ILNews

Court rules on 3 emotional distress cases

Michael W. Hoskins
January 1, 2008
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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.
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  1. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  2. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

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