                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                   May 2, 2011 Session

           JERRY GARRISON, et al., v. ANDY E. BICKFORD, et al.

                  Appeal from the Circuit Court for Bledsoe County
                     No. 4236     Hon. Buddy D. Parry, Judge


                No. E2010-02008-COA-R9-CV-FILED-JULY 29, 2011




Plaintiffs brought this action for the wrongful death of their son, and also for their damages
arising from "negligent infliction of emotional distress". State Farm Mutual Insurance
Company filed a Motion for Partial Summary Judgment on the grounds that its policy
afforded no coverage for a negligent infliction of emotional distress. The Trial Court
overruled the Motion but proposed a Rule 9 appeal, which this Court granted. We reverse
the Trial Court on this issue and grant the summary judgment motion.


    Tenn. R. App. P.9 for Interlocutory Appeal; Judgment of the Circuit Court
                            Reversed and Remanded.


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., J., and D. M ICHAEL S WINEY, J., joined.


Joseph B. Klockenkemper, II., Nashville, Tennessee, for the Unnamed Defendant/Appellant,
State Farm.

Joseph H. Crabtree, Jr., Athens, Tennessee, for the appellees, Jerry Garrison and Mary
Garrison.
                                              OPINION

                                             Background


        The case arises from an automobile accident that occurred on June 9, 2006 that caused
the death of Michael Garrison, age 18. The accident occurred near the Garrison home, when
a motor vehicle operated by defendant Andy Bickford struck a minibike ridden by the
decedent, Michael Garrison. Michael’s father, mother and brother were not present at the
time of impact but they allege that they came to the scene of the accident soon after it
happened and observed Michael’s body and the destroyed minibike. A wrongful death suit
was filed by Jerry and Martha1 Garrison against Andy Bickford and Rita Bickford, the
owners of the vehicle. Jerry, Martha and Daniel Garrison (hereinafter the “bystander
plaintiffs” ) asserted bystander claims for negligent infliction of emotional distress as a result
of the bodily injury and death of Michael. The Garrisons presented uninsured motorist
claims against the unnamed defendant State Farm Mutual Automobile Insurance Company
(State Farm) by serving a copy of the complaint on State Farm.

        In response to the wrongful death and the bystander claims for negligent infliction of
emotional distress, the insurer of the named defendant Andy Bickford paid the Garrison
plaintiffs $25,000.00 for the wrongful death claims and $25,000.00 for the negligent
infliction of emotional distress claims, which exhausted the liability limits of its policy. The
named defendant Andy Bickford was dismissed from the suit. Moreover, under the
uninsured motorist policy, the unnamed defendant State Farm paid $75,000.00 to Jerry and
Mary Garrison for the wrongful death claim, which State Farm represents is the “full extent
remaining of its “Each Person” limit of $100,000.00. The “Each Person” limit in the State
Farm policy provides:

        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 the bodily injury.

The State Farm policy defines bodily injury as follows:

        Bodily injury means bodily injury to a person and sickness, disease, or death that
        results from it.



        1
          Mrs. Garrison’s correct name is apparently “Mary” and she was incorrectly identified as “Martha”
in the suit.

                                                   -2-
        Pursuant to the settlement agreement, State Farm, Jerry and Mary Garrison dismissed
all claims for the bodily injury and wrongful death of Michael and all related claims of loss
of services, loss of consortium. The bystander claims for intentional infliction of emotional
distress were not dismissed.

        State Farm maintained that its payment of $75,000.00 exhausted the “Each Person”
policy limits applicable to the bodily injury and death of Michael Garrison including damages
sustained by other insureds as a result of the bodily injury and death of the decedent. The
Garrison plaintiffs disagreed with State Farm’s position regarding the application of the
“Each Person” provisions and claimed that their bystander negligent infliction of emotional
distress claims were not restricted to the “Each Person” limit for uninsured motorist coverage
applicable to the bodily injury to any one insured as set forth in the policy.

