CONCURRING OPINION ON MOTION FOR REHEARING
[Filed May 5, 1993]
GONZALEZ, Justice.What happened to Ms. Kerr in this case is grossly offensive conduct which no one should tolerate. As such the law should, and does, provide a remedy. However, as a result of the posturing by the dissenting justices, what has been lost in the shuffle is the pivotal role that insurance played in this case.
The young men who videotaped Ms. Kerr’s sexual encounter intentionally positioned the camera to capture the event on film. They intentionally showed the videotape to their friends. There was nothing accidental or careless about their outrageous conduct. However, Ms. Kerr intentionally gave up her right to receive redress under two other theories of recovery which she had pleaded: willful invasion of privacy,1 a cause of action which was recognized by this Court sixteen years before the jury verdict in this case in Billings v. Atkinson, 489 S.W.2d 858, 860-61 (Tex.1973), and intentional infliction of emotional distress, a cause of action that was recognized by the Restatement (Second) of Torts in 1965 and was adopted by the Beaumont court of appeals four years prior to the jury verdict in this case in Tidelands Automobile Club v. Walters, 699 S.W.2d 939 (Tex.App.—Beaumont 1985, writ ref’d n.r.e.) (relying on Duty v. General Finance Co., 154 Tex. 16, 273 S.W.2d 64 (1954)). Therefore, contrary to Justice Doggett’s suggestion in his dissent, these two causes of action were established in the jurisprudence of this state prior to Ms. Kerr’s case proceeding to trial. Her lawyers gambled *604when they made a strategic decision to proceed only with the questionable legal theory of negligent infliction of emotional distress.
At the time this case was tried, there was controversy and confusion about the state of the law regarding the tort of negligent infliction of emotional distress. See In re Air Crash at Dallas/Ft. Worth Airport, 856 F.2d 28 (5th Cir.1988); Harmon v. Grande Tire Co., Inc., 821 F.2d 252 (5th Cir.1987). Our Court had limited this tort as a separate and independent cause of action to negligent handling of a corpse, see St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649, 652 (Tex.1987), and “bystander” cases which allow those who contemporaneously perceive an accident involving a close relative to recover for negligently inflicted emotional distress. See Freeman v. Pasadena, 744 S.W.2d 923, 923-24 (Tex.1988); see also Reagan v. Vaughn, 804 S.W.2d 463 (Tex.1990) (recovery for negligent infliction of emotional distress denied because Bystander Rule not satisfied). In Reagan, the Court did not even mention our prior holding in Garrard, much less state that Garrard had created an all encompassing tort of negligent infliction of emotional distress. Therefore, to the extent that the 5-4 opinion in Garrard can be read otherwise, it is an aberration, and for the reasons stated in the majority opinion, it is out of step with the majority view.
It does not take a rocket scientist to determine why Ms. Kerr’s lawyers elected to proceed solely on the tort of negligent infliction of emotional distress. In fact, her lawyers explained their strategy to the trial court. At the close of the evidence, the defense attorneys made a motion for directed verdict on the negligence theories of recovery:
The COURT: Under what basis?
MR. DRABECK [defendant’s attorney]: Under the basis that intentional tort cannot be the result of negligent conduct. That the case has been tried from start to finish as an intentional tort by the lawyers over here. We’d ask that the Court recognize that. There has never been one question asked of anybody as to whether or not they failed to exercise ordinary care on the occasion in question, whether they negligently inflicted some sort of mental distress on her. It would appear by virtue of the record as placed by the plaintiffs themselves that every single question was directed toward intentional conduct.
MR. KRIST: [plaintiff’s attorney]:
Your Honor, the — to begin with, let the record reveal, for whatever purposes, it might be at a later date, that should the Court adopt counsel’s suggestion, counsel would have dropped his client in the grease in that he would have gotten totally out of coverage—
THE COURT:
It’s your case ... and I am going to give you your requested charge. If you don’t ask for an intentional tort, I ain’t asking it, ... I’m not going to make you prosecute a lawsuit that you didn’t want to prosecute. So don’t worry about that. Nobody is going to get intentional tort unless they ask for it.
In Texas, a home owners policy covers only accidents or careless conduct and excludes intentional acts. Ms. Kerr’s lawyers may have believed that if they obtained a judgment declaring that Boyles’ conduct came within the rubric of “negligence” (inadvertence or carelessness), they could tap the homeowners policies owned by the parents of Boyles and the other defendants. Thus, this case has a lot to do with a search for a “deep pocket” who can pay. If the purpose of awarding damages is to punish the wrongdoer and deter such conduct in the future, then the individuals responsible for these reprehensible actions are the ones who should suffer, not the people of Texas in the form of higher insurance premiums for home owners.
This case has nothing to do with gender-based discrimination or an assault on women’s rights. There is no reason, other than stereotype, to assume that emotional distress is unique only to women. In fact, as noted in Justice Cornyn’s plurality opinion in Twyman v. Twyman, 855 S.W.2d 619, 623 (Tex.1993), almost as many men as women have brought claims for negligent *605infliction of emotional distress. Furthermore, women as well as men will have to pay higher premiums for their home owners policies if the dissenting justices’ views were to prevail.
In sum, Susan Kerr does not need this amorphous cause of action in order to obtain a judgment against the parties actually responsible for her traumatic experience. I concur in the Court’s judgment and opinion.
. Justice Doggett does not offer any explanation for Ms. Kerr’s decision to waive her willful invasion of privacy claim.