Bystander Claims—One Limit or Two?

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 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 N.W.2d 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 S.C. 143, 533 S.E.2d 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 (M.D. 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 N.E.2d 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 N.W.2d 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 N.E.2d 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 P.2d 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 (S.D. 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 N.W.2d 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 S.2d 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 P.2d 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.