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09/21/90 DELORIS M. SAUNDERS v. MASSOUD NEMATI

DISTRICT OF COLUMBIA COURT OF APPEALS


September 21, 1990

DELORIS M. SAUNDERS, APPELLANT
v.
MASSOUD NEMATI, APPELLEE

Appeal from the Superior Court of the District of Columbia; Hon. Ronald P. Wertheim, Trial Judge

Steadman and Farrell, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Steadman

Appellant Saunders filed a complaint against appellee Dr. Nemati alleging in essence that appellee used "extremely outrageous and abusive language to plaintiff which was calculated to and did cause laintiff extreme emotional distress." *fn1 The only issue presented on this appeal is whether the count of intentional infliction of emotional distress *fn2 was properly dismissed for failure to bring the action within the period required by our statute of limitations, D.C. Code § 12-301 (1989). The complaint was filed approximately fifteen months after the last of the acts complained of. We reverse.

A

The specific issue before us is whether a cause of action for intentional infliction of emotional distress is governed by the one-year limitation "for libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment," D.C. Code § 12-301(4), or by the general three-year residuary provision applicable to causes of action "for which a limitation is not otherwise specially prescribed." Id. § 301(8).

The traditional common law refused all remedy for mental distress unless it could be brought within the scope of some already recognized tort. "f some independent tort, such as assault, battery, false imprisonment, or seduction could be made out, the cause of action served as a peg upon which to hang the mental damages and recovery was freely permitted." W. KEETON, D. DOBBS, R. KEETON, D. OWEN, PROSSER AND KEETON ON THE LAW OF TORTS § 12, at 57 (5th ed. 1984) (footnotes omitted). However, "somewhere around 1930, it began to be recognized that the intentional infliction of mental disturbance by extreme and outrageous conduct constituted a cause of action in itself." Id. at 60. The independent existence of such a tort is now well established, both in the District, see Clark v. Associated Retail Credit Men, 70 App. D.C. 183, 186, 105 F.2d 62, 65 (1939); Waldon v. Covington, 415 A.2d 1070, 1076 (D.C. 1980) (tracing history); see also Williams v. Baker, 572 A.2d 1062, 1064 (D.C. 1990) (en banc) (negligent infliction of emotional distress), and in American jurisprudence generally. See RESTATEMENT (SECOND) OF TORTS § 46 (1965). Therefore, by an ordinary plain reading of our statute of limitations, this distinct cause of action is not included in section 12-301(4) or any other particularized subsection and therefore falls within the residuary subsection (8).

Nonetheless, the principal assertion on appeal is that in actions for intentional infliction of emotional distress, the applicable statute of limitations is properly determined by the nature of the underlying acts. Here, it is said, the claim is best characterized as one for assault and hence subject to the one-year statute of limitations.

B

It is well settled that in a determination of the applicable statute of limitations, the plaintiff's characterization of the claim is not controlling. Thus, in Morfessis v. Baum, 108 U.S. App. D.C. 303, 281 F.2d 938 (1960), the court looked to the substantive elements of the alleged cause of action and concluded that the complaint stated a case of malicious prosecution, which was barred by the one-year statute of limitations, rather than abuse of process, despite the contrary assertion in the complainant's caption. "The action thus pleaded cannot . . . be removed from its place in the law of torts by calling what occurred also an abuse of process." Id. at 305, 281 F.2d at 940. Accord, Maddox v. Bano, 422 A.2d 763, 765 (D.C. 1980) (complaint held to plead "in substance a cause of action for assault, battery, false arrest" and not negligence despite complaint's use of negligence label); Kelton v. District of Columbia, 413 A.2d 919, 922 (D.C. 1980) (complaint alleged battery and negligence, but "elements of alleged offense" set forth only battery).

