Jerry Garrison v. Rita Bickford

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

May 8, 2012 Session

JERRY GARRISON ET AL. v. RITA BICKFORD ET AL.

Appeal by Permission from the Court of Appeals, Eastern Section

Circuit Court for Bledsoe County

No. 4236 Buddy D. Perry, Judge

No. E2010-02008-SC-R11-CV - Filed August 22, 2012

Following an accident which claimed the life of their teenage son, the deceased’s parents

filed claims for wrongful death and negligent infliction of emotional distress against the

driver and owner of the car that struck their son. The parents also sought to recover from

their own insurance company under the uninsured motorist provisions of their policy. The

driver of the car settled, paying the deceased’s parents $25,000 for their wrongful death claim

and $25,000 for their negligent infliction of emotional distress claim. The parents’ insurer

paid them an additional $75,000 for the wrongful death claim but refused to pay any damages

for their emotional injuries. The insurer contended that (1) emotional distress did not

constitute “bodily injury” as defined in the policy, and (2) the “Each Person” limit in the

policy had been met, thereby exhausting any available coverage. The parents maintained that

recovery for emotional harm was not precluded under the policy definition of “bodily injury”

and that the “Each Person” limit had not been met. The trial court agreed with the parents

and ruled in favor of coverage. The Court of Appeals reversed. We granted the parents’

application for permission to appeal to decide whether “bodily injury” as defined in the

policy includes mental injuries standing alone. It does not. The judgment of the Court of

Appeals is affirmed.

Tenn. R. App. P. 11; Judgment of the Court of Appeals Affirmed

C ORNELIA A. C LARK, C.J., delivered the opinion of the court, in which JANICE M. H OLDER,

G ARY R. W ADE, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Joseph H. Crabtree, Jr., Athens, Tennessee, for the appellants, Jerry Garrison and Martha

Garrison.

Joseph B. Klockenkemper, II, Nashville, Tennessee, for the appellee, State Farm Mutual

Automobile Insurance Company.

OPINION

Factual and Procedural History

On June 9, 2006, a car driven by Andy Bickford struck and killed eighteen-year-old

Michael Garrison, who was riding a minibike on a road near his home. Garrison’s parents,

Jerry and Martha Garrison,1 and younger brother, Daniel Garrison, heard, but did not see, the

collision. Jerry and Daniel Garrison, the first people to arrive at the scene, observed the

deceased’s injuries. Mr. Garrison testified that the deceased was “barely breathing [and]

blood [was] flowing everywhere.” Mr. Garrison waited with his critically injured son more

than an hour for an ambulance to arrive. Mrs. Garrison testified that when she arrived at the

scene a crowd had already gathered and she “was screaming for [Michael], to tell him I was

there. I just was calling to him the whole time . . . telling him that I was there and to hang

on.” The young man was airlifted to a hospital in Chattanooga where he died from his

injuries.

The Garrisons filed claims for wrongful death and negligent infliction of emotional

distress against Andy Bickford and the owner of the car, Rita Bickford. The complaint, along

with an amended complaint, alleged that Andy Bickford was intoxicated, speeding, and

traveling in the wrong lane at the time of the accident. The suit further alleged that he did not

immediately stop following the collision, and after stopping his car, he fled the scene. The

complaint also alleged that Rita Bickford negligently entrusted her vehicle to Andy Bickford

because she was aware of his propensity to drive at excessive speeds, drive recklessly, and

operate a vehicle while under the influence of alcohol or drugs. According to the complaint,

the Garrisons, upon hearing the collision, went to render aid when they saw the deceased’s

“mangled body” face down in a ditch beside the road. As a result of what they saw, the

Garrisons “suffered grief, fright, shock, depression, loss of sleep and other problems” for

which they sought compensatory damages.

In addition to filing suit against the Bickfords, the Garrisons served a copy of the

complaint upon their own insurance company, State Farm Mutual Automobile Insurance

1

It is unclear from the record whether Mrs. Garrison’s correct name is Mary, Martha,

Margaret, or Mary Margaret, for all of these names are used to refer to her. For our purposes, this

uncertainty is of no consequence.

2

Company (“State Farm”), pursuant to the uninsured motorist provisions of their policy.2 The

Garrisons’ policy with State Farm covered “damages for bodily injury an insured is legally

entitled to collect from the owner or driver of an uninsured motor vehicle.” The policy

defined “bodily injury” as “bodily injury to a person and sickness, disease, or death that results

from it.” The uninsured motorist coverage of the policy included a $100,000 limit for “Each

Person” and a $300,000 limit for “Each Accident.” 3

As the litigation progressed, the Garrisons settled their wrongful death claim against

Andy Bickford for $25,000, plus $25,000 for the negligent infliction of emotional distress

claim.4 The Garrisons also settled their wrongful death claim with State Farm for $75,000,

which State Farm asserted was the amount remaining under the “Each Person” limit of the

policy. However, State Farm refused to pay damages for the Garrisons’ emotional distress

claim on the basis that emotional harm was not a “bodily injury” as defined in the policy.

