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View Case Details
 
Wanda G. Kamrath Respondent
vs.
Suburban National Bank Appellant
 
Case:
No. C8-84-1308
 
Location:
Court of Appeals of Minnesota
 
Date:
February 19, 1985
 
Headnotes:
1. The trial court did not err in refusing to submit to the jury the question of whether the bank acted as an agent of the police in requesting its employee to take a polygraph test.
2. The trial court did not err in refusing to instruct the jury on the elements of intentional infliction of emotional distress.
3. The trial court did not err in refusing to grant remittitur.
4. The trial court did not err in assessing Counsel's fees.
 
Attorneys:
Nichols Kruger Starks & Carruthers Minneapolis Minnesota
James T. Martin Minneapolis Minnesota
 
Court:
Wozniak, Presiding Justice. Parker, Justice and Huspeni, Justice.
 
Author:
The Hon. Justice Huspeni
 

This is an appeal from a jury verdict determining that appellant Suburban National Bank (Suburban) through its agent Al Lyng asked its employee respondent Wanda Lind Kamrath (Kamrath) to take a polygraph test in violation of Minn. Stat. SEC.181.75 (1984). The jury found Kamrath was entitled to $60 000 in damages. Court determined Suburban should pay $30 000 in Counsel's fees and denied its motion for judgment notwithstanding the verdict new trial or remittitur. We affirm.

FACTS

Kamrath was employed by Suburban as a teller. In December 1976 several deposits from the local McDonald's restaurant were missing. The Eden Prairie police department in cooperation with McDonald's corporation decided to request a polygraph test of several McDonald's employees. Two bank tellers were also tested although the tellers were not considered suspects. Kamrath was one of those tellers. She testified that Al Lyng a bank vice-president asked her to take the test informing her she could refuse. Lyng does not remember asking her and testified that he did not know about the tests until after they occurred. Sergeant Les Bridger of the Eden Prairie police department who conducted the criminal investigation testified that he must have made the request although he does not remember doing so.

Several days after Kamrath took the test she began to have nightmares about the examination. In the nightmares which lasted for approximately sixteen months the polygraph test chair turned into an electric chair and ended with Kamrath's wetting the bed. Her family testified she became more withdrawn gained weight and was very tired. She did not seek any Counseling or medical treatment.

At the request of Kamrath's Counsel Dr. John Curran a psychiatrist met with Kamrath three times in late 1983 and early 1984. Dr. Curran testified that he was initially skeptical that a polygraph test could have such a strong effect on anyone. However after meeting Kamrath he decided she suffers from post-traumatic stress syndrome. Dr. David Lykken a professor of psychiatry and psychology testified that someone with Kamrath's structured religious socialization with a strong moral code emphasizing honesty could react more strongly than an average individual. To Kamrath the mere request of a test was an accusation of dishonesty. The polygraph examiner pressured her to reveal any acts of dishonesty in her life. As a child Kamrath had stolen change from her father which she had never admitted to anyone and refused to tell the examiner.

At the first interview with Dr. Curran Kamrath was still very embarrassed to talk about her nightmares. She testified that Lyng told her at the time of the test request that the matter was confidential. Dr. Curran noted that as a result Kamrath did not talk to many people about the test thus denying herself the comfort of letting out her feelings and being assured that anyone would be upset in that situation. Dr. Curran concluded Kamrath has a 15% permanent emotional disability based on (1) her emotional inability to work at any job involving handling money and (2) her increased dependence on her husband resulting from her inability to express her feelings and develop close relationships with others.

After trial the jury found that the bank made the test request that this conduct directly resulted in damages to Kamrath and that $60 000 would fairly compensate her. The trial Court later determined that reasonable Counsel's fees for Kamrath's Counsel were $30,000. Court denied Suburban's motions for judgment notwithstanding the verdict a new trial or remittitur.

Kamrath has requested permission to file a reply to Suburban's reply brief.

ISSUES

1. Did the trial court err by refusing to submit to the jury the question of whether the bank acted as an agent of the police in requesting the polygraph or by refusing to grant a new trial or j.n.o.v. on those grounds?

2. Did the trial court err in refusing to instruct the jury on the elements of intentional infliction of emotional distress?

3. Did the trial court err in failing to grant remittitur?

4. Was the trial court's assessment of $30 000 in Counsel's fees clearly erroneous?

ANALYSIS

1. Minn. Stat. SEC. 181.75 subd. 1 (1984) states that:

No employer or agent thereof shall directly or indirectly solicit or require a polygraph voice stress analysis or any test purporting to test the honesty of any employee or prospective employee.

Suburban argues that if it asked Kamrath to take the test it did so only as the agent of the Eden Prairie police. The bank suggests this should be an exception to the statute.

The trial court refused to submit the agency issue to the jury or grant a j.n.o.v. because the evidence at trial did not support that theory. Implicit in and essential to the agency theory is an admission that the bank did make the request. Both Lyng and the president of the bank Roy Terwilliger testified that they did not know of the tests until after they occurred. The jury heard Sgt. Bridger's testimony that he set up the exams and must have made the request. He testified that to the best of his knowledge no one else made a request. The jury apparently believed Lyng made an additional request independent of the police.

