[Cite as Grange Ins. Co. v. Sawmiller, 2014-Ohio-1482.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              AUGLAIZE COUNTY



GRANGE INSURANCE COMPANY,

        PLAINTIFF-APPELLEE,

        v.                                                CASE NO. 2-13-19

BRADLEY O. SAWMILLER, ET AL.,

        DEFENDANTS-APPELLEES,
        -AND-                                             OPINION

SANDRA S. DIERINGER, ET AL.,

        DEFENDANTS-APPELLANTS.



                Appeal from Auglaize County Common Pleas Court
                           Trial Court No. 2012-CV-51

                                     Judgment Affirmed

                              Date of Decision: April 7, 2014




APPEARANCES:

        J. Alan Smith for Appellants, Sandra and Michael Dieringer

        Michael W. Sandner for Appellee, Grange Insurance Company
Case No. 2-13-19


PRESTON, J.

          {¶1} Defendants-appellants, Sandra S. Dieringer (“Sandra”) and Michael

Dieringer (“Michael”) (collectively “the Dieringers”), appeal the Auglaize County

Court of Common Pleas’ grant of summary judgment declaring that Sandra’s

posttraumatic stress disorder (PTSD) was not covered under the automobile

insurance policy issued by plaintiff-appellee, Grange Insurance Company

(“Grange”). Because “bodily injury” as defined in the Grange policy does not, as

a matter of law, include PTSD or physical symptoms stemming therefrom, we

affirm.

          {¶2} On September 8, 2010, Nancy Hertenstein (“Nancy”) and her sister,

Sandra, were walking side-by-side westbound on Parkway Drive in St. Marys

Township, in Auglaize County, Ohio. Defendant-appellee, Bradley O. Sawmiller

(“Sawmiller”), a minor, was driving a 1997 Chevrolet Silverado truck in the same

direction on the same roadway at an excessive speed while texting his girlfriend.

Sawmiller struck and killed Nancy with his truck. Sandra was not struck but

witnessed the accident and its resulting effect on Nancy, suffering severe

emotional distress thereby.

          {¶3} In an earlier case, on April 13, 2011, the Dieringers filed a complaint

against Sawmiller; Sawmiller’s parents, Dana Gilbert (“Dana”) and Gregory

Sawmiller; and, Motorists Mutual Insurance Company (“Motorists Mutual”), the


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Dieringers’ automobile insurer.       Sandra’s claims stemmed from the severe

emotional distress and PTSD she suffered as a result of the accident. Michael

asserted a derivative claim for loss of consortium.

       {¶4} Grange—Dana’s automobile insurer, who covered Sawmiller—filed

a motion to join the case, but the trial court denied the motion.

       {¶5} Motorists Mutual filed a motion for summary judgment, arguing that

its policy covers only “bodily injuries,” and “bodily injuries” do not include

emotional distress and PTSD.

       {¶6} Sandra, on the other hand, argued that PTSD caused physical

injuries to the brain falling within the term “bodily injury.” Sandra submitted

several medical studies and reports regarding PTSD-related physical injuries. She

also submitted an affidavit from Dr. Joel S. Steinburg, a medical doctor certified in

psychiatry and internal medicine, who opined that Sandra suffered from PTSD and

“Major Depressive Disorder, Single Episode, Moderate” as a result of witnessing

her sister’s death on September 8, 2010. Dr. Steinburg based this opinion on his

review of witnesses’ statements, the accident report, and tests he conducted on

Sandra during a two-hour-and-twenty-minute visitation on August 2, 2011.

       {¶7} Dr. Steinburg further opined that Sandra’s PTSD was a “bodily

injury” because PTSD:       causes brain cell damage and objectively verifiable

physical injury to the human brain; shortens the life expectancy of persons who


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suffer from it; causes atrophy of the memory circuits (hippocampal gyrus); and, is

associated with the development of a number of other somatic (bodily) problems,

such as the premature development of coronary artery disease and other

conditions.