State Farm also claimed that because the Garrisons’ emotional distress was caused by their

witnessing the deceased’s injuries, their claims were included in the “Each Person” limit of

liability encompassing the deceased’s injuries. Pursuant to the partial settlement with State

Farm, the Garrisons dismissed their wrongful death claim, but continued to press their claim

2

Although State Farm was not a named party in the original or amended complaints,

[a]ny insured intending to rely on the [uninsured motorist] coverage required by this

part shall, if any action is instituted against the owner and operator of an uninsured

motor vehicle, serve a copy of the process upon the insurance company issuing the

policy in the manner prescribed by law, as though the insurance company were a

party defendant. The company shall thereafter have the right to file pleadings and

take other action allowable by law in the name of the owner and operator of the

uninsured motor vehicle or in its own name.

Tenn. Code Ann. § 56-7-1206(a) (2008).

3

The policy provided, in part:

The limit shown under ‘Each Person’ is the most we will pay for all damages

resulting from bodily injury to any one insured injured in any one accident, including

all damages sustained by other insureds as a result of that bodily injury. The limit

shown under ‘Each Accident’ is the most we will pay, subject to the limit for ‘Each

Person,’ for all damages resulting from bodily injury to two or more insureds injured

in the same accident.

4

The record does not reveal the disposition of the Garrisons’ claims against the owner of the

car, Rita Bickford. Neither she nor Andy Bickford are parties to this appeal.

3

for negligent infliction of emotional distress, arguing that the policy provided coverage for

mental injuries.

State Farm filed a motion for summary judgment, arguing that mental injuries were not

covered under the policy and, in any event, its payment of $75,000 to the Garrisons exhausted

the “Each Person” limit of the policy. The trial court denied the motion. State Farm then filed

a motion to alter or amend and a supplemental motion for summary judgment. The trial court

denied these motions as well, but granted an interlocutory appeal under Rule 9 of the

Tennessee Rules of Appellate Procedure. In ruling in favor of coverage, the trial court found

that the “bodily injury” provision of the uninsured motorist statute, Tennessee Code

Annotated section 56-7-1201, was broader than the definition of “bodily injury” contained in

the policy. Accordingly, the trial court found that the policy provided, by operation of law,

coverage for the Garrisons’ emotional distress claim.

The Court of Appeals determined that the Garrisons’ mental injury claim stemmed

from the bodily injuries to the deceased and, therefore, fell within the liability limitations

contained in the “Each Person” provision of the policy. Garrison v. Bickford, No. E2010-

02008-COA-R9-CV, 2011 WL 3241869, at *10 (Tenn. Ct. App. July 29, 2011). The Court

of Appeals concluded that because the $100,000 coverage the policy afforded under the “Each

Person” limit had been exhausted by virtue of the Garrisons’ $25,000 settlement with Andy

Bickford and the $75,000 settlement with State Farm, there was no further coverage available

to pay the Garrisons’ emotional distress claim. Id.

We granted the Garrisons’ application for permission to appeal to determine whether

“bodily injury” as defined in the policy includes mental injuries standing alone. For the

reasons explained below, we conclude that it does not.

Analysis

I.

Our analysis of this case is guided by several well-established principles. First,

Tennessee law is clear that questions regarding the extent of insurance coverage present issues

of law involving the interpretation of contractual language. Clark v. Sputniks, LLC, 368

S.W.3d 431, 436 (Tenn. 2012); Maggart v. Almany Realtors, Inc., 259 S.W.3d 700, 703

(Tenn. 2008). Likewise, questions regarding the interpretation of a statute involve issues of

law. In re Estate of Trigg, 368 S.W.3d 483, 490 (Tenn. 2012). This case involves the

construction of both an insurance contract and a statute, Tennessee Code Annotated section

56-7-1201, and therefore our standard of review is de novo with no presumption of

4

correctness afforded to the conclusions reached by the courts below. U.S. Bank, N.A. v.

Tenn. Farmers Mut. Ins. Co., 277 S.W.3d 381, 386 (Tenn. 2009).

When interpreting a statute, courts “must ascertain and give effect to the legislative

intent without restricting or expanding the statute’s intended meaning.” U.S. Bank, 277

S.W.3d at 386. Our task is to examine the text of the statute and, if the language used is

unambiguous, we simply apply the plain meaning of the words used in the statute. Nye v.

Bayer Cropscience, Inc., 347 S.W.3d 686, 694 (Tenn. 2011); U.S. Bank, 277 S.W.3d at 386.

