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. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.