       {¶8} On February 7, 2012, the trial court concluded that PTSD was not a

“bodily injury” under the Motorists Mutual policy. Sandra then appealed that

decision to this Court. Dieringer v. Sawmiller, 3d Dist. Auglaize No. 2-12-04,

2012-Ohio-4880 (“Sawmiller I”).

       {¶9} On February 10, 2012, following the trial court’s decision in favor of

Motorists Mutual, Grange filed a separate declaratory judgment action, which is

the present case before this Court, asking the trial court to declare that Sandra was

not entitled to recover under its policy because its policy also covers only “bodily

injuries.” Grange, like Motorists Mutual, argued that “bodily injury” does not

include PTSD-related conditions. (Doc. No. 1).

       {¶10} Grange filed a motion for summary judgment based on the trial

court’s earlier decision that PTSD-related conditions were not “bodily injuries”

under the Motorists Mutual policy. (Doc. No. 42). In response, Sandra filed

another affidavit by Dr. Steinburg opining that Sandra suffers from PTSD, and,

based upon his examination of Sandra and the medical literature, Sandra suffered a

“bodily injury” as that term is used in the Grange policy. (Doc. No. 45, attached).


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      {¶11} On October 22, 2012, we released Sawmiller I. 2012-Ohio-4880.

There, we first noted that several other districts have held that PTSD-related

injuries are not “bodily injuries” under automobile insurance policies. Id. at ¶ 15.

We also found that the medical materials in the record demonstrated only that

PTSD may cause physical injury, but physical injury is not certain. Id. at ¶ 16.

We further concluded that Dr. Steinburg’s opinion that Sandra suffered physical

injury from her PTSD was not supported by any objective medical tests, such as

X-rays,   computed    tomography scans,       magnetic   resonance    imaging,   or

magnetoencephalography. Id. at ¶ 17. Finally, we noted that Dr. Steinburg did

not aver that Sandra suffered from any other physical effects from PTSD. Id.

      {¶12} On May 3, 2013, the trial court granted Grange summary,

declaratory judgment based on Sawmiller I. (Doc. No. 48).

      {¶13} On May 30, 2013, the Dieringers filed a notice of appeal, which was

assigned appellate case no. 2-13-19 and is now before this Court. (Doc. No. 51).

They raise two assignments of error.

                           Assignment of Error No. I

       The trial court erred by granting summary         judgment because
       general issues of material fact existed as to     whether appellant
       suffered bodily injury due to the affidavit       of Dr. Steinburg,
       which offered the unopposed opinion that          Sandra Dieringer
       sustained bodily injury.




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      {¶14} The Dieringers argue in their first assignment of error that Dr.

Steinburg’s affidavit created a genuine issue of material fact as to whether Sandra

sustained a “bodily injury” under the Grange policy, because he averred that

Sandra suffered from PTSD, and the PTSD caused physical damage to her brain.

      {¶15} An appellate court reviews a summary judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th

Dist.1999). Accordingly, a reviewing court will not reverse an otherwise correct

judgment merely because the lower court utilized different or erroneous reasons as

the basis for its determination.     Diamond Wine & Spirits, Inc. v. Dayton

Heidelberg Distr. Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d Dist.),

citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d

217, 222 (1994).

      {¶16} Summary judgment is appropriate when, looking at the evidence as a

whole: (1) there is no genuine issue as to any material fact, and (2) the moving

party is entitled to judgment as a matter of law. Civ.R. 56(C). In conducting this

analysis the court must determine “that reasonable minds can come to but one

conclusion and that conclusion is adverse to the party against whom the motion for

summary judgment is made, [the nonmoving] party being entitled to have the

evidence or stipulation construed most strongly in the [nonmoving] party’s favor.”




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Id. If any doubts exist, the issue must be resolved in favor of the nonmoving

party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 359 (1992).