As we recently observed, courts “must (1) give these words their natural and ordinary

meaning, (2) consider them in the context of the entire statute, and (3) presume that the

General Assembly intended to give each of these words its full effect.” In re Estate of Trigg,

368 S.W.3d at 490. Every word in a statute is presumed to have meaning and purpose. Nye,

347 S.W.3d at 694; Highwoods Props., Inc. v. City of Memphis, 297 S.W.3d 695, 701 (Tenn.

2009). If, after examining the text of the statute, it becomes clear the statute is ambiguous,

“we may reference the broader statutory scheme, the history of the legislation, or other sources

to discern its meaning.” Highwoods Props., 297 S.W.3d at 701; see also Mills v. Fulmarque,

Inc., 360 S.W.3d 362, 368 (Tenn. 2012) (“When necessary to resolve a statutory ambiguity

or conflict, courts may consider matters beyond the statutory text, including public policy,

historical facts relevant to the enactment of the statute, the background and purpose of the

statute, and the entire statutory scheme.”). “However, these non-codified external sources

cannot provide a basis for departing from clear codified statutory provisions.” Mills, 360

S.W.3d at 368 (internal quotation marks omitted).

Equally well-established is the principle that “[i]nsurance policies are, at their core,

contracts.” Allstate Ins. Co. v. Tarrant, 363 S.W.3d 508, 527 (Tenn. 2012) (Koch, J.,

dissenting). As such, courts interpret insurance policies using the same tenets that guide the

construction of any other contract. Am. Justice Ins. Reciprocal v. Hutchison, 15 S.W.3d 811,

814 (Tenn. 2000). Thus, the terms of an insurance policy “‘should be given their plain and

ordinary meaning, for the primary rule of contract interpretation is to ascertain and give effect

to the intent of the parties.’” Clark, 368 S.W.3d at 441 (quoting U.S. Bank, 277 S.W.3d at

386-87). The policy should be construed “as a whole in a reasonable and logical manner,”

Standard Fire Ins. Co. v. Chester-O’Donley & Assocs., 972 S.W.2d 1, 7 (Tenn. Ct. App.

1998), and the language in dispute should be examined in the context of the entire agreement,

Cocke Cty Bd. of Highway Comm’rs. v. Newport Utils. Bd., 690 S.W.2d 231, 237 (Tenn.

1985).

In addition, contracts of insurance are strictly construed in favor of the insured, and if

the disputed provision is susceptible to more than one plausible meaning, the meaning

favorable to the insured controls. Tata v. Nichols, 848 S.W.2d 649, 650 (Tenn. 1993);

VanBebber v. Roach, 252 S.W.3d 279, 284 (Tenn. Ct. App. 2007). However, a “strained

5

construction may not be placed on the language used to find ambiguity where none exists.”

Farmers-Peoples Bank v. Clemmer, 519 S.W.2d 801, 805 (Tenn. 1975).

II.

At the outset, it is important to put this appeal in its proper analytical context. First,

it is undisputed that the Garrisons, as well as the decedent, were insureds under State Farm’s

policy. Likewise, there is no dispute that Michael Garrison sustained “bodily injury” in the

accident resulting in his death. Nor is there any question, for purposes of this appeal, that the

Garrisons were entitled to pursue negligent infliction of emotional distress claims against

Andy Bickford, the driver of the vehicle that struck the deceased. Thus, this is not a case that

requires us to address the parameters of the tort of negligent infliction of emotional distress

as we have done a number of times before.5

Rather, the crux of this appeal is whether, as a matter of insurance and contract law,

the Garrisons’ mental injuries constitute “bodily injury” under the policy. A related, but

separate question, is whether the Garrisons’ claims are included in the deceased’s “Each

Person” limit on liability, as opposed to the Garrisons having their own distinct limits. State

Farm maintains that the Garrisons’ mental injuries do not constitute “bodily injury” under the

5

See, e.g., Rogers v. Louisville Land Co., 367 S.W.3d 196, 206 (Tenn. 2012) (“The elements

of a claim for negligent infliction of emotional distress include the elements of a general negligence

claim, which are duty, breach of duty, injury or loss, causation in fact, and proximate causation.”);

Eskin v. Bartee, 262 S.W.3d 727, 739-40 (Tenn. 2008) (a plaintiff who does not witness the injury-

producing event may recover for negligent infliction of emotional distress if he or she proves (1) the

actual or apparent death or serious physical injury of another caused by the negligence of the

defendant, (2) the existence of a close personal relationship between the plaintiff and the deceased

or injured person, (3) the plaintiff’s observation of the actual or apparent death or serious physical

injury at the scene of the accident before the scene is materially altered, and (4) the resulting serious

or severe emotional injury to the plaintiff caused by the observation of the death or injury); Lourcey

v. Estate of Scarlett, 146 S.W.3d 48, 53-54 (Tenn. 2004) (a plaintiff who witnesses the injury

producing event may recover damages without establishing a close relationship with the victim of

the tort); Ramsey v. Beavers, 931 S.W.2d 527, 532 (Tenn. 1996) (recovery for negligent infliction

of emotional distress is limited to “serious or severe emotional injuries”); Camper v. Minor, 915

S.W.2d 437, 446 (Tenn. 1996) (a claim for negligent infliction of emotional distress requires

evidence of a “severe” or “serious” emotional injury that “a reasonable person, normally constituted,

would be unable to adequately cope with”).