The statute formerly read "shall by direct or indirect coercion request or require." Minn. Stat. SEC.181.75 (1974) (amended in 1976). In eliminating the word coercion from the statute the legislature broadened its effect. State v. Century Camera 309 N.W.2d 735 (Minn. 1981). In Century Camera Court noted that "an element of coercion is nevertheless implicit in the statute as it now reads because of the unequal position of an employee vis-a-vis an employer." Id. at 741. Court found a substantial state interest in prohibiting the requests. Among the stated concerns were encouraging a harmonious atmosphere in employer-employee relations protecting employees' expectations of privacy discouraging practices which may demean an individual's dignity protect employees from adverse inferences should they refuse the test and avoid "the coercive impact present in the solicitation." Id. at 743. It seems clear that the legislature meant to prohibit any requests from the employer on behalf of anyone to take a polygraph test because the employee will inevitably feel coerced.

Suburban also questions Court's instruction which failed to define "solicit." Court used the exact words of the statute. Further definition might not be accurate. Suburban's desired definitions of "beseech" and "ask earnestly" are more forceful terms. The legislative amendment dropping the word coercive as a modifier of request indicates a broader interpretation.

2. The trial court refused to submit the elements of intentional infliction of emotional distress as set forth in Hubbard v. UPI 330 N.W.2d 428 (Minn. 1983) or to grant a new trial on that ground. Suburban argues that without a physical injury Kamrath must meet the requirements of Hubbard to recover. In a well-written memorandum the trial court properly determined that Hubbard applies only to those cases where there is no independent underlying tort or cause of action.

Traditionally a plaintiff is not entitled to damages for mental distress without a physical injury unless there is some conduct constituting a direct invasion of her rights such as slander libel malicious prosecution willful wanton or malicious misconduct. State Farm Mutual Auto Insurance Co. v. Village of Isle 265 Minn. 360 367 368 122 N.W.2d 36 41 (1963). Hubbard recognizes the independent tort of intentional infliction of emotional distress and adopts elements intended to ensure that a tort actually occurred and that injury was intentionally inflicted. Hubbard 330 N.W.2d at 438 citing State Farm.

Here there is an underlying cause of action a violation of Minn. Stat. SEC. 181.75 subd. 1. The statute prohibits acts of the same character as those listed in State Farm. Any violation may result in a "civil action to recover any and all damages recoverable at law." Minn. Stat. SEC.181.75 subd. 4. As with the torts enumerated in State Farm harm of the type Kamrath suffered based in emotional distress flows naturally from the act constituting the underlying tort.

3. The jury as fact-finder determined Kamrath suffered $60,000 in damages. The Court refused to grant remittitur stating that the uncontradicted medical evidence indicated Kamrath suffered from post-traumatic stress syndrome with a permanent emotional disability.

The question of whether a jury award is excessive is resolved on the facts of each case. Sorenson v. Kruse 293 N.W.2d 56 63 (Minn. 1980). The trial court's judgment regarding remittitur is entitled to great deference when Court carefully examines the verdict and explains its decision. Id. at 62. If these requirements are met the trial court's determination will be reversed only where there is a clear abuse of discretion. Nelson v. Nelson 283 N.W.2d 375 379 (Minn. 1979).

There is sufficient evidence to support the verdict. Kamrath's Counsel did a commendable job of portraying her structured upbringing and convincing the jury that Kamrath could react this strongly to the test even if other people might not. Appellant did not produce any medical evidence to contradict Dr. Curran.

4. The statute allows plaintiffs to recover:

any and all damages recoverable at law together with costs and disbursements including costs of investigation and reasonable Counsel's fees and receive other equitable relief as determined by Court.

Minn. Stat. SEC.181.75 subd. 4. Kamrath's Counsel requested $147 000 in fees. The trial court granted $30 000 having considered the factors enunciated in City of Minnetonka v. Carlson 298 N.W.2d 763 766 767 (Minn. 1980) as well as the trial court's own sense of what was fair under the circumstances.

This court has said:

The reasonableness of Counsel's fees "is a fact to be determined by the evidence submitted the facts disclosed by the record of the proceedings and the court's own knowledge of the case." State v. Paulson 290 Minn. 371 373 188 N.W.2d 424 426 (1971). A trial court's findings on the issue of Counsel's fees should be upheld unless clearly erroneous.

Katz and Lange Ltd. v. Beugen 356 N.W.2d 733 735 (Minn. Ct. App. 1984).

The provision for Counsel's fees in section 181.75 indicates this is a private Counsel general statute. See Minn. Stat. SEC.8.31 subds. 1 and 3a (1982). Therefore there are additional appropriate considerations in fee decisions such as eliminating financial barriers to vindicating a plaintiff's rights and the extent to which the public interest is advanced by the suit. Liess v. Lindemyer 354 N.W.2d 556 558 (Minn. Ct. App. 1984). As discussed above the legislature and the supreme court have shown a strong public interest in barring employer requests for polygraphs from employees.

The trial Court closely scrutinized the fee request and reduced it. His finding is supported by the many documents submitted by respondent's Counsel. Given the trial court's close involvement with the trial the superior position of the trial court in evaluating the necessary work and the discretion granted to the Court because of these factors the decision is not clearly erroneous.

DECISION

Kamrath's request to file a reply to Suburban's reply brief is denied. The trial court is affirmed in all respects.

Affirmed.