       State Farm then filed Motion for Summary Judgment, which plaintiffs opposed. The
Trial Court denied the Motion for Summary Judgment, but State Farm filed a Motion to Alter
or Amend the Order denying its Motion for Summary Judgment, and also filed a
Supplemental Motion for Summary Judgment. The Trial Court denied State Farm’s motions
and stated in its order that its denial of the motions was based on the reasoning expressed in
the Indiana case State Farm Mutual Automobile Insurance Co. v. Jakupko, 881 N.E.2d 654
(Ind.2008). Based on Jakupko, the Trial Court concluded as follows:

         . . . [t]he statutory provisions of Tenn. Code Ann. § 56-7-1201(a)2 are broader than
        the definition of “bodily injury” contained in the State Farm car policy, and therefore,
        despite language contained in the State Farm policy that the limit for uninsured
        motorist coverage shown under the “Each Person” limit is the most amount that will
        be paid “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 Court is of the opinion that said language is not enforceable to
        limit recovery in the present case to the single “Each Person” limit for uninsured
        motorist coverage as against claims of bystander negligent infliction of emotional
        distress.



        2
            Tenn. Code Ann. § 56-7-1201 (a), the uninsured motorist statute provides: “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. “


                                                       -3-
(emphasis supplied, footnote added).

      State Farm's Interlocutory Appeal was granted by this Court and the proceedings
below were stayed pending resolution of this Appeal.

                                Issue Presented for Review

       Whether the Trial Court erred in denying State Farm’s motions for summary judgment
       when, despite the definition of “Bodily Injury” contained in the policy, and despite
       the language set forth in the policy providing that the “Each Person” limit is the most
       that can be paid under uninsured motorist coverage for all damages resulting from
       bodily injury to any one insured “including all damages sustained by other insureds
       as a result of that bodily injury,” the trial court, under the uninsured motorist statute,
       did not enforce said terms of the policy regarding uninsured motorist coverage as
       against claims for bystander negligent infliction of emotional distress?

       The scope of coverage and the insurer's duty to defend are questions of law that may
appropriately be resolved by summary judgment when, as here, the relevant facts are
undisputed. American Indem. Co. v. Foy Trailer Rentals, Inc., No. W2000-00397-COA-R3-
CV, 2000 WL 1839131 at * 2 (Tenn. Ct. App. Nov. 28, 2000)(citing Standard Fire Ins. Co.
v. Chester O'Donley & Associates, Inc, 972 S.W.2d 1, 5 (Tenn. Ct. App. 1998); St. Paul Fire
and Marine Ins. Co. v. Torpoco, 879 S.W.2d 831, 834 (Tenn.1994)). Similarly, the
interpretation of written agreements is a question of law. Questions of law are reviewed by
this Court de novo on the record with no presumption of correctness afforded to the trial
court. Maggart v. Almany Realtors, Inc., 259 S.W.3d 700, 703 (Tenn. 2008)(citing Guiliano
v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999); Union Planters Nat'l Bank v. Am. Home
Assurance Co., 865 S.W.2d 907, 912 (Tenn. Ct. App.1993)).

                                          Discussion

        State Farm argues that under the State Farm uninsured motorist policy at issue
(hereinafter “the Policy”) no further uninsured motorist coverage is available regarding the
bystander negligent infliction of emotional distress claims of plaintiffs. It maintains that
because such bystander emotional distress claims are claims for emotional injury, they are
not claims for bodily injury under Tennessee law nor do such claims constitute bodily injury
claims as defined by the Policy. State Farm further contends that even if the bystander claims
for negligent infliction of emotional distress were compensable under the Policy, they would
be compensable as damages under the “Each Person” limit applicable to the bodily injury to
the decedent as the “Each Person” limit applicable to the decedent, by the terms of the Policy,
includes “all damages sustained by other insureds as a result of that bodily injury” to the

                                              -4-
decedent. State Farm justifies this stance based on the fact that it was the observation of the
decedent’s injuries after they occurred that caused plaintiffs to sustain emotional distress.

       Plaintiffs counter that the provisions of Tenn. Code Ann. §56-7-1201 (a) make the
Policy unenforceable to limit recovery to the single “Each Person” limit for uninsured
motorist coverage as against the plaintiffs’ claims of bystander negligent infliction of
emotional distress.

       The Policy provides uninsured motor vehicle coverage for “bodily injury” with
coverage limits of $100,000.00 “each person” and $300,000.00 “each accident”. “Bodily
injury” is defined as “bodily injury to a person and sickness, disease, or death that results
from it.” The uninsured motor vehicle coverage for bodily injury limits for “each person”
and “each accident” is set out defined in the Policy as follows:

       The limit shown under “Each Person” is the most we will pay for all damages
       resulting from bodily injury to any one insured 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.