6

policy and, even if they did, their claim is not compensable because the “Each Person” limit

of $100,000 was already met by the $75,000 payment for their wrongful death claim.6

The Garrisons respond that, according to the policy, the “Each Person” limit of

$100,000 applies to “damages resulting from bodily injury to any one insured.” Consequently,

they assert that they each have their own $100,000 limit given that they suffered an injury

distinct from the deceased’s injuries. Further, they maintain that the definition of “bodily

injury” in the policy is broad enough to encompass emotional harm and, even if it is not, the

uninsured motorist statute, Tennessee Code Annotated section 56-7-1201, is broad enough

to include emotional injuries. As such, they assert that the statute supersedes the more

restrictive policy language.

The legislature has established the minimum standard of protection acceptable for

uninsured motorist coverage in Tennessee as follows:

Every automobile liability insurance policy delivered, issued for

delivery or renewed in this state, covering liability arising out of

the ownership, maintenance, or use of any motor vehicle

designed for use primarily on public roads and registered or

principally garaged in this state, shall include uninsured motorist

coverage, subject to provisions filed with and approved by the

commissioner, for the protection of persons insured under the

policy who are legally entitled to recover compensatory damages

from owners or operators of uninsured motor vehicles because of

bodily injury, sickness or disease, including death, resulting from

injury, sickness or disease.

6

According to the parties’ briefs, they agree that the “Each Person” limit of $100,000 in the

policy was reduced by the $25,000 settlement between the Garrisons and Andy Bickford.

7

Tenn. Code Ann. § 56-7-1201(a) (2008) (emphasis added).7 This statute, enacted in 1967,

was the result of “public concern over the increasing problem arising from property and

personal injury damage inflicted by uninsured and financially irresponsible motorists.”

Shoffner v. State Farm Mut. Auto. Ins. Co., 494 S.W.2d 756, 758 (Tenn. 1972), overruled on

other grounds by Auto. Mut. Ins. Co. v. Cummings, 519 S.W.2d 773 (Tenn. 1975). Thus, the

purpose of the uninsured motorist statute “is to provide, within fixed limits, some recompense

to innocent persons who receive bodily injury or property damage through the conduct of an

uninsured motorist who cannot respond in damages.” Id.

“The intent and purpose of the Uninsured Motorist Act is to provide protection by

making the insurance carrier stand as the insurer of the uninsured motorist.” Stallcup v.

Duncan, 684 S.W.2d 643, 646 (Tenn. Ct. App. 1984). “Thus, the insured is allowed to

purchase uninsured motorist coverage for the protection that he would have had if the alleged

tortfeasor had assumed his own financial responsibility by purchasing liability insurance.”

Id. In other words, “uninsured motorist insurance does not actually insure the uninsured

motorist. It insures the insured and assures him of some recovery when the other parties do

not have liability insurance.” Thompson v. Parker, 606 S.W.2d 538, 540 (Tenn. Ct. App.

1980). In short, the purpose of section 56-7-1201(a) is to protect those who purchase motor

vehicle liability insurance from those who do not.

The statutory language at the core of this case is “bodily injury, sickness or disease,

including death.” Tenn. Code Ann. § 56-7-1201(a). The policy issued to the Garrisons by

State Farm provides coverage for “bodily injury to a person and sickness, disease, or death

that results from it.” Because the policy cannot provide less coverage than that required by

the statute, State Farm asserts that the words “injury, sickness or disease” as used in section

7

We note that the language appearing in the most recent 2008 Tennessee Code Annotated

replacement volume (“because of bodily injury, sickness or disease, including death, resulting from

injury, sickness or disease”), Tenn. Code Ann. § 56-7-1201(a) (2008) (emphasis added), does not

appear in the most recent amendments to the statute in 1999. The Tennessee Code Annotated

replacement volume for 2000 includes the phrase “because of bodily injury, sickness or disease,

including death, resulting therefrom.” Tenn. Code Ann. § 56-7-1201(a) (2000) (emphasis added).

