Elliott v. Allstate Insurance Co.

FRIEDLANDER, Judge,

dissenting.

I believe the trial court correctly granted partial summary judgment in favor of Allstate, and therefore respectfully dissent from the majority's decision to reverse that ruling.

The majority lays out its interpretation of the development of the tort of negligent infliction of emotional distress in Indiana law, and then applies that analysis to two situations, one that this court has addressed before, and one that it has not. The first involves the viability of a claim for negligent infliction of emotional distress where the plaintiff's claimed emotional trauma manifests itself in physical symptoms, but the alleged emotional trauma stems not from his or her own physical injuries, but instead from viewing someone else's. This is the essence of Austin's claim, and the majority cites State Farm Mut. Auto. Ins. Co. v. Jakupko, 856 N.E.2d 778 (Ind.Ct.App.2006) as authority for ruling that it is a viable claim in this case. The second situation is Amber's, ie., one in which the plaintiff's claimed emotional trauma does not manifest itself in physical symptoms. This is a question of first impression and the majority decides it in favor of Amber and future plaintiffs similarly situated. Although I harbor reservations about the majority's analyses of those issues, especially with respect to Amber's claim, I would not reach those issues, because I subscribe to the views expressed in Allstate Ins. Co. v. Tozer, 392 F.3d 950 (7th Cir.2004) to the effect that the applicable limits under this insurance policy have been exhausted.

In Tozer, siblings sought to recover damages for emotional distress they allegedly suffered after witnessing their brother's injuries (from which he eventually died) in a traffic accident-an accident in which they were passengers in the same car as the deceased. The insurance policy in that case contained limits of $100,000 for each person and $300,000 for each accident. It also provided, "The limit stated for each person for bodily injury is our total limit of liability for all damages because of bodily injury sustained by one person, including all damages sustained by anyone else as a result of that bodily *708 injury." Id. at 953 (emphasis in original). The corresponding clause in the instant policy is substantially similar and states, "The coverage limit shown on the Policy Declarations for: 1. 'each person' is the maximum that we will pay for damages arising out of bodily injury to one person in any one motor vehicle accident, including damages sustained by anyone else as a result of that bodily injury." Appellant's Appendix at 97. The surviving siblings in Tozer sought to recover damages for negligent infliction of emotional distress. The insurer denied coverage on the ground that it had paid the policy limits for the decedent's injuries and that the siblings' claims "resulted from" that injury within the meaning of the policy language. Therefore, the insurance company claimed, it had already paid the "each person" limit of the policy in that respect. The Tozer court agreed, and in so doing, decided that emotional distress is not a "bodily injury" within the meaning of the policy, but instead is damage sustained by a third person as a result of another person's bodily injury or death. The court concluded, "Because the policy caps Allstate's liability for all damages 'resulting from' [the decedent's] injuries, and [the surviving siblings'] emotional distress result from his injuries, the insurer's liability for these claims is exhausted." Id. at 95.

I believe Tozer was correctly decided on this point and would apply it here. The majority, however, rejects Tozer in favor of Jalkkupko, which reached a contrary conclusion on the question of whether emotional distress is a bodily injury within the meaning of policy language such as is before us here. We are left, then, to decide which view is better. I part ways with the majority and conclude that emotional distress under these cireumstances is not a bodily injury within the meaning of the policy, and therefore that Austin's and Amber's claims for emotional distress "result from" Amanda's injuries. Having already paid the policy limits for Amber's injuries, Allstate's liability on claims derivative of those injuries is exhausted. See Allstate Ins. Co. v. Tozer, 392 F.3d 950 . On this basis, I would affirm the grant of partial summary judgment in favor of Allstate.