noting the lack of clarity in the cases discussing the requirement that direct physical impact accompany emotional distress before it meets the definition of bodily injury
How later courts described this case
- noting the lack of clarity in the cases discussing the requirement that direct physical impact accompany emotional distress before it meets the definition of bodily injury
Written by the judges who cited it.
The opinion
CRONE, Judge,
dissenting.
I commend Judge Barnes on his scholarly survey of our supreme court's NIED jurisprudence, and I agree with his assessment that it seems "slightly incongruous that persons having NIED claims arising in a Shuamber-type seenario may be entitled to recover UM benefits for 'bodily injury,, but those having equally valid NIED claims arising in a Groves-type scenario are not so entitled." Op. at 810.
That said, I respectfully disagree with his conclusion that the Taeles "did not sustain any direct impact' in the accident that killed their daughter" and that therefore their NIED claims against Figueroa "arise under the Groves rule, not the Shu-amber direct impact' test[.]" Id. at 308. In Conder v. Wood, 716 N.E.2d 432 (Ind.1999), our supreme court held that Wood, the plaintiff, "sustained the requisite direct impact necessary to maintain" an NIED action when she "pounded on the side" of the defendant's truck, which had "struck and knocked down" her friend, "in a frantic attempt to get the driver to stop before the truck crushed her companion." Id. at 483 . In so holding, the court stated,
The modified impact rule maintains the requirement of a direct physical impact. However, the impact need not cause a physical injury to the plaintiff and the emotional trauma suffered by the plaintiff meed not result from a physical injury caused by the impact....
.... In modifying the impact rule in Shuamber, we recognized the diminish, ed significance of contemporaneous physical injuries in identifying legitimate claims of emotional trauma from the mere spurious. Rather, "direct impact" is properly understood as the requisite measure of "direct involvement" in the incident giving rise to the emotional trawma. Viewed in this context, we find that it matters Kittle how the physical impact occurs, so long as that impact arises from the plaintiff's direct involvement in the tortfeasor's negligent conduct.
Id. at 484-35 (emphases added; footnote omitted).
Here, the designated evidence indicates that a piece of debris from the collision *312 that killed the Taeles' daughter struck and cracked the windshield of the Taeles' vehicle. In my view, this is sufficient to establish a "direct impact" for purposes of the modified impact rule. I can see no meaningful difference between the impact sustained by Wood (an entirely fortuitous pounding on the side of the defendant's truck) and the impact sustained by the Taeles (an equally fortuitous striking of their windshield by a piece of accident debris). The fact that Wood touched the truck with her hand seems to me to be a purely artificial and arbitrary distinction. 5 Cf. Espinoza v. Thomas, 189 Mich.App. 110, 119 , 472 N.W.2d 16 (1991) ("[I]f all other requisites of a battery against the plaintiff are satisfied, contact with the car the plaintiff occupies is sufficient to establish a battery.").
The critical commonality here is that both Wood and the Taeles personally witnessed the tragic accidents that killed their friend and daughter, respectively, and thus were "directly involved" in the tortfeasors' negligent conduct. No reasonable person could characterize their claims of emotional distress as spurious. Based on the foregoing, I would hold that the Taeles' emotional distress constitutes "bodily injury" for purposes of State Farm's UM policy, reverse the trial court's grant of summary judgment in favor of State Farm, and remand for further proceedings.
. At the risk of appearing quixotic, I must reiterate my belief that
the time has come to clear the decks of the so-called "impact rule" and ... allow the tort of negligent infliction of emotional distress to stand on its own inherent elements. If we trust jurors to determine whether a criminal defendant should live or die, then we should consider them capable of deciding whether a claimant's serious emotional trauma is both legitimate and reasonable, without imposing any artificial impediment to recovery.
Ketchmark v. NIPSCO, 818 N.E.2d 522, 526-27 (Ind.Ct.App.2004) (Crone, J., dissenting).