       {¶17} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). In doing so, the

moving party is not required to produce any affirmative evidence, but must

identify those portions of the record which affirmatively support his argument. Id.

at 292. The nonmoving party must then rebut with specific facts showing the

existence of a genuine triable issue; he may not rest on mere allegations or denials

of his pleadings. Id.; Civ.R. 56(E).

       {¶18} “Bodily injury” is defined in the Grange policy as “bodily harm,

sickness or disease, including death that results.” This definition is identical to the

definition of “bodily injury” in the Motorists Mutual policy in Sawmiller I.

(Grange Policy, Doc. No. 1, attached); Sawmiller I at ¶ 3. The only difference

between Sawmiller I and this case is the extent of Dr. Steinburg’s averments in

support of Sandra’s claim. In our prior case, we summarized Dr. Steinburg’s

affidavit as follows:

       Dr. Steinberg’s affidavit indicated that on August 2, 2011, he

       “performed a comprehensive psychiatric evaluation” of Sandra that

       lasted two hours and 20 minutes. (Docket No. 51. Exhibit 1, p. 1).


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      He also indicated that Sandra underwent four psychological tests,

      took seven written tests regarding her emotional health, and

      answered a health questionnaire. Dr. Steinberg also stated that he

      reviewed the accident report and Motorists Mutual’s motion for

      summary judgment and its recitation of the Policy’s definition of

      bodily injury.

           Based on these items, Dr. Steinberg attested that as a result of

      Sandra’s witnessing the accident, she “is suffering from significant

      psychiatric symptomatology [and] has psychiatric problems she

      never had before September 8, 2010, including my diagnosis that she

      is suffering from Posttraumatic Stress Disorder * * *.” Id. at 2-3.

      Dr. Steinberg went on to state that Sandra’s symptoms amount to a

      bodily injury under the Policy because PTSD causes the following

      physical harms:

           [PTSD] causes brain cell damage and objectively verifiable

           physical injury to the human brain;

           [PTSD] shortens the life expectancy of persons who suffer

           from it;

           [PTSD] causes atrophy of the memory circuits (hippocampal-

           gyrus);


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            [PTSD] is associated with the development of a number of

            other somatic (bodily) problems, such as the premature

            development of coronary artery disease and other conditions.

            Id. at 3.

Sawmiller I at ¶ 7-8.

       {¶19} We began our analysis in Sawmiller I by noting that several districts

had already concluded that “bodily injury,” as defined in insurance policies similar

to the Motorists Mutual policy, does not include emotional or mental distress. Id.

at ¶ 15. We then noted that Dr. Steinburg’s affidavit, nevertheless, did not create

an issue of material fact whether Sandra suffered a “bodily injury,” because there

was no evidence from which he could conclude that Sandra actually suffered a

physical injury. Id. at ¶ 17. In particular, we noted that Sandra did not have an X-

ray, computed tomography scan, MRI, or magnetoencephalography and that

“without results from these scans, there is no evidence that Sandra has suffered

any neuroanatomical changes, i.e. bodily injuries as a result of her PTSD.” Id.

Dr. Steinburg also did not aver that Sandra had suffered any of the other possible

physical effects from PTSD.      Id.   We concluded by saying “[I]n sum, the

Dieringers presented evidence that PTSD has the potential to cause physical

injuries. However, they failed to present any evidence that Sandra herself was

suffering from PTSD-related physical injuries.” Id. at ¶ 18. Because the affidavit


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in Sawmiller I did not indicate that Sandra herself suffered from a PTSD-related

physical injury, we did not need to decide the broader issue of whether PTSD-

related injuries were included within the policy definition of “bodily injury.”

