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Mental anguish is typically not covered under
primary CGL policies because it is not included within the policy definition
of "bodily injury." However, despite the clear language of the policy, some
states include mental anguish within the standard Insurance Services Office,
Inc. (ISO), definition of bodily injury providing coverage for those damages.
by R. Steven
Rawls and Rebecca Appelbaum
Weihmuller Katz Craig, LLP
Additionally, excess and umbrella policies often define "bodily injury" differently
than primary policies and include "mental anguish, shock, humiliation, or mental
injury" within the definition of bodily injury. Some excess or umbrella policies
also include drop-down obligations where the primary policy does not provide
coverage, thus requiring the excess policy to provide primary coverage for mental
The standard ISO commercial general liability (CGL) policy form defines bodily
injury to mean "bodily injury, sickness, or disease sustained by a person, including
death resulting from any of these at any time."
The following are examples of excess policies' definitions of "bodily injury."
"Bodily Injury" means bodily injury, sickness, disease, disability, shock,
mental anguish, mental injury and humiliation, including resulting death.
injury to the body, sickness or disease, including death resulting
from any of these at any time, and if arising out of the foregoing,
mental anguish, mental injury, disability, shock or fright;
The majority of jurisdictions hold that the standard CGL definition of "bodily
injury" does not include purely emotional or mental injuries pursuant to the
plain, unambiguous policy language. However, a minority of jurisdictions hold
that a policy defining "bodily injury" as "bodily injury, sickness or disease"
provides coverage for purely emotional injury. These courts typically do so
either because they find ambiguity in the policy language or because they find
mental injury subsumed within the phrase "sickness or disease."
Mental anguish does not constitute "bodily injury." In National Casualty Company v. Great Southwest Fire
Insurance Company, 833 P.2d 741 (Colo. 1992), the Supreme Court of Colorado
explained that unambiguous policy provisions "must be given [their] plain and
ordinary meaning," and "mere disagreement of the parties does not establish
an ambiguity." Great Southwest at 744 and 746.
The court agreed with the majority view that the term "bodily injury" "covers
physical injury and does not include claims for purely nonphysical or emotional
Similarly, in Trinity Universal Insurance Co. v.
Cowan, 945 S.W.2d 819 (Tex. 1997), the Supreme Court of Texas explained
that "'bodily injury' ... does not include purely emotional injuries ... and
unambiguously requires an injury to the physical structure of the human body.
Our decision comports with the commonly understood meaning of ‘bodily,' which
implies a physical, and not purely mental, emotional, or spiritual harm." Cowan at 823.
"Bodily injury" encompasses mental anguish. In Alabama mental anguish is necessarily included within the terms "sickness"
and "disease" in the general liability policy definition of "bodily injury." American States Insurance Co. v. Cooper, 518
So. 2d 708, 710 (Ala. 1987) (citing Morrison Assurance
Co. v. North American Reinsurance Corp., 588 F. Supp. 1324, 1327 (N.D.
Ala. 1984)). Mental anguish is included within the ordinary meaning of sickness
because "one may experience "sickness" or "disease" without first experiencing
a physical touching." Lavanant v. General Accident Ins.
Co. of America, 561 N.Y.S.2d 164, 168 (N.Y. App. Div. 1990) (explaining
that the insurer could have written language requiring physical contact for
Courts in Louisiana have determined that the standard definition of "bodily
injury" is ambiguous. Because the definition is ambiguous, it is "reasonable
to find that ‘bodily injury' ... include[s] severe and debilitating mental pain
and anguish." Hill v. Shelter Mutual Ins. Co.,
935 So. 2d 691, 694 (La. 2006) (citation omitted); see alsoAllstate
Ins. Co. v. Biggerstaff, 703 F. Supp. 23 (D.S.C. 1989) (in insurance
parlance, "bodily injury" need not be manifested by physical loss and includes
In an Iowa case primarily discussing the impact rule (discussed below), the
court determined without much discussion that the underlying plaintiffs who
witnessed a fatal auto accident sustained "bodily injury" within the meaning
of the policy. The court in Pekin Insurance Co. v. Hugh,
501 N.W.2d 508 (Iowa 1993), explained that "the medical community now knows
that ‘every emotional disturbance has a physical aspect and every physical disturbance
has an emotional aspect.'" Hugh at 512 (citation
omitted). Thus, the policy definition of "bodily injury" provided coverage for
emotional distress but the Hugh court remanded
for a determination of the fact question which required medical or psychological
proof of whether the underlying plaintiffs actually suffered bodily injury.
