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Nevada Supreme Court Reaffirms Limits On Emotional Distress Claims

A common motivator of many bad faith plaintiffs is anger.  The insured’s feelings are hurt because he or she feels that the claim was improperly handled.  Usually that anger translates into a cause of action for emotional distress.

Brain1 The Nevada Supreme Court reaffirmed its position regarding the level of proof necessary to successfully prosecute an emotional distress claim in the recent case of Betsinger v. D.R. Horton, 126 Nev. Adv. Op. 17, 232 P.3d 433, (May 27, 2010).  In that case, the Nevada Supreme Court said that to prevail on an emotional distress claim, a Plaintiff must demonstrate that the emotional distress resulted in a manifestation of physical injury.

In Betsinger, the plaintiff intended to buy a new house. He signed a contract on the understanding that he would get a low interest rate loan.  He put earnest money down and started the process of arranging to move.  As the closing date approached, plaintiff was told that he could not qualify for the lower interest rate.  He was offered a rate almost 2 points higher.  He refused the deal and when his earnest money was not returned, as he claims he was promised, he sued for fraud and deceptive trade practices.  Although he was able to persuade the jury that he was the victim of a bait and switch, he did not present any evidence of physical manifestation of emotional distress. He had not been to the doctor or a counselor and could not show he truly suffered emotional distress.

The judge allowed the emotional distress claim to go to the jury anyway and Plaintiff was awarded over $40,000 in damages.

Respondents appealed the award. They argued that the jury’s compensatory award relating to emotional distress damages must be reversed because Betsinger failed to demonstrate any physical manifestation of emotional distress.  The court agreed with respondents and reduced the verdict to actual damages suffered which was around $10,000.  The court also remanded the punitive damages award because of the substantial reduction in compensatory damages.

In reaching its decision, the court followed the precedent set in Barmettler v. Reno Air, Inc, 114 Nev. 441, 448, 956 P.2d 1382, 1387 (1998) where it said “[I]n cases where emotional distress damages are not secondary to physical injuries, but rather, precipitate physical symptoms, either a physical impact must have occurred or, in the absence of physical impact, proof of ‘serious emotional distress’ causing physical injury or illness must be presented.”. See also Chowdhry v. NLVH, Inc., 109 Nev. 478, 482-83, 851 P.2d 459, 462 (1993).

Therefore, unless one can prove a physical assault like in Olivero v. Lowe, 116 Nev. 395, 400, 995 P.2d 1023, 1026 (2000) (explaining that the physical manifestation requirement is more relaxed for damages claims involving assault), one cannot recover for emotional  distress unless there is proof of physical manifestation of injury.

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