v. Royal Globe Ins. Co., 184 Cal.App.3d 420, 434, 229 Cal.Rptr. 192 (1986). [FN3] Plaintiff has presented no other authority indicating that alleged negligence in resolving credit disputes or reporting credit information supports a claim for negligent infliction of emotional distress. Absent clear authority to the contrary, this Court does not find that a claim for negligent infliction of emotional distress may lie based upon the facts as alleged by Plaintiff.
FN3. The Court recognizes that at least one California appellate court has permitted the recovery of emotional distress damages in addition to financial damages for a violation of California's Credit Card Act. See Young v. Bank of America Nat'l Trust & Savs. Ass'n, 141 Cal.App.3d 108,
115, 190 Cal.Rptr. 122 (1983). However, whether the remedies for a violation of California's Credit Card Act include emotional distress damages is a legally and analytically separate question from whether a plaintiff may allege a claim for negligent infliction of emotional distress. Consequently, the Court does not find that Young compels denying Defendant's motion.
Plaintiff also contends that Congress intended that claims for negligent infliction of emotional distress could be brought in the present situation, noting that under 15 U.S.C. section 1681h(e), an account holder may recover under a common-law theory of negligence in certain situations. See Dornhecker v. Ameritech Corp., 99 F.Supp.2d 918, 931 (N.D.Ill.2000); Whitesides v. Equifax Credit Information Servs., Inc., 125 F.Supp.2d 807, 811 (W.D.La.2000). However, the fact that Federal law does not prohibit state law negligence claims under certain circumstances is not relevant to whether Plaintiff has stated a prima facie claim for negligent infliction of emotional distress in the first instance. Because Plaintiff has failed to state a claim for negligent infliction of emotional distress under either Delaware or California law, the Court need not determine whether the claim fits within the exception under section 1681h(e). Accordingly, the Court GRANTS Defendant's motion to dismiss Plaintiff's Third Claim for Relief. Moreover, because neither Delaware or California law provides for recovery of emotional distress damages in the case of negligent conduct in resolving credit disputes or reporting credit information, amendment would be futile.
Davis v. Maryland Bank
Not Reported in F.Supp.2d, 2002 WL 32713429
Jun 19, 2002
Postby David A. Szwak » Sat Mar 18, 2006 11:45 am
- General Discussions, Forum Registration, and ID Theft and Credit-Related News Stories
- General Discussion
- News Stories on Identity Theft, Personal Data Thefts and Credit Reporting Abuses
- Current Cases
- Lawyer Jokes
- FCRA Statute and Defined Terms Under the FCRA
- FCRA Statute And Amendments: 15 U.S.C. 1681, et. seq.
- What is a Consumer [Credit] Reporting Agency?
- What is a Consumer [Credit] Report?
- Resellers: Who are They? What Do They Do? Are They Liable Under the FCRA?
- Investigative Consumer [Credit] Reports
- Who is a Furnisher?
- How to Get Your Credit Reports and How and Who to Write Your Dispute Letters to
- How To Get Your Credit Reports
- Dispute Letters
- Do You Have To Pay For Your Credit Report?
- FCRA Private Rights of Action and Duties Imposed by the FCRA
- Impermissible Access: 15 U.S.C. 1681b[f] and 1681q
- Front End Duties of the Credit Reporting Agencies: 15 U.S.C. 1681e(b)
- Back End Duties of the CRAs: 1681i[a]:
- Credit Bureau's Duty to Provide Consumer Documentation to Furnisher: 1681i[a][B]
- Duty to Add a Consumer's Dispute Statement in Association with a Specific Account and In Connection with the Credit File/Report: 15 U.S.C. 1681i[c]
- Furnisher FCRA Liability: 15 U.S.C. 1681s-2
- Failing to Mark Contested Accounts As Disputed: 15 U.S.C. 1681s-2[a]
- Obsolescence: When Must the Credit Reportings Come Off of the Credit Report: 15 U.S.C. 1681c
- Duty to Notate Disputed Accounts As Such: 15 U.S.C. 1681c[f]
- Adverse Action Notice Rules: 15 U.S.C. 1681m and ECOA
- Credit Solicitations Are Required to be Clear and Conspicuous: 1681m[d]
- Potential Exposure For Sanctions Due to Filing Bad Faith FCRA Cases: 15 U.S.C. 1681n[c], 28 U.S.C. 1927, and Fed.R.Civ.Proc. 11
- Credit Repair Organizations Act [CROA]
- 1681g: Credit Bureaus' Duties to Provide Reports/Disclosures and to Add 100 Word Statements of the Consumer
- Affiliate Sharing Problems and Violations, 15 U.S.C. 1681s-3
- Common Credit Report Errors and Agency Misconduct
- Credit Errors
- Theft of Identity
- Mixed File Cases
- Re-Aging: Debt Collector's Efforts to Revive Obsolete Reportings
- Reinsertion of Previously Deleted Data: How and When Can It Happen?