(emphasis supplied in policy).

        It is undisputed that decedent as well as the bystander plaintiffs are insureds under the
policy. The fact that the decedent sustained bodily injury in the subject accident that resulted
in his death is also not in dispute. State Farm’s position is that bystander claims for negligent
infliction of emotional distress are not “bodily injury” under Tennessee law or under the
policy. It also contends that even if the bystander plaintiffs’ claims for negligent infliction
of emotional distress are claims for “damages” sustained by them as a result of their
witnessing the severe bodily injuries suffered by the decedent, their claims would not be
compensable under the statute because the “each person” limits of the policy of $100,000.00
limit was already met by the payment for the wrongful death claim.

       Plaintiffs argue that the Trial Court was correct when it found that the statutory
provisions of Tenn. Code Ann. § 56-7-1201 are broader than the definition contained in the
Policy and that the “each person” limits contained in the policy were not enforceable to limit
the bystander’s recovery for damages. Tenn. Code Ann. § 56-7-1201 provides:

       (a) Every automobile liability insurance policy delivered, issued for delivery or
       renewed in this state, covering liability arising out of the ownership, maintenance, or

                                               -5-
       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.

       (1) The limits of the uninsured motorist coverage shall be equal to the bodily injury
       liability limits stated in the policy.

       2) However, any named insured may reject in writing the uninsured motorist coverage
       completely or select lower limits of the coverage but not less than the minimum
       coverage limits in § 55-12-107. . . .

Tenn. Code Ann. § 56-7-1201(a)(1)(2)(emphasis added).

        We first must determine whether the claims of the bystander plaintiffs for negligent
infliction of emotional distress are covered by the Policy under the “each occurrence”
provisions of the Policy. If they are, we must then decide whether the “each person” limits
are applicable to the claims. Finally, if we find that the “each person” limit is applicable,
we are required to decide if the “each person” limits in the Policy is unenforceable because
it is contrary to the stated purpose of the Uninsured Motor Vehicle Act. The stated issues
appear to be one of first impression for Tennessee courts.

       We provided a comprehensive discussion of the legal principles governing the
interpretation of insurance policies in VanBebber v. Roach, 252 S.W.3d 279, 283-84 (Tenn.
Ct. App. 2007):

       Courts interpret insurance policies using the principles that guide the construction of
       other contracts. Am. Justice Ins. Reciprocal v. Hutchison, 15 S.W.3d 811, 814
       (Tenn.2000). The goal is to ascertain and enforce the intent of the contracting parties.
       In Tata v. Nichols, 848 S.W.2d 649 (Tenn.1993), the Supreme Court explained the
       analysis to be applied when construing insurance policies:

              Insurance contracts ... should be construed so as to give effect to the intention
              and express language of the parties. Words in an insurance policy are given
              their common and ordinary meaning. Where language in an insurance policy
              is susceptible of more than one reasonable interpretation, however, it is
              ambiguous. Where the ambiguous language limits the coverage of an insurance
              policy, that language must be construed against the insurance company and in

                                             -6-
              favor of the insured. [Tata] at 650 (citations and quotation marks omitted). See
              also Harrell v. Minn. Mut. Life Ins. Co., 937 S.W.2d 809, 814 (Tenn.1996).

       Questions regarding the interpretation of written contracts involve legal rather than
       factual issues. Brandt v. Bib Enters., Ltd., 986 S.W.2d 586, 592 (Tenn .Ct. App.1998).
       Furthermore, scope of coverage issues present questions of law. Pile v. Carpenter,
       118 Tenn. 288, 99 S.W. 360, 362 (1907). Hence, on these matters, our scope of
       review is de novo on the record with no presumption of correctness as to the trial
       court's conclusions of law. Rainey v. Stansell, 836 S.W.2d 117, 118 (Tenn. Ct.
       App.1992).

       Courts will look to the material contained within the four corners of the instrument
       to ascertain its meaning as an expression of the parties' intent. Bob Pearsall Motors,
       Inc. v. Regal Chrysler–Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn.1975). The words
       of the contract should be given their usual, natural, and ordinary meaning. St. Paul
       Surplus Lines Ins. Co. v. Bishops Gate Ins. Co., 725 S.W.2d 948, 951 (Tenn. Ct. App.1986).

