ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark D. Gerth David W. Craig
Indianapolis, Indiana Scott A. Faultless
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
FILED
Feb 28 2008, 2:31 pm
No. 89S05-0802-CV-102
CLERK
of the supreme court,
court of appeals and
tax court
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Appellant (Defendant below),
v.
D.L.B., A MINOR CHILD BY HIS PARENT
AND NATURAL GUARDIAN, DEANA H. BRAKE,
Appellee (Plaintiff below).
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Appeal from the Wayne Superior Court, No. 89D01-0109-CT-025
The Honorable P. Thomas Snow, Judge
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On Petition to Transfer from the Indiana Court of Appeals, No. 89A05-0512-CV-747
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February 28, 2008
Sullivan, Justice.
In July 2000, while riding bicycles with his four-year-old cousin, D.L.B., six-year-old
Seth Baker was struck and killed by a vehicle driven by Herbert Wallace. D.L.B. was not him-
self physically injured but suffered from Post-Traumatic Stress Disorder as a result of witnessing
his cousin’s fatal injuries.
Wallace was insured by State Farm Mutual Automobile Insurance Company. The State
Farm policy included bodily injury coverage in the amount of $100,000 for “each person” and
$300,000 for “each accident.” (Appellant’s App. at 26.) State Farm paid $100,000 to Seth’s
parents to settle claims against Wallace arising out of their son’s death. However, State Farm
denied a claim brought by D.L.B.’s mother, Deana Brake, on his behalf.
This litigation ensued. The trial court and Court of Appeals both ruled in favor of D.L.B.
State Farm Mut. Auto. Ins. Co. v. D.L.B. ex rel Brake, 862 N.E.2d 678 (Ind. Ct. App. 2007). In
so holding, the Court of Appeals relied in part on its own decision in State Farm Mut. Auto. Ins.
Co. v. Jakupko, 856 N.E.2d 778, 782 (Ind. Ct. App. 2006). Judge Darden dissented. D.L.B., 862
N.E.2d at 684.
We granted transfer in Jakupko and decide that case today by separate opinion. State
Farm Mut. Auto. Ins. Co. v. Jakupko, --- N.E.2d ---, No. 29S02-0704-CV-140, slip op. (Ind. Feb.
28, 2008). We grant transfer here today, because like Jakupko, this case requires us to decide
whether “bodily injury” as defined in the policy at issue in this case1 includes the emotional dis-
tress D.L.B. suffered.
In Jakupko, we hold that “bodily injury,” as defined in the policy at issue in that case, in-
cludes emotional distress. Jakupko, slip op. at 6 (citing Wayne Twp. Bd. of Sch. Comm’rs v.
Indiana Ins. Co., 650 N.E.2d 1205, 1210 (Ind. Ct. App. 1995), trans. denied). However, we note
in Jakupko that the term “bodily injury” does not include emotional damage unless it arises from
1
The insurance policy provisions at issue in this case are the definition of “bodily injury” and the condi-
tion of the limits of liability. They read as follows:
Bodily injury – means bodily injury to a person and sickness, disease or death which results from
it.
(App. at 29.)
The amount of . . . coverage is shown on the declarations page under “Limits of Liability – Cov-
erage A – Bodily Injury, Each person, Each Accident”. Under “Each Person” is the amount of
coverage [$100,000] for all damages due to bodily injury to one person. “Bodily injury to one
person” includes all injury and damages to others resulting from this bodily injury. Under “Each
Accident” is the total amount of coverage [$300,000], subject to the amount shown under “Each
Person”, for all damages due to bodily injury to two or more persons in the same accident.
(App. at 32 (emphasis in original).)
2
a bodily touching. (Wayne Township found that the “bodily touching . . . inherent to child mo-
lestation and the resulting emotional injury suffered by the victim of child molestation is bodily
injury.”) Jakupko, slip op. at 8 (quoting Wayne Township and citing Armstrong v. Federated
Mut. Ins. Co., 785 N.E.2d 284 (Ind. Ct. App. 2003)). The Armstrong case is particularly on
point as it held that the parents of a child killed in an automobile accident could not recover un-
der the uninsured motorist coverage of their insurance policy because they had not “suffered a
physical impact in the accident that took [their daughter’s] life.” Armstrong, 785 N.E.2d at 293.
D.L.B. argues that although he did not suffer a direct impact, his emotional distress was
accompanied by physical manifestations. As Judge Darden observes in his dissent, however,
these physical manifestations were not the result of an impact, force, or harm to D.L.B.’s body
and so do not fall with the ambit of Wayne Township; rather, this case is controlled by Arm-
strong.
Because D.L.B. did not suffer “bodily injury” within the meaning of the policy, he was
not entitled to collect damages under Wallace’s State Farm policy.
The judgment of the trial court is reversed.
Shepard, C.J., and Boehm, J., concur. Dickson, J., dissents with a separate opinion in which
Rucker, J., concurs.
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Dickson, Justice, dissenting.
In contrast to State Farm Mut. Auto. Ins. Co. v. Jakupko, --- N.E.2d ---, No. 29S02-0704-
CV-140 (Ind. Feb. 28, 2008), where persons insured asserted first-party claims for coverage un-
der their own automobile insurance policy's underinsured motor vehicle coverage, the present
action is one for declaratory judgment claiming that an insurance policy's liability coverage ex-
tends to a third-party's liability claim against the insured.
In both cases, however, the insurance policy definition of "bodily injury" ("bodily injury
to a person and sickness, disease or death which results from it"), Appellant's App'x at 29 (em-
phasis in original), is identical. The emotional injuries sustained by the insured plaintiffs in both
cases therefore equally fall within the shared definition that expressly includes "sickness" or
"disease" resulting from bodily injury to a person. Whether a separate physical impact was sus-
tained is irrelevant to our construction of the policy's own definition of "bodily injury." On this
issue, D.L.B. should be treated the same as the plaintiffs in Jakupko, and the trial court's denial
of State Farm's motion for summary judgment should be affirmed.
I observe, however, that the applicable insuring agreement in the State Farm policy at is-
sue provides liability coverage only for "damages which an insured becomes legally liable to pay
because of … bodily injury to others . . . . " Appellant's App'x at 31 (emphasis in original). Un-
der Indiana law, a person may recover on a claim for negligent infliction of emotional distress
only if the person sustains physical impact. Shuamber v. Henderson, 579 N.E.2d 452, 454 (Ind.
1991). Here, unlike the plaintiffs in Jakupko, D.L.B. did not personally sustain a physical im-
pact, thus indicating that the alleged tortfeasor, State Farm's insured, would not be "legally liable
to pay" for D.L.B.'s emotional injury claim. If so, on these grounds, State Farm's liability cover-
age would appear not to extend to D.L.B.'s emotional injury claims. But the insuring agreement
language and this reasoning were not presented in State Farm's trial court motion for summary
judgment or supporting memorandum, nor in its Appellant's Brief in this appeal. Because I pre-
fer not to affirm the summary judgment for State Farm on an issue not raised and on which
D.L.B. has not had an opportunity to respond, I would reverse the trial court's grant of summary
judgment for State Farm.
Rucker, J., concurs.
2