At times, indeed perhaps frequently, as the early history of the development of the tort discussed above indicates, damages for emotional distress will in substance simply be an element of some other cause of action. Thus, in certain cases where intentional infliction of emotional distress was included among a number of alleged torts, the one-year statute of limitation has been applied where the nature of the action rested on the other torts and the emotional distress aspect of the claim was essentially an outgrowth of the other pleaded torts. This appears to have been the situation in Hanoch Tel-Oren v. Libyan Arab Republic, 517 F. Supp. 542 (D.D.C. 1981), aff'd on other grounds, 233 U.S. App. D.C. 384, 726 F.2d 774 (1984), cert. denied, 470 U.S. 1003, 105 S. Ct. 1354, 84 L. Ed. 2d 377 (1985), the case cited by the trial court in its brief order of dismissal. That action arose out of an alleged terrorist attack on a bus in Israel, in which twenty-nine people died. The plaintiffs were certain individuals injured in the attack and the personal representatives of the twenty-nine persons killed in the attack. The plaintiffs alleged the torts of "assault, battery, false imprisonment, intentional infliction of emotional distress and/or intentional infliction of cruel, inhuman and degrading treatment." Id. at 550. The court granted the motion to dismiss on all counts, stating that "learly, the torts alleged . . . are dependents of the same personal interests infringed by the intentional torts that would be subject in the District of Columbia to the one year limitation period." Id. A similar analysis may be applied to two other cases cited by appellee: Thomas v. News World Communications, 681 F. Supp. 55, 73 (D.D.C. 1988) (plaintiffs' claim for emotional distress "is thus completely dependent upon and 'intertwined' with their claims for libel, defamation, and assault and/or battery"), and de la Croix de Lafayette v. de la Croix de Lafayette, 117 Daily Wash. L. Rptr. 2133, 2138 (D.C. Super. Ct. Aug. 14, 1989) (the "underlying tort of plaintiff's claim for intentional infliction of emotional distress is an assault and battery"). *fn3 Conversely, in Burda v. National Association of Postal Supervisors, 592 F. Supp. 273 (D.D.C. 1984), aff'd, 248 U.S. App. D.C. 415, 771 F.2d 1555 (1985), where the plaintiff sought damages for fraud, conspiracy, tortious interference with a contractual relationship, and intentional infliction of emotional distress (as well as for certain constitutional violations), the court applied a three-year statute of limitations, rather than the claimed one-year period, to the emotional distress tort because the claim "is intertwined with claims which fall within the three-year limitation." Id. at 281. Accord, Rochon v. FBI, 691 F. Supp. 1548, 1562 and n.19 (D.D.C. 1988).

The situation is different in the case before us. We deal with a dismissal of the action and therefore look only to the allegations of the complaint. *fn4 We apply the familiar doctrine that "the complaint must be construed in the light more favorable to the plaintiff and its allegations taken as true." McBryde v. Amoco Oil Co., 404 A.2d 200, 202 (D.C. 1979) (per curiam). *fn5 So viewed, the claim of intentional infliction of emotional distress is pled as a clear and distinct tort stemming from the verbal abuse by the defendant, with the alleged harm set forth as the "extreme emotional, psychological and physical distress and discomfort" suffered by the plaintiff. *fn6 The only other count contained in the complaint, Count I, involved medical malpractice, based upon the delay in rendering care and verbal abuse by appellee. Medical malpractice is not a distinct cause of action for statute of limitations purposes, but instead depends upon the underlying acts. See Canterbury v. Spence, 150 U.S. App. D.C. 263, 284, 464 F.2d 772, 793, cert. denied, 409 U.S. 1064, 93 S. Ct. 560, 34 L. Ed. 2d 518 (1972). Consequently, the verbal abuse would be subsumed within the acts constituting intentional infliction of emotional distress and governed by the same limitations period and the negligence element governed by the residuary three-year statute of limitation period. *fn7 Thus, on the face of the complaint here, there were no other causes of action with distinct limitation periods so as arguably to constrict the time period otherwise applicable to an action for intentional infliction of emotional distress.

C

It is asserted, however, that even if the count of intentional infliction of emotional distress is viewed in isolation, the one-year statute of limitations in section 12-301(4) should be read to encompass all intentional torts *fn8 or, at least, an intentional tort as closely related to an enumerated tort as the intentional infliction of emotional distress alleged here is to the enumerated tort of assault.