       In determining whether the meaning of a contract is clear or ambiguous, courts apply
       the following principles. The language in dispute must be examined in the context of
       the entire agreement. Cocke County Bd. of Highway Commrs. v. Newport Utils. Bd.,
       690 S.W.2d 231, 237 (Tenn.1985). The language of a contract is ambiguous when its
       meaning is uncertain and when it can be fairly construed in more than one way.
       Farmers–Peoples Bank v. Clemmer, 519 S.W.2d 801, 805 (Tenn.1975). “A strained
       construction may not be placed on the language used to find ambiguity where none
       exists.” Id.

       Insurance policies are strictly construed in favor of the insured. Sturgill v. Life Ins.
       Co. of Georgia, 62 Tenn. App. 550, 465 S.W.2d 742, 744 (1970). If a contract of
       insurance is ambiguous and susceptible to two reasonable meanings, “the one
       favorable to the insured must be adopted.” Boyd v. Peoples Protective Life Ins. Co.,
       208 Tenn. 280, 345 S.W.2d 869, 872 (1961); Sturgill, 465 S.W.2d at 744.

VanBebber v. Roach at 283-84.

        The elements for a bystander’s claim for negligent infliction of emotional distress
when the bystander does not witness the actual accident that caused another’s injuries was
set forth in Eskin v. Bartee, 262 S.W.3d 727 (Tenn. 2008). In Eskin claims for negligent
infliction of emotional distress were made by two family members of a child who was
seriously injured in an automobile accident. The family members were not present at the
time of the accident but they alleged that they had sustained severe emotional injuries after

                                              -7-
they observed him lying on the pavement in a pool of blood a short time after the accident
had occurred. The insurance company moved for a partial summary judgment on the
negligent infliction of emotional distress claim because neither the injured child's mother nor
his brother had seen or heard the injury-producing accident. The motion was granted by the
trial court, but the Court of Appeals reversed and in an appeal to the Supreme Court, the
Supreme Court held that persons who observe an injured family member shortly after an
injury-producing accident may pursue a claim for negligent infliction of emotional distress.
Id. at 729-30 (Tenn. 2008).

        The Supreme Court reviewed the history of the tort of negligent infliction of
emotional distress, and then engaged in a detailed review of the development of bystander
claims of negligent infliction of emotional distress in Tennessee and set forth the following
criteria:

       When a plaintiff did not witness the injury-producing event, the cause of action for
       negligent infliction of emotional distress requires proof of the following elements: (1)
       the actual or apparent death or serious physical injury of another caused by the
       defendant's negligence, (2) the existence of a close and intimate 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 has been materially altered, and (4) the resulting serious or severe
       emotional injury to the plaintiff caused by the observation of the death or injury.

Id. at 739-40 (Tenn. 2008).

      Thus, the cause of action set forth by plaintiffs, bystander negligent infliction of
emotional distress, is well established in Tennessee.

        State Farm, however, contends that emotional distress is not “bodily injury” under
either Tennessee law or under the Policy, and thus, the Policy offers no coverage for
plaintiffs’ claims. The uninsured motor vehicle coverage for bodily injury limits for “each
person” and “each accident” is set out in the Policy as follows:

       The limit shown under “Each Person” is the most we will pay for all damages
       resulting from bodily injury to any one insured 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.



                                              -8-
        State Farm maintains that the adjective “bodily” means “of or pertaining to the body
in distinction from the mind” and does not encompass the emotional distress claims made by
the bystanders.

       We considered this issue in the context of a CGL policy3 in Am. Indem. Co. v. Foy
Trailer Rentals, Inc., W2000-00397-COA-R3-CV, 2000 WL 1839131 (Tenn. Ct. App. Nov.
28, 2000). The background for that case is that in an underlying suit, filed in federal court,
an employee sued her employer for the gender and racial discrimination alleging that she
sustained lost wages, embarrassment, humiliation, mental anguish, emotional pain and
suffering, and loss of enjoyment of life due to the hostile, abusive, and offensive work
environment created by the employer. Id. at * 1. The insurer filed a suit for declaratory
judgment in state court, asking the court to determine whether it had an obligation to defend
and indemnify the employer for the claims made in the employee’s federal suit and whether
the CGL policy provided coverage for the allegations made against the employer in the
federal suit. Id. at * 2. The insurer then filed a motion for summary judgment, which was
granted by the trial court upon a finding that the insurer did not have a duty to defend and
indemnify the insured in the federal suit and that the policy did not provide coverage for the
insured for the allegations made against it in the federal suit. We affirmed the trial court’s
action. Id.