The Code Commission, rather than the General Assembly, apparently made this change in language

pursuant to Tennessee Code Annotated section 1-1-108(a), which states that the Commission “shall

not alter the sense, meaning or effect of any act of the general assembly,” but permits the

Commission “to make other stylistic, nonsubstantive changes.” We assume that the Commission’s

replacement of “resulting therefrom” with “resulting from injury, sickness or disease” was intended

to be nonsubstantive and stylistic. The matter would be much less clear, however, were it not for

section 56-7-1202(a)(1), discussed later in this opinion. As this discussion highlights, the Code

Commission should exercise great care in altering the text of a statute.

8

56-7-1201(a) are restricted by the word “bodily,” and that the plain meaning of “bodily injury”

excludes an emotional or mental injury in both the statute and the policy. State Farm also

points to general provisions governing motor vehicle liability policies which require coverage

only for “bodily injury and death or property damage, or both.” Tenn. Code Ann. § 55-12-

122(c) (2008) (“A motor vehicle liability policy shall . . . contain an agreement or

endorsement that insurance is provided . . . with respect to bodily injury and death or property

damage, or both . . . .”).

The Garrisons respond that if the legislature had intended to exclude mental injury

claims from the reach of uninsured motorist coverage, it would have omitted “sickness or

disease” from section 56-7-1201(a). They further maintain that even if the term “bodily” in

the policy is read to modify “sickness, disease, or death,” the word “bodily” in the statute

modifies only “injury,” not “sickness or disease.” Consequently, the Garrisons assert that the

policy definition of “bodily injury” is more restrictive than the coverage mandated by the

uninsured motorist statute. As such, they argue that the language of section 56-7-1201(a)

supersedes the policy definition of “bodily injury” and becomes part of the policy.8 See

Christenberry v. Tipton, 160 S.W.3d 487, 492 (Tenn. 2005) (“[I]f the terms of an automobile

insurance policy fail to comport with statutory requirements, then the statute takes precedence,

supersedes the conflicting policy provisions, and in effect becomes part of the insurance

policy itself.”).

Although the meaning of “bodily injury” for purposes of uninsured motorist coverage

is an issue of first impression in Tennessee, there has been no shortage of litigation in other

jurisdictions addressing this issue. The majority of courts facing the question in various

contexts have concluded that “bodily injury” does not include mental or emotional harm

absent a physical injury to the insured. See, e.g., Nance v. Phoenix Ins. Co., 118 F. App’x

640, 642 (3d Cir. 2004); Nat’l Fire Ins. Co. of Hartford v. NWM-Okla., LLC, 546 F. Supp.

2d 1238, 1246 (W.D. Okla. 2008); Home Ins. Co. v. Hartford Fire Ins. Co., 379 F. Supp. 2d

1282, 1289 (M.D. Ala. 2005); Mut. Serv. Cas. Ins. Co. v. Co-op Supply, Inc. of Dillon, Mont.,

699 F. Supp. 1438, 1440 (D. Mont.1988); W. Am. Ins. Co. v. Bank of Isle of Wight, 673 F.

Supp. 760, 765 (E.D. Va.1987); Rolette Cnty. v. W. Cas. & Sur. Co., 452 F. Supp. 125, 130

(D.N.D. 1978); Nat’l Cas. Co. v. Great Sw. Fire Ins. Co., 833 P.2d 741, 746 (Colo. 1992);

Galgano v. Metro. Prop. & Cas. Ins. Co., 838 A.2d 993, 999 (Conn. 2004); Cotton States Mut.

Ins. Co. v. Crosby, 260 S.E.2d 860, 862-63 (Ga. 1979); SCR Med. Transp. Servs., Inc. v.

8

Because the policy language in this case favors State Farm, we agree with the Garrisons that

section 56-7-1201(a) must be examined to determine if the statute requires greater coverage than the

language of the policy provides.

9

Browne, 781 N.E.2d 564, 571 (Ill. App. Ct. 2002); Armstrong v. Federated Mut. Ins. Co., 785

N.E.2d 284, 292-93 (Ind. Ct. App. 2003); Allstate Ins. Co. v. Diamant, 518 N.E.2d 1154, 1156

(Mass. 1988); Greenman v. Mich. Mut. Ins. Co., 433 N.W.2d 346, 348-49 (Mich. Ct. App.

1988); Garvis v. Emp’rs Mut. Cas. Co., 497 N.W.2d 254, 257-58 (Minn. 1993); Citizens Ins.

Co. of Am. v. Leiendecker, 962 S.W.2d 446, 454 (Mo. Ct. App. 1998); Farm Bureau Ins. Co.

of Neb. v. Martinsen, 659 N.W.2d 823, 828-29 (Neb. 2003); David v. Nationwide Mut. Ins.

Co., 665 N.E.2d 1171, 1173 (Ohio Ct. App. 1995); Mellow v. Med. Malpractice Joint

Underwriting Ass’n, 567 A.2d 367, 368 (R.I. 1989); Daley v. Allstate Ins. Co., 958 P.2d 990,

998 (Wash. 1998); Tackett v. Am. Motorists Ins. Co, 584 S.E.2d 158, 166 (W. Va. 2003).

