                                                                                [PUBLISH]

                    IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                      FILED
                                                                 U.S. COURT OF APPEALS
                              ________________________             ELEVENTH CIRCUIT
                                                                        01/07/2000
                                     No. 99-2034                    THOMAS K. KAHN
                              ________________________                   CLERK
                          D. C. Docket No. 97-01806-CV-T-17A

ALLSTATE INSURANCE COMPANY,

                                                                          Plaintiff-Appellee,

                                         versus

MARY A. CLOHESSY, et al.,

                                                                      Defendants-Appellants.

                              ________________________

                       Appeal from the United States District Court
                           for the Middle District of Florida
                            _________________________
                                   (January 7, 2000)


Before ANDERSON, Chief Judge, TJOFLAT, Circuit Judge, and FAY, Senior Circuit Judge.

ANDERSON, Chief Judge:
       On March 22, 1993, Mary Clohessy and her sons Brendan and Liam Clohessy were walking

together near their home in New Haven, Connecticut. As they were attempting to cross a

street–Liam on his mother’s right and Brendan on his mother’s left–an automobile driven by an
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                                                                      U.S. COURT OF APPEALS
uninsured motorist struck and killed Brendan. Mary and Liam witnessed ELEVENTH but were not
                                                                         the accident, CIRCUIT
                                                                               01/07/2000
struck by the automobile.                                                 THOMAS K. KAHN
                                                                                 CLERK
        The Clohessy family had an automobile insurance contract (“Policy”) with Allstate Insurance

Company (“Allstate”), which included uninsured motorist coverage. The insurance contract was

formed in Florida. The Policy contained certain limits of liability; in particular, it stated:

       Uninsured Motorist Insurance – Coverage . . .
       We [Allstate] will pay damages for bodily injury, sickness, disease or death which
       a person insured is legally entitled to recover from the owner or operator of an
       uninsured auto. Injury must be caused by accident and arise out of the ownership,
       maintenance or use of an uninsured auto. We will not pay any punitive or exemplary
       damages.
              ....
       Limits of Liability
              ....
       (a) The coverage limit stated on the declaration page 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, sickness,
               disease or death.

               When the limits of two or more insured autos are stacked, our maximum limit
               of liability for all damages to one person in any one accident is the sum of the
               “each person” limit for each insured auto shown on the declarations page.

               (2) “each accident” is the maximum that we will pay for damages arising out
               of bodily injury to two or more persons in any one motor vehicle accident.

               When the limits of two or more insured autos are stacked, subject to the limit
               for “each person”, our maximum limit of liability for all damages to two or
               more persons in any one accident is the sum of the “each accident” limit for
               each insured auto shown on the declarations page.
After the appropriate stacking, the Policy’s “each person” coverage limit was $200,000 and “each

accident” coverage limit was $600,000.

        Under the Policy’s uninsured motorist coverage, the Estate of Brendan Clohessy made a
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                                                                     U.S. COURT OF APPEALS
claim and received $200,000, the “each person” limit. Under the Policy, ELEVENTH CIRCUIT
                                                                        Mary and Liam Clohessy
                                                                               01/07/2000
(“the Clohessys”) also made a claim based on the emotional distress resulting from witnessing the
                                                                         THOMAS K. KAHN
                                                                                CLERK
collision and Brendan’s death.

       Allstate brought suit against the Clohessys for declaratory judgment asking the district court

to declare that the Policy’s limits of liability have been exhausted and that the Clohessys are not

entitled to recover anything further under the Policy. Allstate argued that the Clohessys’ insurance

claims, which are based on their claims against the uninsured motorist for negligent infliction of

emotional distress, are subject to the $200,000 “each person” limit which was applied to and

exhausted by the claim of Brendan Clohessy’s estate. Applying Florida law,1 the district court

concluded that:

       [A] Florida court considering this case would interpret the automobile insurance
       policy at issue according to this rule that reason dictates is correct, that is, that the
       per-person limit of liability apply [sic] to bystander emotional distress claims.

Allstate Ins. Co. v. Clohessy, 32 F.Supp.2d 1333, 1337 (1998). Accordingly, the district court

declared that the insurance policy limits have been exhausted and the Clohessys are not entitle to

recover anything further under the policy. See id.