       The policy in that case provided “[w]e will pay those sums that the insured becomes
legally obligated to pay as damages because of “bodily injury” or “property damage” to
which this insurance applies . . . .” The policy defined “bodily injury” as “bodily injury,
sickness or disease sustained by a person, including death. Id. at * 3. The insurer argued that
the employee’s allegations of embarrassment, humiliation, mental anguish, emotional pain
and suffering did not rise to the level of “bodily injury” as contemplated in the CGL policy
and we agreed based on the following cases:

       In Bituminous Fire and Marine Insurance Company v. Izzy Rozen's, Inc., 493 F.2d
       257, 261 (6th Cir.1974), a case arising out of the United States District Court for the
       Western District of Tennessee, the court cited Provident Life & Accident Insurance
       Company v. Campbell, 79 S.W.2d 292 (Tenn. Ct. App.1934), for the proposition that
       an insurance policy contemplates “some injury to the body of a physical nature in
       order to come within the definition of ‘bodily injury.’ “ Additionally, in Guardian Life
       Insurance Company of America v. Richardson, 129 S.W.2d 1107 (Tenn. Ct.
       App.1939), this court stated that

                 [t]he word “disease,” unrestricted by anything in the context, includes disease

       3
           Commercial General Liability policy.

                                                  -9-
               of the mind as well as disease of the body.

               But, in the policy here involved, 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.

               The adjective “bodily” means “of or pertaining to the body, in distinction from
               the mind.”

       [Richardson, 129 S.W.2d] at 1115 (emphasis in original) (internal quotations and
       citations omitted).

Foy at * 4.

        Based on the cited case law, the court in Foy held that the employee’s complaint did
not allege any “bodily injury” as contemplated by the policy, and thus there was no duty to
defend and indemnify under the CGL policy. Id. However, reliance on the holding in Foy
requires further analysis as the definition of “bodily injury” in the Foy policy differed slightly
from the definition at issue here. The Foy policy defined “bodily injury” as “bodily injury,
sickness or disease sustained by a person, including death, whereas the State Farm policy at
issue here defines “bodily injury” as “bodily injury to a person and sickness, disease, or
death that results from it. The insertion of the word “and” causes the adjective “bodily” to
modify only the word “injury” and not “sickness and disease. Under the reasoning in
Richardson, as there is no restriction on the words “sickness” or “disease” the coverage
would include sickness or disease of both the body and mind. However, according to Foy
and Richardson, the word “injury” is modified by the adjective “bodily”, so an injury to the
body or pertaining to the body, in distinction to the mind, must have been sustained by an
insured that caused the sickness or disease. There are apparently no other Tennessee cases
that have considered this issue.

        The issue has been considered by numerous courts throughout the country with
varying results, although the cases that found that “bodily injury” does not include emotional
injury absent the presence of a physical injury to the body, significantly outweigh the number
of cases that have held that "bodily injury" can encompass emotional distress alone.

       Most of the courts addressing the issue have concluded the term “bodily” also
modifies the terms sickness and disease, that “bodily” refers to some sort of physical harm,
and that the definition of bodily injury in question is thus not ambiguous. Evans v. Farmers
Ins. Exchange, 2001 WY 110, 34 P.3d 284 (Wyo.2001), at 286 (citing Citizens Ins. Co. of

                                              -10-
America v. Leiendecker, 962 S.W.2d 446, 453; Daley v. Allstate Ins. Co., 135 Wash.2d 777,
958 P.2d 990, 995 (1998)).

