Bystander Claims—One Limit or Two?
January 2005
It is not uncommon in an automobile accident
for there to be severe bodily injuries to one or more occupants while other
occupants of the same vehicle walk away with minor scratches or bruises. In
that situation, the uninjured occupants may have a claim for emotional distress
and trauma from witnessing the injuries to the other passengers. These types
of claims are known as "bystander" claims or "zone of danger" claims.
by R. Brent
Cooper and Dana Harbin
Cooper & Scully
The questions most automobile insurers must answer when adjusting these types
of claims are two-fold: (1) Is pure emotional distress without physical injury
considered "bodily injury," and (2) if so, is the bystander claim subject to
its own "each person" limit or does the claim fall within the "each person"
claim applicable to the injured party.
The courts are split on whether psychological/emotional injuries are considered
"bodily injury." However, those that find for bodily injury, usually find a
separate limit applicable to that claim. Those courts that find that the bystander
claim is not bodily injury hold that the bystander claim falls within the "each
person" limit applicable to the party that actually suffered the bodily injury.
The answer, according to the courts, lies in the policy language.
New York Court Finds Coverage
Recently, a New York court held that a zone of danger claim is "bodily injury,"
but did not explicitly conclude that two separate "each person" limits would
be applicable. In State Farm Mutual Automobile Insurance
Co. v Glinbizzi, 780 NYS 2d 434 (2004), the insured struck and killed
a pedestrian who was walking with his son. The deceased pedestrian's son sued
the insured for negligent infliction of emotional distress under a zone of danger
theory, seeking recovery for psychological injuries caused by witnessing the
accident and his father's resulting death.
State Farm issued the liability policy to the driver, which defined "bodily
injury" to mean "bodily injury to a person and sickness, disease or death which
results from it." The court reasoned that this provision may be interpreted
by the average insured in two different ways: (1) it could mean that the sickness,
disease, or death must inure to the same person who suffered the bodily injury,
or (2) it could mean that any sickness, disease, or death to any person is covered
if it results from bodily injury to the same or a different person. In this
case, the son suffered mental distress and emotional injuries from the bodily
injury to his father, a situation falling under the second interpretation. The
court found the terms ambiguous and construed it in favor of coverage.
The court found additional support for its conclusion that the definition
of "bodily injury" was ambiguous in the policy's "limits of liability" section,
which stated that "bodily injury to one person includes all injury and damages to others resulting from this bodily injury." Id. at 436 (emphasis added). This language,
in the court's view, "anticipates the injury to others will be covered when
only one person is physically injured, implicitly including zone-of-danger injuries." Id.
Connecticut Chimes In
Also in 2004, the Connecticut Supreme Court addressed whether the "each person"
coverage limit of the uninsured motorist (UM) coverage applicable to the bodily
injuries to the injured party also applies to another party's claim for bystander
emotional distress. In Galgano v Metropolitan Property
and Casualty Insurance Co., 267 Conn 512, 838 A2d 993 (2004), an insured
motorcycle driver brought action against insurers to recover UM benefits for
emotional distress from witnessing injury to his son. Patriot General paid the
$20,000 each-person UM coverage limit applicable for bodily injury to the plaintiff's
son. The insurance policy provided that the maximum amount the insurer must
pay "for all claims by all persons for damages for bodily injury to any one
person is the ‘each person' Uninsured Motorist Coverage limit."
The question presented was whether the father was entitled to compensation
for bystander emotional distress arising from witnessing the bodily injury to
his son under a separate "each-person" UM coverage limit available to the plaintiff
father. In other words, was the father's bystander claim a separate claim from
the son's bodily injury claim?
Patriot General contended that the father's bystander emotional distress
was a consequence of the bodily injury to his son and not a bodily injury in
itself that would allow coverage under a separate "each person" limit. Additionally,
Patriot General claimed that because the claim for bystander emotional distress
was a derivative claim, the prior settlement with the plaintiff's son and the
son's absence from this litigation precluded the plaintiff from recovering for
his bystander emotional distress. The plaintiff argued that all of his injuries,
both physical and emotional, from whatever source, should be covered by a separate
"each-person" limit applicable only to him, and not to his son.
The court held that resolution of the issue was not dependent on whether
the father's claim is derivative of the son's claim, but instead on the actual
policy language. The court began with analysis of the pertinent provision of
the Patriot General policy, which provided:
- The maximum amount we'll pay for any one motorcycle accident for all claims by
all persons for damages for bodily injury to any one person is the "each
person" Uninsured Motorist Coverage limit shown in the declarations. Subject
to the limit for "each person" the maximum we'll pay in damages for bodily
injury to two or more persons, is the "each accident" Uninsured Motorist
Coverage limits shown in the declarations." Id. at 997 (emphasis in the original).
The court reasoned that by the express terms of the policy, the bodily injury
to the plaintiff's son includes all claims by all persons for damages resulting from the bodily injury to the plaintiff's
son. It is beyond dispute that, but for the bodily injury to his son, the plaintiff
would not have suffered any emotional injuries. In other words, the plaintiff's
injuries are the natural and probable consequence of his having witnessed the
accident that injured his son.
