ILNews

Court rules on 3 emotional distress cases

Michael W. Hoskins
January 1, 2008
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
The Indiana Supreme Court says that insurance policy language "bodily injury" includes emotional distress subject to its own damage limits, but only if those making the claim are directly involved in the underlying accident or incident.

A trio of anticipated rulings came late afternoon on Feb. 28 from the state's highest court, with Justice Frank Sullivan authoring all three as they involve similar cases regarding insurance policy coverage of emotional distress. The cases are: State Farm Mutual Automobile Insurance Co. v. Patricia Jakupko, et al., No. 29S02-0704-CV-140, Austin J. Elliott, b/n/f William K. Elliott, et al. v. Allstate Insurance Co., No. 49S02-0704-CV-143, and State Farm Insurance Co. v. D.L.B., No. 89S05-0802-CV-102.

The 13-page unanimous ruling in Jakupko is the meat of the bunch, but the five-page D.L.B. decision clinches the decisions involving this complex area of insurance law.

Attorneys on both sides of the aisle in these cases credit the court for taking a considerate and reasonable approach.

"They are being sensitive to emotional distress claims getting out of hand," said Indianapolis attorney Scott Montross, who represented the Jakupko family. "They want to make it clear that there has to be a strong connection with the incident. That makes sure we don't lower the bar and let this get abused."

On the insurance industry's side, Bose McKinney & Evans attorney Brian Babb, who represented national and state trade groups as amicus parties, had a similar take.

"This is really a masterful stroke, what they did here," he said. "They've struck a reasonable compromise and swept away all the language that had broadened common law claims of emotional distress without any limitation."

To be clear: Babb lost.

"Although we're disappointed, these three decisions taken together represent a reasonable compromise," he said. "This is going to have an impact on the insurance industry, but it's reasonable and manageable."

Last May, the court heard consolidated arguments in Jakupko and Elliott, and recently agreed to accept D.L.B. as it involves an identical issue, with a twist.

Both in Jakupko and Elliott involve passengers in auto accidents who claimed they suffered negligent infliction of emotional distress, with and without physical manifestations, after being injured themselves and witnessing severe injury to a family member. The family-member passengers of the insurance policyholders sought coverage under uninsured and underinsured provisions of their contracts, arguing that each should be able to recover on their own claims subject to their own liability caps - $100,000 in Jakupko and $25,000 in Elliott, rather than having each person lumped into one policyholder's claim. Each would still be subject to a total accident cap in each case.

Circumstances are slightly different in D.L.B., though, as the case involves a bike-riding 6-year-old boy who witnessed his cousin get struck and killed by a car in July 2000 and suffered post-traumatic stress disorder as a result.

Following the Court of Appeals decisions on these cases, the insurance industry had concerns that the common law had been expanded to the point where there was no limitation, Babb said. Those concerns are gone now.

In the Supreme Court decisions, justices agreed with their appellate colleagues in that the term "bodily injury" covers emotional distress and is subject to its own "per person limit" as long as the claim arises from "bodily touching" - meaning that the person claiming emotional distress had to have been directly involved, not a third-party.

The Jakupko and Elliott decisions reach the same conclusion, though one trial court was affirmed and the other reversed based on those initial judgments.

Justices relied on multiple cases from across the country, but most specifically on Wayne Township Board of School Commissioners v. Indiana Insurance Co., 650 N.E.2d 1205 (Ind. Ct. App. 1995) that held "sickness" included emotional distress when there was physical injury and each claim is a distinct "bodily injury." Part of that ruling also determined that emotional-distress damage wasn't included unless it arose from "bodily touching," or physical contact of someone directly involved.

The court also relied on that 1995 ruling in D.L.B., using the "bodily touching" definition to determine that the cousin couldn't recover for emotional distress because the car that struck and killed his cousin didn't directly injure him.

Chief Justice Randall T. Shepard wrote a separate, concurring opinion that steps back to offer a point of clarity to the court's decision in Jakupko.

"I do not read my colleagues' embrace of (caselaw) to suggest that a person who walks away from an accident without any damage to life or limb, not so much as a bruise, has suffered 'bodily injury' because he or she is 'distressed,'" he wrote, tying that decision to the others.

He also wrote that Richard Jakupko and his family should be covered for pain and suffering customary to tort damages.

Justices Brent E. Dickson and Robert D. Rucker dissented in the third decision, opining that whether a separate physical impact occurred was irrelevant to the court's construction of insurance policy language saying "bodily injury to a person and sickness, disease or death which results from it."

Karl Mulvaney, who represented State Farm in the Jakupko case, said he was disappointed in the ruling but that he understands why the court decided the way it did. He said it's too early to tell if a rehearing will be requested.

Indianapolis attorney John Townsend III, who also represented the Jakupkos along with Montross, praised the court's decisions.

"This protects the traveling public from attempts by the insurance industry to whittle away at coverage beyond what the legislature requires and consumers have a right to expect," he said.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Thanks Jim. We surprised ourselves with the first album, so we did a second one. We are releasing it 6/30/17 at the HiFi. The reviews so far are amazing! www.itsjustcraig.com Skope Mag: It’s Just Craig offers a warm intimacy with the tender folk of “Dark Corners”. Rather lovely in execution, It’s Just Craig opts for a full, rich sound. Quite ornate instrumentally, the songs unfurl with such grace and style. Everything about the album feels real and fully lived. By far the highlight of the album are the soft smooth reassuring vocals whose highly articulate lyrics have a dreamy quality to them. Stories emerge out of these small snapshots of reflective moments.... A wide variety of styles are utilized, with folk anchoring it but allowing for chamber pop, soundtrack work, and found electronics filtering their way into the mix. Without a word, It’s Just Craig sets the tone of the album with the warble of “Intro”. From there things get truly started with the hush of “Go”. Building up into a great structure, “Go” has a kindness to it. Organs glisten in the distance on the fragile textures of “Alone” whose light melody adds to the song’s gorgeousness. A wonderful bloom of color defines the spaciousness of “Captain”. Infectious grooves take hold on the otherworldly origins of “Goodnight” with precise drum work giving the song a jazzy feeling. Hazy to its very core is the tragedy of “Leaving Now”. By far the highlight of the album comes with the closing impassioned “Thirty-Nine” where many layers of sound work together possessing a poetic quality.

  2. what a wonderful world we are living, i still doubt this spell caster how he did it!!! i am Tamara Barrow am from USA I am so happy to let the whole word know how this powerful spell caster saved my marriage.Everything was going down the drain as my husband can not stop cheating on me with other women. It became used to always heating on me. I tried to make him stop, but I couldn't help the situation, the more I tried, the harder it becomes. At times we will fight and go apart for some months and we will come back again just because of our kids. One day a friend told me about this spell caster who helped her too, his name is Dr.voodoo, she said he uses white magic spells to solve spiritual problems. I decided to give it a try, I contacted him and he told me it will take just 2 to 3 days and I will see great changes in my husband. He actually cast a spell, believe me after 2 to 3 days of the spell, my husband was confessing different names of woman he has slept with. He begged for forgiveness and never to try it again. From that day till now, my mind is at rest. My husband dislike every other women on earth except me. And am so happy to have him for myself alone.The spell caster’s contact his email at: voodoospelltemple66@gmail.com visit his website on http://drvodoospelltemple.webs.com

  3. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

  4. Journalism may just be asleep. I pray this editorial is more than just a passing toss and turn. Indiana's old boy system of ruling over attorneys is cultish. Unmask them oh guardians of democracy.

  5. Banana.Republic

ADVERTISEMENT