       The case of Citizens Ins. Co. of Am. v. Leiendecker, 962 S.W.2d 446, 451 - 454 (Mo.
Ct. App. 1998), held that the definition of “bodily injury” as “bodily harm, sickness or
disease” is not ambiguous and refers to physical conditions of the body and not mental
suffering or emotional distress. Leiendecker also lists dozens of cases that reached the same
conclusion. Id. at 452 - 453. Since Leiendecker was published in 1998, many more courts
have considered the issue of whether the term “bodily injury”, when used in an insurance
policy, includes mental suffering or emotional distress. The trend noted by the Leiendecker
Court, that the majority of courts find that emotional distress is not encompassed within the
meaning of “bodily injury”, has continued. See the following cases National Fire Ins. Co. of
Hartford v. NWM-Oklahoma, LLC, Inc., 546 F. Supp. 2d 1238, 1246 (W.D. Okla.
2008)(Oklahoma law)(commercial liability policy); Home Insurance Com. v. Hartford Fire
Ins. Co., 379 F. Supp. 2d 1282, 1289 (M.D. Ala. 2005), aff'd, 164 Fed. Appx. 950 (11th Cir.
2006)(S. Carolina law)(CGL policy); Johnson v. Am. Family Ins., 827 N. E.2d 403, 407
(Ohio App. Ct. 2005)(UM coverage); Nance v. Phoenix Ins. Co., 118 Fed. Appx. 640, 642
(3d Cir. 2004) (Pennsylvania law)(home owners policy); Tackett v. American Motorists Ins.
Co., 584 S. E.2d 158, 166 (W. Va. 2003)(CGL policy); Armstrong v. Federated Mut. Ins.
Co., 785 N.E.2d 284, 292-93 (Ind. Ct. App. 2003)(UM policy); Farm Bureau Ins. Co. of
Nebraska v. Martinsen, 659 N. W.2d 823, 827 (Neb. 2003)(automobile policy); Galgano v.
Metropolitan Property and Cas. Ins. Co., 838 A.2d 993, 999 (Conn. 2004)(UM policy);
Smith v. Animal Urgent Care, Inc., 542 S.E.2d 827, 830-31 (W. Va. 2000)(CGL policy); SCR
Medical Transp. Services, Inc. v. Browne, 781 N.E.2d 564, 571 (Ill. Ct. App.
2002)(automobile liability policy). Insurance Claims and Disputes 5th § 11:2, Insurance
Claims & Disputes: Representation of Insurance Companies & Insureds Database, updated
March 2011 Allan D. Windt.

        Most of the cases that conclude that “bodily injury” does not encompass emotional
distress or other mental suffering have considered insurance policies where “bodily injury”
is defined as “bodily injury, sickness or disease and the courts have concluded that the word
“bodily” not only modifies the word “injury” but also the words “sickness” and “disease”.
The courts have held there is no ambiguity in the policy. Although the State Farm policy at
issue differs from the policies in those cases as it defines “bodily injury” as “bodily injury
to a person and sickness, disease, or death that results from it”, it is also not ambiguous
either as the plain language of the policy clearly contemplates that first there must be a
physical injury to the body and that the injury to the body must then result in sickness,
disease or death for the policy to afford coverage. As discussed above, pursuant to the
reasoning set forth in the Tennessee cases Foy, 2000 WL 1839131, Campbell, 79 S.W.2d 292
and Richardson, 129 S.W. 2d 1107, and under the Policy’s language, the sickness suffered

                                             -11-
could be either physical or mental, as long as it is caused by a physical injury to the body.
Accordingly, the policy at issue does not cover the bystander claims for negligent infliction
of emotional distress as there is no allegation that the bystander plaintiffs sustained any injury
to their bodies that caused them emotional sickness or disease and the “each occurrence”
provision of the Policy is not applicable.

        As discussed in Allstate Ins. Co. v. Clohessy, 32 F.Supp. 2d 1333 (M.D. Fla. 1998),
Galgano v. Metro. Prop. & Cas. Ins. Co., 38 A.2d 992, 994 (Conn. 2004), and Allstate Ins.
Co,. v. Tozer, 392 F.3d 950 (7th Cir. 2004), a bystander injury is not “bodily injury” to the
bystander but is an emotional injury sustained by the bystander as a result of observing the
bodily injury of another, thus it falls within the damages covered by the “each person”
provision of the policy.

       In further support of this conclusion, Tennessee courts have held that loss of
consortium claims, which arise out of injury to another and not “bodily injury” to the
claimant, fall under the “each person” limits of liability in an insurance policy. Carter v.
USA Prop. & Cas. Ins, 03A01-9810-CV-00327, 1999 WL 652423 (Tenn. Ct. App. Aug. 24,
1999).