       {¶20} Dr. Steinburg’s affidavit in this case includes the same averments he

made in Sawmiller I, but he additionally avers that Sandra “suffered a physical

injury and physical damage to her brain” and “suffered the destruction or

deterioration of her brain cells” as a direct and proximate result of witnessing and

perceptually experiencing the accident. (Doc. No. 45, Ex. 1). At oral argument,

the Dieringers’ counsel stated that Dr. Steinburg modified his affidavit to address

the factual deficiency we noted in Sawmiller I—that Sandra, in fact, suffered from

a PTSD-related physical injury.      Much of the Dieringers’ brief and the oral

argument focused on whether Dr. Steinburg could offer this medical opinion based

on the evidence in the record. We decline to go down that path. Instead, we elect

to decide here what we declined to decide in Sawmiller I: whether “bodily injury”

defined as “bodily harm, sickness or disease, including death that results” includes

a PTSD-related injury. We answer this question “no.”

       {¶21} “‘An insurance policy is a contract whose interpretation is a matter

of law.’” Lager v. Miller-Gonzalez, 120 Ohio St.3d 47, 2008-Ohio-4838, ¶ 15,

quoting Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241 (1978), paragraph

one of the syllabus. “Contract terms are to be given their plain and ordinary


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meaning.” Id., citing Gomolka v. State Auto. Mut. Ins. Co., 70 Ohio St.2d 166,

167-168 (1982).

       {¶22} As early as 1938, the Ohio Supreme Court concluded that “bodily

injury,” is “commonly and ordinarily used to designate an injury caused by

external violence”; and therefore, should be “limited to bodily injuries resulting

from physical or external forces known as accidents.”        Burns v. Employers’

Liability Assur. Corp. Ltd., 134 Ohio St. 222, 232-233 (1938). In 1989, the Ohio

Supreme Court, interpreting an automobile insurance policy, quoted Burns for the

proposition that: “‘[t]he words ‘bodily injury’ are commonly and ordinarily used

to designate an injury caused by external violence * * *.’” Tomlinson v. Skolnik,

44 Ohio St.3d 11, 14 (1989) (quoting Burns at 233), overruled on other grounds in

Schafer v. Allstate Ins. Co., 76 Ohio St.3d 353 (1996).

       {¶23} Following Tomlinson v. Skolnik, multiple appellate districts in Ohio,

interpreting the same or similar “bodily injury” definitions as in the Grange policy

here, have held that emotional/mental injuries, distress, or anguish are not “bodily

injuries.” Vance v. Sang Chong, Inc., 11th Dist. Lake No. 88-L-13-188, 1990 WL

174121, *3 (Nov. 9, 1990) (severe emotional distress/mental anguish); Riechard v.

Nationwide Mut. Fire Ins. Co., 2d Dist. Montgomery No. 13392, 1992 WL

361829, *2-3 (“[M]ost courts interpret the term ‘bodily’ as referring to the

physical or corporeal, as opposed to mental, aspects of a person. Accordingly,


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these courts hold that the term ‘bodily injury’ denotes actual physical harm arising

from corporeal contact.”) (emotional distress); Bowman v. Holcomb, 83 Ohio

App.3d 216, 219 (12th Dist.1992) (same); David v. Nationwide Mut. Ins. Co., 106

Ohio App.3d 298, 301-302 (1st Dist.1995) (same); Bernard v. Cordle, 116 Ohio

App.3d 116, 121 (10th Dist.1996) (emotional injury); Mains v. State Auto Mut.

Ins. Co., 120 Ohio App.3d 534, 540-541 (10th Dist.1997) (same); Craig v. Grange

Ins. Co., 2d Dist. Montgomery No. 17675, 1999 WL 999799, *3-4 (Nov. 5, 1999)

(emotional distress); Hawthorne v. Migoni, 5th Dist. Tuscarawus No. 2003 AP 07

0054, 2004-Ohio-378, ¶ 20 (same); Johnson v. Am. Family Ins., 160 Ohio App.3d

392, 2005-Ohio-1776, ¶ 25 (6th Dist.) (emotional injury).