The Washington Supreme Court’s decision in Daley is representative of many of the

cases adopting the majority view. In Daley, the insured sought to recover for negligent

infliction of emotional distress stemming from his witnessing another person’s fatal injuries.

958 P.2d at 991-92. The insured’s uninsured motorist policy defined “bodily injury” as

“bodily injury, sickness, disease or death.” Id. at 993. In concluding that the insured was not

entitled to recover for emotional distress unrelated to a physical injury, the Washington court

observed that the “clear majority of states . . . have held that the term ‘bodily injury’ does not

include damages for purely emotional injuries.” Id. at 993-94. The court explained that “‘in

the context of purely emotional injuries, without physical manifestations, the phrase ‘bodily

injury’ is not ambiguous. Its ordinary meaning connotes a physical problem.’” Id. at 994

(quoting SL Indus., Inc. v. Am. Motorists Ins. Co., 607 A.2d 1266, 1274 (N.J. 1992)). The

court further observed that in interpreting the common policy definition of “bodily injury” as

“bodily injury, sickness, or disease,” courts have found that the word “bodily” modifies the

terms “sickness or disease,” so that the policy “would then read ‘bodily injury, bodily

sickness, [or] bodily disease.’” Id. at 995. Following this line of analysis, the “overwhelming

majority of courts interpret the phrase ‘bodily injury’ to include claims for physical injury and

to exclude claims for purely nonphysical or emotional harm.” Id. at 994.

Similarly, in Johnson v. American Family Insurance, 827 N.E.2d 403, 404 (Ohio Ct.

App. 2005), an insured sought compensation from her uninsured motorist carrier for

emotional distress stemming from the death of her sister in a car accident. Noting that the

policy defined “bodily injury” as “bodily injury to or sickness, disease or death of any person,”

the Ohio court observed that “bodily injury” is “commonly and ordinarily used to designate

an injury caused by external violence.” Id. at 407 (internal quotation marks omitted). The

court concluded that the “policy clearly states, to be covered . . . the insured[] must have

sustained ‘bodily injury’ caused by an accident . . . . Although she certainly sustained

emotional injury, [the insured] was not involved in and did not receive bodily injuries from

the accident that caused the death of her sister.” Id. Consequently, the insured’s underinsured

motorist “claims were effectively excluded from coverage by the policy language.” Id.

10

While some cases, such as Daley, find no coverage on the basis that the term “bodily”

modifies or restricts the words that follow, namely “sickness or disease”, other cases place no

significance on which words “bodily” modifies because “[n]either sickness nor disease

arguably includes emotional distress.” David, 665 N.E.2d at 1173. Therefore, “whether the

word ‘bodily’ modifies ‘sickness’ or ‘disease’ is irrelevant.” Id. Or, as one court has

observed, “[t]hese words cannot fairly be said to have misled anyone,” and they “need no

explanation.” Cotton States Mut. Ins. Co., 260 S.E.2d at 862.

Still other cases focus on typical dictionary definitions to find the meaning of “bodily

injury.” For instance, in concluding that “the common meaning of the phrase ‘bodily harm,

sickness or disease’ as used to define ‘bodily injury’ is not ambiguous,” Citizens Ins. Co. of

Am., 962 S.W.2d at 454, one court has observed that “[i]n dictionary definitions, ‘bodily’ is

equated with ‘physical’ . . . as contrasted with ‘mental.’” Id. at 453. Thus, “‘bodily injury’

. . . refers to physical conditions of the body and excludes mental suffering or emotional

distress.” Id. at 454. Moreover, “in insurance law ‘bodily injury’ is considered to be a

narrower concept than ‘personal injury’ which covers mental or emotional injury.” Id. at 453.

As this discussion illustrates, most courts “conclusively exclud[e] emotional distress

from the insurance definition [of] ‘bodily injury, sickness or disease.’” David, 665 N.E.2d

at 1173. While these cases represent the clear majority view, other cases considering the issue

have been decided in favor of coverage. For example, in Evans v. Farmers Insurance

Exchange, 34 P.3d 284, 286-87 (Wyo. 2001), the parents of a child seriously injured in an

accident sought to recover damages for their emotional distress under the uninsured motorist

provisions of their policy, which defined “bodily injury” as “bodily harm to or sickness,

disease or death of any person.” The insurer agreed that the parents suffered emotional harm

in witnessing their child’s accident, but refused to cover purely emotional injury

unaccompanied by any kind of physical harm. Id. at 284-85. While acknowledging that “[a]

common sense reading of the term ‘bodily injury,’ without more, may indeed connote physical

harm rather than emotional harm,” id. at 286, the Wyoming court concluded that “bodily

injury” did not modify the terms “sickness” or “disease,” and emotional injuries were neither

expressly included or excluded from commonly understood definitions of those words. Id.

at 287. The court thus resolved this “ambiguity” in favor of coverage. Id.