        Finally, the Trial Court refused to enforce the “each person” provision of the Policy
when it denied State Farm’s motions based on the reasoning expressed in the Indiana case
State Farm Mutual Automobile Insurance Co. v. Jakupko, 881 N.E.2d 654 (Ind. 2008)
concluding that “. . . [t]he statutory provisions of Tenn. Code Ann. § 56-7-1201(a) are
broader than the definition of “bodily injury” contained in the State Farm car policy, and
therefore . . . the Court is of the opinion that said language is not enforceable to limit
recovery . . . in the present case to the single “Each Person” limit for uninsured motorist
coverage as against claims of bystander negligent infliction of emotional distress.” The Trial
Court’s reliance on Jakupko was misplaced as the parties in Jakupko who claimed damages
for emotional distress also had sustained bodily injury. The Supreme Court of Indiana made
it clear that its conclusion in Jakupko would be entirely different if the parties claiming
bystander emotional distress had not also sustained bodily injury in the accident.

       The Jakupko Court concluded that the definition of “bodily injury” included emotional
distress damages, but only if that distress arose from a bodily touching or direct physical
impact. Jakupko at 658–59.

       Interestingly, on the same day the Indiana Supreme Court published Jakupko, it
published State Farm Mutual Insurance Co. v. D.L.B., 881 N.E.2d 665 (Ind. 2008) wherein
the court did not permit recovery from an uninsured/underinsured motorist policy for
emotional distress. In D.L.B., a four-year-old, D.L.B., was riding bicycles with his six year

                                              -12-
old cousin when a vehicle struck and killed the cousin while D.L.B. looked on. D. L. B.,
who was not physically injured, suffered post–traumatic stress associated with watching the
accident. Id. at 665. The Indiana Supreme Court was asked to decide whether “bodily
injury” as defined in the UM policy at issue, includes the emotional distress suffered by
D.L.B. The court distinguished Jakupko, noting that D.L.B. had not suffered a direct
physical impact as the plaintiff had sustained in Jakupko. The court stated that “we note in
Jakupko that the term “bodily injury” does not include emotional damage unless it arises
from a bodily touching.” The court held that because D.L.B. was not himself directly and
physically impacted by the accident, he did not sustain a compensable “bodily injury” under
the State Farm policy. The D.L.B. court relied upon Armstrong v. Federated Mutual
Insurance Co., 785 N.E.2d 284 (Ind. Ct. App.2003). In Armstrong the court held that the
parents of a child killed in an automobile accident, who were apparently not near the accident
when it occurred, were not entitled to recover UM benefits for emotional distress because
they had not “suffered a physical impact in the accident that took their [daughter's] life.” Id.
at 293.

        The Indiana Supreme Court published yet another opinion on February 28, 2008,
Elliott v. Allstate Insurance Co., 881 N.E.2d 662 (Ind.2008), that considered the identical
issue as D.L.B. In Elliot the court followed the reasoning of D.L.B., and Jakupko and held
because the occupants of a vehicle involved in an accident were themselves physically
injured they could recover UM benefits for emotional distress damages associated with
witnessing another occupant's nearly fatal injuries. Elliot at 664.

        Continuing the saga, the following year, the Indiana Supreme Court returned to the
issue of negligent infliction of emotional distress claims and UM coverage in Bush v. State
Farm Mutual Automobile Insurance Co., 905 N.E.2d 1003 (Ind.2009). The court held that
the language of State Farm's policy definition of “bodily injury” was “consistent with the
Indiana uninsured motorist statute as it required that the insured sustain bodily injury to
trigger uninsured motorist coverage.” Bush at 1005. In this case, there are no allegations that
the Garrison bystander plaintiffs sustained bodily injury in the accident. Accordingly, the
Trial Court’s reliance on Jakupko was in error, when it denied State Farm’s motion for
summary judgment.

       The bystander plaintiffs’ claims for negligent infliction of emotional distress caused
by observing the fatal injuries of Michael Garrison were claims for “damages resulting from
the bodily injury” of Michael Garrison and clearly fell within the liability limitations
contained in the “each person” provisions of the Policy. As the $100,000.00 coverage the
policy afforded under the “each person” limits had been exhausted, there was no coverage
available to cover the bystander claims.



                                              -13-
        We hold the Trial Court erred when it denied State Farm’s motion for summary
judgment, and the Trial Court’s Judgment is reversed and the Motion for Summary Judgment
is granted to State Farm. The cause is remanded to the Trial Court, and the cost of the appeal
is assessed to plaintiffs Jerry and Mary Garrison.




                                                    _________________________________
                                                    HERSCHEL PICKENS FRANKS, P.J.




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