- VIP Databases and Offline Status
- Deceased Reporting Cases
- Causation: The Crucial Link Between Breach of a Duty and Damages
- Causation to Damage [Proving Your Damages Are Related to and Caused by the Defendants
- Types of Damages, Remedies, and Awards Under the FCRA and Related State Law Claims
- Damages Under FCRA
- Punitive Damages: 15 U.S.C. 1681n
- Injunctive Relief: FCRA and State Law
- Attorneys' Fees, Litigation Expenses and Costs:
- Declaratory Relief Under the FCRA
- What is Your Potential Case Worth? Other Case Verdicts, etc.
- FCRA Jury and Bench Trial Verdicts
- Other Federal Laws Related to Credit Reporting, Data Privacy, Billing Errors and ID Theft
- FDCPA Statute And Amendments: 15 U.S.C. 1692, et. seq.
- Fair Credit Billing Act, 15 U.S.C. 1666, et. seq.
- Identity Theft and Assumption Deterrence Act of 1998, 18 U.S.C. §1028
- Home Affordable Modification Program (“HAMP”) and Home Affordable Foreclosure Alternatives Program (“HAFA”)
- State Law Claims Related to Credit Reporting, Billing Errors, Privacy Breaches and ID Theft
- Invasion of Privacy: State Law
- Defamation: State Law
- Interference With Prospective Credit: State Law
- Interference With Marital/Family Relations: State Law
- Infliction of Emotional Distress/Mental Anguish: State Law
- Data Breach Claims and Issues
- Unfair and Deceptive Trade Practices Claims: State Law
- Jurisdiction, Venue, Removal to Federal Court, Remand to State Court, and Other Pre-Trial Jurisdicti
- Removal of FCRA Cases From State Court To Federal Court
- Personal Jurisdiction and Venue in Credit Reporting Cases
- FCRA Litigation Strategies and Procedural Issues and Law
- Settlements, Releases, Prevailing Party Status, and Other Things You Need to Know If You Resolve Your Case Before Judgment
- Offers of Judgment In FCRA Litigation
- Secret Documents, Product Information and Testimony
- Choicepoint Secret Documents:
- Equifax/CSC and Affiliates Secret Documents:
- Experian Secret Documents
- Innovis Secret Documents:
- Trans Union Secret Documents
- Furnisher and Public Records Suppliers Secret Documents
- Respondeat Superior, Vicarious Liability, and Whether Others Are Liable
- Liability For Employee's FCRA Violations? Liability For FCRA Violations by Third Parties?
- FCRA Preemption, Immunity, and Qualified Immunity
- FCRA Preemption: 15 U.S.C. 1681t[b][F] and Related Discussions
- FCRA Qualified Immunity: 15 U.S.C. 1681h[e] and Related Discussions
- States/Govermental Immunity From FCRA Claims?
- Jury Voir Dire, Instructions, Verdict Forms, etc.
- Jury Instructions and Jury Verdict Forms
- Jury Questionnaires, Voir Dire, Jury Selection and Jury Bias
- Credit Card Issues
- Credit Card Liabilities
- Do You Have a Right to Bring Claims and How Long Do You Have?
- Statute Of Limitation: 15 U.S.C. 1681p
- Standing to Sue
- Credit Scores, Adverse Action Codes, and Other Report Codes
- Credit Scores, Adverse Action Codes, Risk Factors, Denial Codes and Other Scores and Codes Supplied by the Credit Reporting Agencies
- The Mechanics of Credit Reporting
- Public Records Reportings [Non-Bankruptcy]
- Bankruptcy Reporting
- Student Loan Credit Reporting
- Metro Tape [I and II]: Standardized Credit Reporting Formats Used by the Credit Industry
- Defenses Asserted by Credit Reporting Defendants
- What Law Applies? Problems Barring Use of the Court and Law
- Arbitration, Forum Selection, Choice of Law, Choice of Venue and Other Adhesionary Clauses
- Conflicts of Laws Issues in FCRA and Related State Law Issues
- Standing and Statutes of Limitations
- Statute Of Limitation: 15 U.S.C. 1681p
- FCRA Legal Forms [Suits, Discovery, etc.]
- Discovery: Interrogatories, Requests For Production of Documents, Requests to Inspect, Requests For Admissions, Deposition Notices, Subpoenas, Deposit
- FCRA Sample Pleadings: Complaints, Motions, Oppositions and Other Standard Lawsuit Filings
- Defenses Frequently Asserted by Defendants to Consumer's Actions
- FCRA Class Actions and Class Issues
- FCRA Class Actions
- Special Evidentiary Issues: What is Evidence?
- Evidentiary Issues in FCRA Cases
- Expert Witnesses, Special Issues and Daubert and Related Challenges
- Appellate Issues, Rules, Law, Etc.
- Defenses Asserted by Industry and Abuse Stories
- Defense Counsel Abuses and War Stories
- Law Outlines: Various Topics
Who is online
Users browsing this forum: No registered users and 2 guests