Excess and umbrella policies typically define "bodily injury" to include
some, or all, of the following terms: humiliation, mental anguish, shock, or
mental injury. Thus, these policies provide coverage for solely emotional distress
The wrinkle is how coverage is triggered under the second-layer policy. Some
second-layer policies provide coverage in excess of the "retained limit" which
is defined to include the underlying policy limits. Some provide only indemnity
coverage, while others give the insurer the right to participate in the defense,
upon choosing to do so, if the loss could reach the policy (or once the underlying
policy limits are exhausted).
However, some excess policies contain the following, or similar, defense
We shall have the right and duty to defend any "Claim" or "Suit" seeking
damages covered by the terms and conditions of this policy when:
(b) Damages are sought for "Bodily Injury", "Property Damage", "Personal
Injury", or "Advertising Injury" which are not covered by "Underlying Insurance"
or other insurance.
This language requires the excess carrier to provide a defense for suits
seeking damages for bodily injury [defined to include mental anguish] when those
damages, as in the vast majority of jurisdictions, are not covered by the underlying
policy. Thus, in a suit solely seeking recovery for mental distress damages,
in all but a few jurisdictions, this language requires the excess or umbrella
insurer to drop down and provide a defense (presuming all other policy conditions
and requirements are met).
Although unrelated to whether the policy provides coverage for mental anguish
as "bodily injury," whether emotional distress damages are recoverable absent
physical injury in the first instance is a threshold liability issue.
The impact rule requires that "before a plaintiff can recover damages for
emotional distress caused by the negligence of another, the emotional distress
suffered must flow from physical injuries the plaintiff sustained in an impact." Southern Baptist Hosp. of Fla. v. Welker, 908
So. 2d 317 (Fla. 2005) (citations omitted). Thus, there is "no cognizable cause
of action for simple negligence resulting in psychological trauma, alone, unless
the case fits within one of the narrow exceptions to the impact rule." Rowell v. Holt, 850 So. 2d 474, 478, n.1 (Fla.
2003) (citations omitted). See also Parker v. Brush Wellman, Inc., 377 F. Supp. 1290 (N.D. Ga. 2005) (Georgia's
impact rule requires a physical impact on the person which causes physical injury
which in turn is the cause of the emotional distress).
Jurisdictions that adhere to the impact rule recognize exceptions to allow
recovery for purely mental anguish in certain circumstances including when a
defendant's conduct infringes on a plaintiff's legally protected interest, Rathgeber v. James Hemenway, Inc., 69 P.3d 710
(Or. 2003), when "malicious, willful or wanton" conduct is proved, Hang v. Wages & Sons Funeral Home, Inc., 585
S.E.2d 118, 120 (Ga. App. 2003), mishandling of a corpse, Brown v. Matthews Mortuary, Inc., 801 P.2d 37
(Idaho 1990), and bad faith claims against a health insurer, Time Insurance Co., Inc. v. Burger, 712 So. 2d
389 (Fla. 1998).
Thus, even when an insurer is legally obligated to pay damages for mental
anguish, they must first be recoverable against the insured in the underlying
tort suit. Some jurisdictions, however, have completely abrogated the impact
rule. See e.g., Dziokonski v. Babineau, 380 N.E.2d 1295 (Mass. 1978) (rejecting the impact
rule in Massachusetts); Williams v. Baker, 572
A.2d 1062 (D.C. 1990).
Most jurisdictions hold that the standard CGL policy definition of "bodily
injury" does not include coverage for emotional distress without accompanying
physical injury. However, a minority of states construe the definition to include
mental anguish either by finding the policy to be ambiguous or finding that
"sickness or disease" encompasses mental injury. Although there are exceptions,
many jurisdictions require physical injury in order for liability to attach
for emotional distress damages.
Thus, in evaluating a claim for emotional distress damages from an excess
policy perspective, it is important to determine whether the jurisdiction interprets
the liability policy definition of "bodily injury" to include mental injury,
whether the language of the excess policy imposes a drop-down defense obligation
for damages which are not covered by underlying insurance, and whether the applicable
law requires physical impact to find liability for emotional distress.
Rebecca C. Appelbaum is a senior associate
with Butler Pappas Weihmuller Katz Craig, LLP, practicing in the area of third-party
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