Similarly, in Ryder v. USAA General Indemnity Co., 938 A.2d 4, 5 (Me. 2007), the

mother of a young child sought to recover for negligent infliction of emotional distress after

witnessing the child being fatally struck by a car. The mother sought to recover under the

uninsured motorist provisions of her policy, which defined “bodily injury” as “bodily harm,

sickness, disease or death.” Id. at 6. Maine’s high court noted that most jurisdictions

considering the matter have held that the phrase “bodily injury, when either undefined or

defined as ‘bodily’ followed by the noun series ‘injury [or harm], sickness or disease’ is

11

unambiguous and encompasses only physical harm.” Id. at 7 (brackets in original). The court

found the definition ambiguous, however, because it was unclear whether “bodily” was

intended to modify all the nouns that followed it in the policy. Id. at 8. The court further

explained that because the definition of “bodily injury” included sickness or disease, coverage

extended to nonphysical harm because “serious emotional distress a person experiences from

having witnessed an accident may or may not also qualify as a diagnosable sickness or

disease.” Id. at 9; see also Pekin Ins. Co. v. Hugh, 501 N.W.2d 508, 512 (Iowa 1993)

(holding that emotional distress arising from “a bystander claim is a bodily injury for purposes

of insurance coverage” because “[a]ny attempt to distinguish between ‘physical’ and

‘psychological’ injuries just clouds the issue”); Crabtree v. State Farm Ins. Co., 632 So.2d

736, 744 (La. 1994) (finding ambiguous a policy that defined “bodily injury” as “bodily injury

to a person, and sickness, disease or death which results from it”); Lanigan v. Snowden, 938

S.W.2d 330, 332 (Mo. Ct. App. 1997) (finding the phrase “bodily injury, sickness or disease”

ambiguous because it “can be construed in a way that the adjective ‘bodily’ modifies all three

nouns, or it can be construed with equal plausibility that ‘bodily’ modifies only injury”);

Lavanant v. Gen. Accident Ins. Co. of Am., 595 N.E.2d 819, 822-23 (N.Y. 1992) (concluding

that “bodily injury,” defined as “bodily injury, sickness or disease,” is ambiguous).9

III.

After considering the approaches of other jurisdictions, we are persuaded that the

phrase “bodily injury,” as used in both section 56-7-1201(a) and the policy before us, does not

include damages for a mental or emotional injury by itself. The commonly understood

meaning of the words “bodily injury to a person and sickness, disease, or death that results

from it” as used in the policy, or the words “bodily injury, sickness or disease, including

death” as used in the statute, are unambiguous.10 These words, when used to define “bodily

9

The trial court in the present case relied upon State Farm Mutual Automobile Insurance Co.

v. Jakupko, 881 N.E.2d 654, 656 (Ind. 2008), which involved a policy defining “bodily injury” as

“bodily injury to a person and sickness, disease or death which results from it.” The Jakupko court

determined that this definition included emotional distress. Id. at 658. Other Indiana decisions,

however, make clear that Jakupko involved plaintiffs who had been physically impacted by the

accident that resulted in the emotional harm for which a recovery was sought. See, e.g., Bush v.

State Farm Mut. Auto. Ins. Co., 905 N.E.2d 1003, 1005 (Ind. 2009); State Farm Mut. Auto. Ins. Co.

v. D.L.B. ex rel. Brake, 881 N.E.2d 665, 666 (Ind. 2008). Thus, Jakupko is distinguishable from this

case.

10

Even if section 56-7-1201(a) was determined to be ambiguous, we note that section 56-7-

1202(a)(1) defines an “uninsured motor vehicle” for purposes of uninsured motorist coverage as “a

motor vehicle whose ownership, maintenance, or use has resulted in the bodily injury, death, or

damage to property of an insured.” This definition does not include mental injuries and, if the two

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injury,” refer to physical, not emotional, conditions of the body. See Webster’s Third New

International Dictionary 245 (3d ed. 1976) (equating “bodily” with “physical,” as

“contrast[ed] with mental”); Black’s Law Dictionary 801 (8th ed. 2004) (defining “bodily

injury” as “[p]hysical damage to a person’s body”). Policy language may not be construed

to include different coverage, namely damages for emotional harm standing alone, when the

plain and ordinary terms used indicate otherwise. Stated differently, we “cannot under the

guise of construction make a new and different contract for the parties,” Memphis Furniture

Mfg. Co. v. Am. Cas. Co., 480 S.W.2d 531, 533 (Tenn. 1972), and a “strained construction

may not be placed on the language used to find ambiguity where none exists,” Farmers-

Peoples Bank, 519 S.W.2d at 805. Simply put, the parties’ policy must be enforced as written.