       1
          In particular, the district court followed the command of Erie R.R. v. Tompkins, 304
U.S. 643 (1938), and applied the conflicts of law rule of the state in which it is located, in this
case Florida. Applying that Florida law, the district court concluded that under Sturiano v.
Brooks, 523 So.2d 1126 (Fla. 1988), the terms of an automobile insurance policy are governed
by the law of the jurisdiction in which the contract was formed, again in this case Florida. See
Allstate Ins. Co. v. Clohessy, 32 F.Supp.2d 1333, 1335 (M.D.Fla. 1998). We agree. Florida law
“determines the rights and risks of the parties to automobile insurance policies on the issue of
coverage.” Lumbermens Mut. Cas. Co. v. August, 530 So.2d 293, 295 (Fla. 1988).
       The Clohessys appeal to this Court arguing that the district court incorrectly resolved the

issue of whether their claims are subject to the “each person” limit which was exhausted by the pay

out to the Estate of Brendan Clohessy or instead subject to their own “each person” limit. The
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                                                                         U.S. COURT OF APPEALS
parties have not cited nor have we uncovered any controlling Florida case on this issue.CIRCUIT
                                                                            ELEVENTH Moreover,
                                                                                  01/07/2000
when faced with the same issue, courts in other states have split on its proper resolution. KAHN
                                                                             THOMAS K. Compare,
                                                                                    CLERK
e.g., Triechel v. State Farm Mut. Auto. Ins. Co., 930 P.2d 661 (Mont. 1997) (holding that a wife’s

claim for emotional distress resulting from witnessing her husband being hit and killed by a car was

not limited by the per person limit applied to her husband); Crabtree v. State Farm Ins. Co., 632

So.2d 736, 738 (La. 1994) (“[W]e conclude the wife’s mental anguish claim is not subject to the

single person policy limit regardless of whether her mental anguish ‘results from’ or ‘derives from’

her husband’s bodily injuries.”); and Pekin Ins. Co. v. Hugh, 501 N.W.2d 508 (Iowa 1993) (holding

that insured’s claim for bystander emotional distress was based on independent bodily injury and,

therefore, subject to the per occurrence limit rather than the per person limit of the policy) with

McNeill v. Metro. Property and Liability Ins. Co., 650 N.E.2d 793, 795 (Mass. 1995) (“[T]he

plaintiff’s emotional distress claim is a by-product of and entirely dependent upon the bodily injury

to his daughter. The claims thus are subject to the ‘per person’ limit.”)(internal quotations omitted)

and Gocha v. Shimon, 573 N.W.2d 218, 219 (Wis. Ct. App. 1997) (“The unambiguous language of

the ‘each person’ limitation in State Farm’s policy consolidates the bodily injuries to one person

with all injuries and damages to others which result from the one person’s bodily injuries. Because

the emotional stress of the Gochas would not have occurred but for the injury to Kyle, the ‘each

person’ limitation is applicable.”). Consequently, we seek the assistance of the Supreme Court of

Florida in resolving this issue.
       Having concluded that this case involves an unanswered question of state law that is

determinative of this appeal and having found no clear, controlling precedent in the decisions of the

Supreme Court of Florida, we certify the following question of law to the Supreme Court of Florida
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                                                                       U.S. COURT OF APPEALS
for instructions:                                                         ELEVENTH CIRCUIT
                                                                               01/07/2000
        ARE THE EMOTIONAL DISTRESS DAMAGES SUSTAINED BY MARYK. KAHN        THOMAS AND LIAM
                                                                                CLERK
        CLOHESSY DAMAGES ARISING OUT OF THE BODILY INJURY TO BRENDAN

       CLOHESSY, I.E., DAMAGES SUSTAINED AS A RESULT OF THAT BODILY INJURY,

       AND THEREFORE SUBJECT TO THE SINGLE, ALREADY-REACHED, EACH

       PERSON LIMIT APPLIED TO BRENDAN CLOHESSY?

       In certifying this question, we do not intend the particular phrasing of it to limit the court in

its consideration of the problem posed by the case. In order to assist the court's consideration of the

case, the entire record, along with the briefs of the parties, shall be transmitted to the court.

QUESTION CERTIFIED.
