Wednesday, October 5, 2011

Superior Court Finds Bystander Emotional Distress Claim to be Covered Under Auto Policy Definition of "Bodily Injury"

According to an August 27, 2011 article in The Legal Intelligencer by reporter, Gina Passarella, the Pennsylvania Superior Court recently ruled in a memorandum opinion that a bystander negligent infliction of emotional distress claim fell under the automobile insurance policy definition of a “bodily injury” even though there was no physical injury sustained by the injured party.

In the case of Lipsky v. State Farm Mutual Automobile Insurance Company, PICS Case No. 11-4128 (Pa. Super. September 1, 2011) (unpublished Opinion by Stevens, J.) (Donahue J. concurring; Ford Elliot, P.J. dissenting), a split three (3) judge Pennsylvania Superior Court panel upheld a Philadelphia County trial court decision that the definition of “bodily injury” in State Farm’s automobile insurance policy was broad enough to allow for a negligent infliction of emotional distress claim to be considered as a "bodily injury."

It is noted that the Superior Court did not find that the definition of “bodily injury” in the policy was ambiguous. Rather, the Court found that the definition was wide enough to include claims of emotional harm without physical injury.

The Superior Court also ruled that the two brothers and the father of the victim each had their own separate bodily injury claims rather then all having a single claim based upon the victim’s injuries.  Thus, they were each entitled to pursue the per person limits under the policy separately.

This matter arises out of an incident during which an allegedly intoxicated tortfeasor struck and killed a 17 year old pedestrian in the presence of the pedestrian’s father and two brothers. A lawsuit was brought on behalf of the decedent’s estate, as well as separate claims on behalf of the father and the brothers of the decedent who witnessed the accident. The separate claims of the father and the brothers were based upon a negligent infliction of emotional distress claim.

The Claimants also filed a separate Complaint for a declaratory judgment seeking a declaration that the emotional distress of each Plaintiff constituted a separate “bodily injury” under the State Farm policy allowing that person to recover his own $100,000.00 “each person” liability limits.  As noted above, the Claimants eventually prevailed on appeal in this case before the Superior Court.

I send thanks to Attorney Christine Lezinski of the Scranton law firm of Lenahan & Dempsey for bringing this case to my attention.

Anyone desiring a copy of this Opinion in Lipsky v. State Farm may click this LINK.

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