       {¶24} In 1996, this Court favorably cited Bowman v. Holcomb, supra, for

the proposition that “bodily injury” in a commercial general liability policy does

not include emotional distress. Erie Ins. Co. v. Stalder, et al., 114 Ohio App.3d 1,

7 (3d Dist.1996).    That policy defined “bodily injury,” in relevant part, as

“physical harm, sickness or disease sustained by a person.” Id. at 6.

       {¶25} Several appellate courts have now specifically concluded that

“bodily injury,” defined identically or similarly as here, does not include PTSD-

related injuries.   Erie Ins. Co. v. Favor, 129 Ohio App.3d 644, 648 (10th

Dist.1998); Bentley v. Progressive Ins. Co., 4th Dist. Lawrence No. 02CA10,

2002-Ohio-6532, ¶ 29; Johnson v. Progressive Ins. Co., 8th Dist. Cuyahoga No.


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96068, 2011-Ohio-6448, ¶ 16-22.       See also Craig, 1999 WL 999979, at *3

(favorably citing Favor, supra); Clark v. Scarpelli, 2d Dist. Montgomery No.

17883, 1999 WL 1206662, *7 (citing Craig for the proposition that PTSD claims

are not “bodily injuries”). Furthermore, several appellate districts have concluded

that physical symptoms stemming from mental/emotional injuries, distress, or

anguish are also not included in the definition of “bodily injury.” Dickens v.

General Acc. Ins., 119 Ohio App.3d 551, 553 (8th Dist.1997); Migoni, 2004-Ohio-

378, at ¶ 19; Dunn v. North Star Resources, Inc., 8th Dist. Cuyahoga No. 79455,

2002-Ohio-4570, ¶ 35-40; Link v. Nationwide Ins. Co., 10th Dist. Franklin No.

01AP-824, 2002 WL 233616, *4-5 (Feb. 19, 2002); Westfield Ins. Co. v.

Porchervina, 11th Dist. Lake No. 2008-L-025, 2008-Ohio-6558, ¶ 23.

      {¶26} In light of the large body of longstanding case law, we join our sister

appellate districts and hold that PTSD and physical symptoms stemming therefrom

are not within the definition of “bodily injury” as defined herein. Because the

Dieringers’ claims all arose from Sandra’s PTSD and her physical symptoms

stemming therefrom, their claims are not covered under the Grange policy; and

therefore, the trial court did not err by granting Grange summary, declaratory

judgment.

      {¶27} The Dieringers’ first assignment of error is, therefore, overruled.




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                           Assignment of Error No. II

       In the alternative, the trial court erred in granting summary
       judgment as it weighed the evidence when it made the
       determination that the affidavit of Dr. Steinburg was not
       sufficient because it did not contain reference to the results of an
       x-ray, CT scan, MRI, or magnetoencephalography.

       {¶28} In their second assignment of error, the Dieringers argue that the

trial court impermissibly weighed Dr. Steinburg’s affidavit and erroneously

determined that it was not sufficiently supported by reference to an x-ray, CT

scan, MRI, or magnetoencephalography.

       {¶29} The Dieringers’ second assignment of error is moot in light of our

conclusion that PTSD and physical symptoms stemming therefrom do not fall

under the definition of “bodily injury” provided in the Grange policy. Therefore,

we decline to address this assignment of error. App.R.12(A)(1)(c).

       {¶30} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

ROGERS, J., concurs.

/jlr




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SHAW, J., dissents.

       {¶31} I respectfully dissent.

       {¶32} The affidavit at issue in this case states in pertinent part:

       7. Based upon the parameters as previously set forth above it
       is my opinion within a reasonable degree of medical probability
       that Sandra Dieringer suffered physical injury and physical
       damage to her brain as a direct and proximate result of
       personally witnessing and perceptually experiencing the
       automobile/pedestrian accident which occurred on September
       8, 2010, which resulted in the tragic death of Mrs. Dieringer’s
       sister, Nancy Hertenstein.