Also, the court noted its previous holding, within the context of a liability
insurance policy, that "bodily injury ... does
not include emotional distress unaccompanied by physical harm." Id. at 999 citing Moore v Continental Casualty Co., 252 Conn 405,
411-12, 746 A2d 1252 (2000) (emphasis added). Therefore, the court concluded
that because emotional distress, by itself, is not a bodily injury, it can be
compensable only if it flows from the bodily injury of another person. In other
words, in view of the fact that the plaintiff's bystander emotional distress
claim arises because of the bodily injury to his son, under the language of
the Patriot General insurance policy, which groups all claims by all persons
because of bodily injury to another person under the limit applicable to that
other person, the claim here for emotional injury must fall under that limit.
The court held that the measure of the plaintiff's recovery is not governed
by the fact that his separate damages arose out of the same accident, but by
the fact that they arose out of the same bodily injury to his son, rendering
only a single "each person" limit applicable to both the son's claims for bodily
injury and the father's bystander claims.
Other Courts Go Both Ways
Other courts have taken the same approach as Connecticut. See:
-
Mullen v Walczak, 262 Wis 2d 708, 718,
664 NW2d 76 (2003) (because the plaintiff's emotional injuries arose out
of his wife's physical injuries in a motorcycle accident, his claims were
compensable only out of her "each person"
limit)
-
Stewart v State Farm Mutual Automobile Insurance
Co., 341 SC 143, 533 SE2d 597 (2000) (definition of "bodily injury"
to include sickness, disease, or death which results from it could not be
inserted in toto into the insuring agreement requiring the automobile insurer
to pay damages which the insured became legally liable to pay because of
bodily injury to others; the policy thus did not provide a separate "per
person" limit for a spouse's damages and loss of consortium from injury
to the accident victim)
-
Allstate Insurance Co. v Clohessy, 32
F Supp 2d 1333, 1336 (MD Fla 1998) (noting that, in context of insurance
coverage, majority of jurisdictions that have considered issue have held
that bodily injury encompasses only physical harm), question certified for
advice, 199 F3d 1293, 1295 (11th Cir 2000)
-
McNeill v Metropolitan Property & Liability Insurance
Co., 420 Mass 587, 590, 650 NE2d 793 (1995) (concluding that physical
ailments arising from emotional distress "do not warrant a separate 'per
person' limit ... because emotional distress is not a bodily injury")
-
Farm Bureau Insurance Co. of Nebraska v Martinsen,
265 Neb 770, 777, 659 NW2d 823 (2003) (concluding that bystander emotional
distress "is a byproduct of and entirely dependent upon the bodily injury
to [another person]," and is subject to the "per person" coverage limit
applicable to that person)
-
Bowman v Holcomb, 83 Ohio App 3d 216,
220, 614 NE2d 838 (1992) (concluding that "each person" coverage limit applied
because emotional distress is not bodily injury)
-
United Pacific Insurance Co. v Edgecomb,
41 Wash App 741, 744, 706 P2d 233 (1985) (concluding that insurance policy
"limit[s] the obligation to pay [emotional distress] damages that are derivative
or consequential from the injuries to one person to the limits of the policy
for injury to that person")
There are courts in other jurisdictions that have reached a contrary result.
Those courts have done so based on their determination that bystander emotional
distress is itself a bodily injury. See:
-
Allstate Insurance Co. v Tozer, 298 F
Supp 2d 765 (SD Ind 2003) (Indiana law) (emotional distress claims brought
by automobile passengers who witnessed brother sustain fatal injuries in
automobile accident constituted distinct "bodily injury claims," and therefore
were not subject to automobile insurance policy's "each person" limit of
liability for the wrongful death of brother, where both passengers were
involved in the accident which led to brother's death and suffered a physical
impact)
-
Pekin Insurance Co. v Hugh, 501 NW2d 508,
512 (Iowa 1993) (concluding that emotional distress is bodily injury, and
therefore compensable to extent of remaining "per occurrence" coverage limits)
-
Crabtree v State Farm Insurance Co., 632
S2d 736, 745 (La 1994) (concluding that insurance policy definition of bodily
injury "includes severe and debilitating mental pain and anguish")
-
Treichel v State Farm Mutual Automobile Insurance
Co., 280 Mont 443, 449, 930 P2d 661 (1997) (concluding that "each
person" coverage limit did not apply to emotional distress when insurance
policy did not expressly define bodily injury but allowed recovery for other
nonphysical injuries, such as loss of consortium)
Conclusion
Though the jurisdictions are split, the courts' consensus is clear. The answer
to whether a separate "each-person" limit applies to a bystander claim depends
on the determination of whether pure psychological/emotional type injuries are
considered to be "bodily injury" as those terms are defined by the automobile
policies, a decision that is subject to each jurisdiction's own contractual
interpretation of the policy language.
Dana Harbin is an attorney in the Dallas office of Cooper & Scully, P.C. where she specializes
in insurance coverage and bad faith involving all types of insurance policies,
both first and third party. Ms. Harbin earned her BA degree from the University
of Texas in Arlington and her JD degree from the University of Texas at Austin.
She can be reached at dana.harbin@cooperscully.com.
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