The first argument sweeps too broadly. It is true that the relevant language of our current statute of limitations can be traced back at least to 1901, *fn9 Act of March 3, 1901, ch. 854, § 1265, 31 Stat. 1189, 1389, at which time no independent tort of intentional infliction of emotional distress was recognized. However, even at that time, not all recognized intentional torts were subject to a one-year limitation. For instance, actions for injury to reality or personality or for recovery of personal property expressly bore a three-year limit, id., as they do to this day. D.C. Code § 12-301(2), (3). In Morfessis, supra, it was assumed that the tort of abuse of process was governed by the three-year residuary provision, rather than the one-year provision of section 12-301(4). 108 U.S. App. D.C. at 304, 281 F.2d at 939. Nor have section 12-301(4) or its predecessors ever been applied to the intentional torts of fraud, interference with contractual relations, and the various torts to family relations, such as alienation of affections and seduction, all of which existed prior to 1901. See Interdonato v. Interdonato, 521 A.2d 1124, 1136 (D.C. 1987) (applying three-year residuary clause to fraud claim); RESTATEMENT (SECOND) OF TORTS § 766 comment c, at 8-9 (tracing tort of intentional interference with contractual relations to a British case of 1853); 2 F. HARPER, F. JAMES, O. GRAY, THE LAW OF TORTS § 8.1 at 500 (2d ed. 1986) (tracing torts to family relations back to seventeenth century). The courts have also understood the three-year residuary provision to apply to constitutional torts alleged under 42 U.S.C. section 1983, which was enacted in 1871. Hobson v. Wilson, 237 U.S. App. D.C. 219, 250, 737 F.2d 1, 32 (1984), cert. denied, 470 U.S. 1084, 105 S. Ct. 1843, 85 L. Ed. 2d 142 (1985); Act of Apr. 20, 1871, ch. 22, § 1, 17 Stat. 13 (original enactment of 42 U.S.C. section 1983). Had the legislature intended to provide a one-year limitation for all intentional torts or a generic subcategory, it presumably would have said so in so many words.

Appellee argues, however, that a claim based on verbal abuse, as here, can fairly be characterized as sufficiently close to the enumerated tort of assault as to make applicable the one-year limitation of section 12-301(4). We think the contrary and agree with the court's analysis in Robinson v. Vitro Corp., 620 F. Supp. 1066 (D. Md. 1985). There, the court rejected such an argument under the Maryland statute very similar to our own. *fn10 As the court observed,

he tort of assault is designed to protect a person's interests to be free from apprehension of intentional physical contact.

On the other hand, the tort of intentional infliction of emotional distress was recognized to protect persons from any extreme and outrageous conduct calculated to cause serious mental distress. The interests being protected are thus distinct.

Id. at 1072. This same analysis, as a matter of general American jurisprudence, is reflected in the Restatement (Second) of Torts, which distinguishes "the interest in freedom from apprehension of a harmful or offensive contact," id. § 21, at 38, protected by the tort of assault, from "the interest in freedom from emotional distress," id. § 46, at 72, protected by the tort of intentional infliction of emotional distress. Thus, "ords do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person." Id. § 31, at 47. Cf. Person v. Children's Hospital Nat'l Medical Center, 562 A.2d 648, 650 (D.C. 1989).

As indicated above, the distinct tort of intentional infliction of emotional distress has been in existence for a half-century or more. During this period, the statute of limitations provision has not gone unnoticed. In 1963, titles 11-17 of the then unofficial District of Columbia Code were enacted by Congress into positive law, Act of Dec. 23, 1963, Pub. L. No. 88-241, 77 Stat. 478, at which time the wording and structure of the statute of limitations provision, although not its substance, were considerably altered. Id., 77 Stat. at 510. Subsequently, our legislature has seen fit to add limitations for specific causes of action and to exempt the District from the statutory provision, but without making any changes in the subsections at issue here. *fn11 It has been said that where there is doubt as to which period of time should apply, the longer period is to be preferred. See 51 AM. JUR. 2D Limitation of Actions § 863, at 641-42 (1970), and cases cited. This would seem particularly warranted here, given the emphasis in the residuary provision of subsection (8) that a three-year limitation period shall apply where a limitation period "is not otherwise specially prescribed" (emphasis added).

In sum, we see no basis for deviating from the well established principle that the plain language of a statute normally controls. We therefore hold that an independent action for intentional infliction of emotional distress, not intertwined with any of the causes of action for which a period of limitation is specifically provided in the other provisions of section 12-301, is governed by the general residuary three-year limitation of section 12-301(8). Accordingly, the order dismissing appellant's complaint against appellee insofar as it applies to the count of intentional infliction of emotional distress as pled in the complaint must be Reversed.


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