Our conclusion is also in accord with the majority of other jurisdictions that have

addressed the question. As one court has observed, “the overwhelming majority of

jurisdictions which have considered the issue hold that ‘bodily injury’ standing alone or

defined in a policy as ‘bodily injury [or harm], sickness or disease’ is unambiguous and

encompasses only physical harm.” Citizens Ins. Co. of Am., 962 S.W.2d at 452 (brackets in

original). The majority view, which we adopt, is consistent with older, analogous Tennessee

cases. For example, in Guardian Life Insurance Co. of America v. Richardson, 129 S.W.2d

1107, 1115 (Tenn. Ct. App. 1939), the Court of Appeals, in construing the meaning of “bodily

injury or disease” in a life insurance policy, concluded that “the word ‘disease’ is ‘restricted’

by the word ‘bodily’; and grammatically, the word ‘bodily’ modifies ‘disease,’ as well as

‘injury’; and manifestly it was inserted for the purpose of excluding mental disease.” See also

Provident Life & Accident Ins. Co. v. Campbell, 79 S.W.2d 292, 304 (Tenn. Ct. App. 1934)

(“[A] purely ‘mental shock,’ due to excitement or mental disturbance . . . is not a bodily

injury.”). In a more recent case, the Court of Appeals concluded that “bodily injury,” defined

in a commercial general liability policy as “bodily injury, sickness or disease,” did not include

“embarrassment, humiliation, mental anguish, [and] emotional pain and suffering.” Am.

Indem. Co. v. Foy Trailer Rentals, Inc., W2000-00397-COA-R3-CV, 2000 WL 1839131, at

*3-4 (Tenn. Ct. App. Nov. 28, 2000). Although these cases were not decided in the context

of uninsured motorist coverage, they are nonetheless analogous in principle.

The result we have reached in this case is also consistent with the nature of the tort of

negligent infliction of emotional distress itself. At one time, some form of physical harm was

required to successfully pursue such a claim. See Camper, 915 S.W.2d at 443-46. That is no

longer the case, however, as emotional harm alone forms the basis of the tort, apart from a

claim for personal injury. See Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 530 (Tenn.

statutes are construed together, it is apparent that the legislature intended to provide coverage for

physical injuries, not mental injuries. See Graham v. Caples, 325 S.W.3d 578, 582-83 (Tenn. 2010)

(observing that statutes relating to the same subject matter should be construed together).

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2008).11 Indeed, it is now generally accepted that “[e]motional harm is distinct from bodily

harm and means harm to a person’s emotional tranquility.” See Restatement (Third) of Torts

§ 4 cmt. a (2010). On the other hand, physical or bodily harm “means the physical impairment

of the human body,” namely, “physical injury, illness, disease, impairment of bodily function,

and death.” Id. at § 4. This definition “is meant to preserve the ordinary distinction between

bodily harm and emotional harm.” Id. at cmt. b. Thus, “[t]he cases permitting recovery for

emotional harm suffered by bystanders who witness physical injury to someone else provide

protection to the interest in emotional tranquility distinct from protection against bodily

harm.” Id. at reporters’ note (cmt. d). Our decision today is in accord with these established

principles. A contrary decision would blur the distinction between physical and mental

injuries and merely serve to confuse matters.

In sum, a bystander claim for negligent infliction of emotional distress, such as that

asserted by the Garrisons, is not a claim for bodily harm. Accordingly, we conclude that in

the context of purely emotional injuries, the phrase “bodily injury,” as defined in the policy

before us, is unambiguous. Its ordinary meaning connotes a physical injury. Thus, we hold

that, as applied to this case, “bodily injury” does not include damages for emotional harm

alone. We further conclude that the definition of “bodily injury” in the policy does not

conflict with the uninsured motorist statute, section 56-7-1201(a). Consequently, we reject

the Garrisons’ argument that the statute supersedes the policy language. In light of our

conclusion that there is no coverage for the Garrisons’ emotional distress claim, we need not

decide whether the “Each Person” provision in the policy limits their recovery.

11

In Flax, we observed:

[The] emotional injuries alleged by [the plaintiff] are not parasitic to the minor

[physical] injuries she sustained in the accident but rather are the result of witnessing

the death of her child. Even if [the plaintiff] had chosen to bring a claim for her

minor physical injuries, her NIED claim would remain a ‘stand-alone’ claim because

the emotional injuries sustained from witnessing the death of her child are completely

unrelated to any physical injuries she may have sustained.

Flax, 272 S.W.3d at 530.

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Conclusion

For the foregoing reasons, the judgment of the Court of Appeals is affirmed. The costs

of this appeal are taxed to the Garrisons and their surety, for which execution may issue if

necessary.

____________________________________

CORNELIA A. CLARK, CHIEF JUSTICE

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