       8. Physical damage or physical injury to the brain is an
       injury that causes the destruction or deterioration of brain cells.
       It is my opinion, within a reasonable degree of medical
       probability that Sandra Dieringer suffered the destruction or
       deterioration of brain cells as a direct and proximate result of
       personally witnessing and perceptually experiencing the
       automobile/pedestrian accident which occurred on September
       8, 2010.

       {¶33} The policy language at issue defines “bodily injury” in relevant part

as “bodily harm, sickness or disease.” In virtually every other summary judgment

decision of this type, we have examined the specific words and language of the

contract, statute or insurance policy at issue and compared it to the specific words

and language of the affidavit or other testimony offered in order to determine

whether the contractual, statutory or policy language has been reasonably and

sufficiently invoked by the offered testimony. In other words, we look to the plain

and ordinary meaning of the language and presume in the case of an insurance


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policy that the intent of the parties is reflected in the language used in the policy.

See Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 219, 2003 Ohio-5849, citing

Kelly v. Med. Life Ins. Co. (1987), 31 Ohio St.3d 130 (1987), and Alexander v.

Buckeye Pipe Line Co., 53 Ohio St.2d 241 (1978). This was the analysis we

employed in Sawmiller I and in fact, it appears that the affidavit now before us

was redrafted in response to Sawmiller I, in order to more precisely address the

specific language used to define “bodily injury” in this insurance policy.

       {¶34} Whether the affidavit now before us has been artificially “tweaked”

to conform to the concerns we raised in Sawmiller I or whether the substantive

allegations of the affidavit - particularly with regard to the sequence and causation

of the brain cell injury - can be established by the requisite degree of scientific or

medical proof at trial remains to be seen. However, these are issues to be resolved

in the trial court, not the court of appeals. At this stage of the proceedings, the

allegations of paragraphs seven and eight of the affidavit on their face, referring to

“physical injury and physical damage to her brain” and “destruction or

deterioration of    brain cells,” unequivocally meet any reasonable, plain and

ordinary meaning of the words “bodily harm, sickness or disease” as used in the

policy. As such, if credibly proven by the testimony at trial, the allegations of this

affidavit would clearly establish the proximate causation of “bodily injury” as

defined in this policy.


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        {¶35} Perhaps in order to avoid this reality, the majority now announces it

will depart from the “actual language analysis” used in Sawmiller I and in our

prior summary judgment decisions. Instead, the majority relies upon a broad

public policy, well established in Ohio case law, (albeit perhaps based on older

medical science), that has traditionally not permitted recovery for “emotional” or

alleged brain damage where there is no “concurrent physical injury.” And, in

order to avoid the implication raised in the affidavit that medical science may be

evolving as to the proximate and immediate causation of the brain cell damage, the

majority itself seems to “tweak” the existing case law to now mean that “bodily

harm, sickness or disease” can occur only where there is brain injury via some

external physical blow to the head as opposed to an internal assault to one’s

perceptions, as in witnessing the traumatic death of a family member.

        {¶36} However, such a distinction or limitation is not remotely suggested

by the words “bodily harm, sickness or disease” used to define “bodily injury” in

this case. Moreover, I am not convinced that any of the case authority relied upon

by the majority is based upon expert testimony of the nature of the specific expert

opinion testimony presented in paragraphs seven and eight of the affidavit in this

case.

        {¶37} In sum, it is my view that the approach now taken by the majority

goes beyond the proper role of this court in determining a question of summary


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judgment. I do not believe we should abandon our traditional approach, which has

until now been based solely upon a sound and practical examination of the actual

language used in the insurance policy and the actual language used in the affidavit,

without regard to our own view of the preferred public policy merits of the issue.

       {¶38} Based on the language of the affidavit and the language of the

insurance policy in this case, I would sustain the assignment of error and remand

the matter for trial to determine whether plaintiff can establish that witnessing the

accident in this case proximately caused the brain cell injuries as alleged in the

affidavit, thereby constituting “bodily injury” as defined by the insurance policy.

/jlr




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