Panel: Emotional Distress Is Distinct Bodily Injury (The Legal Intelligencer)September 27, 2011
Auto Insurance Should Provide Coverage Even Without Physical Harm
By: Gina Passarella
The Legal Intelligencer
The Pennsylvania Superior Court has ruled emotional distress from witnessing a family member killed by a car is a distinct bodily injury covered by an automobile insurance policy. The court ruled it fell under the policy definition of "bodily injury," even though there was no physical injury.
The split three-judge panel also ruled that the two brothers and the father of the victim each had their own bodily injury claim for a potential maximum of $100,000 rather than having a single claim based on victim Benjamin Lipsky's injuries.
The panel in Lipsky v. State Farm Mutual Automobile Insurance Co. upheld a Philadelphia trial court's ruling that the definition of "bodily injury" in State Farm's policy agreement was ambiguous enough to allow for negligent infliction of emotional distress (NIED) to be included as a bodily injury, but the court did so on slightly different grounds.
The Superior Court has found the definition isn't ambiguous, but rather is simply broad enough to include emotional harm without physical injury, according to the memorandum opinion written by President Judge Correale F. Stevens.
As to the second issue of individual claims, the judges said in the opinion that "nothing in the language of the State Farm policy departs from the common law understanding that the injury contemplated in such a NIED claim results not from the bodily injuries suffered by the accident victim but from the claimant's witnessing the accident from nearby."
That provides for Benjamin's brothers, Daniel and Elie, and his father, Martin, to recover individual claims of $100,000 up to the policy limit of $300,000 per accident. Benjamin's estate had already settled the wrongful death and survival action for $100,000. But because Daniel and Elie Lipsky had stipulated damages of $35,000 each and Martin had stipulated damages of $100,000, their claims would fall under the policy limit of Elvita White.
White was the policyholder of the car driven by her husband, Joseph, who was intoxicated Oct. 7, 2006, when he struck and killed 17-year-old Benjamin Lipsky in the presence of his father and two brothers as they walked home from holiday services at their synagogue, according to the opinion.
State Farm's policy as to liability coverage for White said the company would "'pay damages which an insured becomes legally liable to pay because of ... bodily injuries to others ... caused by accident resulting from the ownership, maintenance or use of your car,'" the panel said.
In another part of the policy, "bodily injury" is defined as "'bodily injury to a person and sickness, disease, or death which results from it,'" the panel said.
State Farm argued the definition is clear when read against Black's Law Dictionary, which defines bodily injury as "'physical damage to a person's body,'" the judges said.
"Initially, we note that, in the context of NIED, our jurisprudence has distinguished 'bodily injuries' from purely emotional injuries," the panel said. "We have also, however, rejected the notion that bodily harm or physical injury necessitates physical impact."
The judges said the Superior Court has not ruled one way or another whether family bystander NIED claims include a physical or bodily component. Often cases will allow for recovery for NIED claims when a physical injury is also present. Some of the emotional injuries that have qualified in that situation have included knots in the stomach, nightmares, loss of sleep, headaches, low self-esteem, susceptibility to fright and major depression.
"These symptoms may not involve blunt trauma to muscle, tissue, or bone, but our precedent recognizes them to reflect the significant physical or bodily toll severe emotional distress may take," the judges said.
State Farm had further argued that its policy language limited the coverage to the $100,000 wrongful death settlement even if the Lipskys' NIED claims were covered. The company cited policy language stating "'bodily injury to one person includes all injury and damages to others resulting from this bodily injury.'"
The judges disagreed, arguing prior case law has found NIED claims can be separate from physical injury claims.
Judges Kate Ford Elliott and Christine Donohue sat on the panel with Stevens. Donohue issued a concurring opinion and Ford Elliott wrote a dissenting opinion.
Donohue wrote to point out that the State Farm policy did not include language requiring the same person suffer both bodily injury and the resulting sickness, disease or death. The policy only provides that someone must suffer a bodily injury and that sickness, disease or death results from the injury.
"Both of these requirements are satisfied in this case, as Benjamin Lipsky suffered a bodily injury and Martin, Daniel and Elie Lipsky all suffered a disease resulting from that bodily injury," Donohue said.
In her dissent, Ford Elliott said she didn't think the policy was ambiguous in defining bodily injury.
"Under Pennsylvania law, and as acknowledged by the majority, it is now well established that unless otherwise expressly defined in the contract, the terms 'injury,' 'bodily injury,' or 'bodily harm' do not encompass mental or emotional harm," Ford Elliott said. "If I were writing on a clean slate, I might agree that the overwhelming shock at witnessing your child's death clearly has a visceral physical impact, but I believe this issue has already been resolved."
Ford Elliott cited the Superior Court's 1996 opinion in Zerr v. Erie Insurance Exchange and the 1986 opinion in Needleman v. Liberty Mutual Fire Insurance Co. along with the state Supreme Court's 1996 opinion in Jackson v. Travelers Insurance Co .
In Zerr , for example, the policyholder swerved to avoid a collision with another vehicle and later developed post-traumatic stress disorder. That court found the definitions of injury in the policy required the illness, disease or death be the result of a bodily injury.
"These cases collectively stand for the proposition that an insured cannot recover for emotional injuries that manifest into physical symptoms, even when the insured witnessed the death of an immediate family member in an automobile accident," Ford Elliott said.
Ezra Wohlgelernter and Thomas Martin of Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig represented the Lipskys. Louis Bricklin and Samantha Gioffre of Bennett Bricklin & Saltzburg represented State Farm.
Wohlgelernter said the circumstances of seeing a family member killed is not a new fact pattern in Pennsylvania law. What was new, he said, was the insurance company attempting to carve out this type of claim with a "convoluted" argument that "a bodily injury is a bodily injury."
"If they wanted not to insure this kind of claim, they should have said very explicitly 'we don't insure claims for emotional distress,'" Wohlgelernter said.
Bricklin declined to comment.