ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Michael L. Hanley Richard P. Samek
Indianapolis, Indiana Larry L. Barnard
Fort Wayne, Indiana
ATTORNEYS FOR AMICI CURIAE
INSURANCE INSTITUTE OF INDIANA,
INC., NATIONAL ASSOCIATION OF
MUTUAL INSURANCE COMPANIES,
AND PROPERTY CASUALTY
INSURERS ASSOCIATION OF
AMERICA
Robert B. Clemens
George T. Patton, Jr.
Bryan H. Babb
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________ FILED
Feb 28 2008, 2:30 pm
No. 49S02-0704-CV-143
AUSTIN J. ELLIOTT, B/N/F WILLIAM K. CLERK
of the supreme court,
court of appeals and
ELLIOTT, AND AMBER ELLIOTT B/N/F tax court
WILLIAM K. ELLIOTT,
Appellants (Plaintiffs below),
v.
ALLSTATE INSURANCE COMPANY,
Appellee (Defendant below).
_________________________________
Appeal from the Marion Circuit Court, No. 49C01-0207-CT-1790
The Honorable Theodore M. Sosin, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0604-CV-363
_________________________________
February 28, 2008
Sullivan, Justice.
In July 2000, Amanda Elliott was in an automobile accident caused by Andrea Carmona;
Carmona was driving an uninsured auto. Amanda and Amber Elliott (Amanda’s 15-year-old sis-
ter) and Austin Elliott (Amanda’s three-year-old son), who were passengers in Amanda’s car,
each sustained bodily injuries. Amanda’s injuries were exceptionally severe and nearly fatal.
Amber and Austin each suffered emotional distress from witnessing Amanda’s injuries.
Amanda had automobile insurance with Allstate that included uninsured motorist cover-
age in the amount of $25,000 for “each person” and $50,000 for “each accident.” (App. at 71.)
Allstate settled Amanda’s personal injury claim for the “each person” limit of $25,000. When
Amber and Austin also sought to recover under the uninsured motorist provisions for their emo-
tional distress, Allstate took the position that it had satisfied its obligations under the policy when
it had paid the limits for Amanda’s injuries. In Allstate’s view, because Amber’s and Austin’s
claims for emotional distress were caused by Amanda’s injuries, they were included in the “each
person” limit of liability for Amanda’s bodily injury claim.
This litigation ensued. The trial court agreed with Allstate’s position but the Court of
Appeals reversed. It was of the view that Amber’s and Austin’s claims for emotional distress
were independent of Amanda’s and as such entitled to their own respective limits of liability.
Elliott v. Allstate Ins. Co., 859 N.E.2d 696 (Ind. Ct. App. 2007). In so holding, the Court of Ap-
peals relied in part on its own decision in State Farm Mutual Automobile Insurance Co. v.
Jakupko, 856 N.E.2d 778, 782 (Ind. Ct. App. 2006). Allstate sought, and we granted, transfer.
Elliott v. Allstate Ins. Co., 869 N.E.2d 454 (Ind. 2007) (table).1
The policy language at issue here is slightly different than that in Jakupko.2 However,
1
We also granted transfer in Jakupko, 869 N.E.2d 454 (Ind. 2007) (table), and decide it today in a sepa-
rate opinion. State Farm Mut. Ins. Co. v. Jakupko, -- N.E.2d --, No. 29S02-0704-CV-140, slip op. (Ind.
Feb. 28, 2008).
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Allstate agreed to “pay damages which an insured person is legally entitled to recover from the owner or
operator of an uninsured auto because of . . . bodily injury sustained by an insured person.” (App. at 29.)
The “Limits Of Liability” provision of the policy provides:
Limits of Liability.
The coverage limit shown on the Policy Declarations for:
2
both cases present us with precisely the same issues to decide:
(1) whether “bodily injury” as defined in the policy at issue in this case includes the
emotional distress Amber and Austin suffered; and, if so,
(2) whether the fact that the policy provides that the coverage limit for bodily injury suf-
fered by Amanda “includ[es] damages sustained by anyone else as a result of that bodily injury”
(App. at 25) precludes Amber and Austin from having their own independent limits on liability.
Our decision today in Jakupko resolves these issues. State Farm Mut. Auto. Ins. Co. v.
Jakupko, --- N.E.2d ---, No. 29S02-0704-CV-140, slip op. (Ind. Feb. 28, 2008). In it we hold
that “bodily injury” as defined in the policy at issue in that case includes 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). For the same reasons, we reach the same result
here.
In Jakupko, we also find that the policy at issue in that case contravenes the requirement
of the Indiana uninsured and underinsured motorist insurance statute that automobile insurance
policies provide “coverage . . . for . . . persons insured under the policy who are legally entitled
to recover damages from owners or operators of uninsured or underinsured motor vehicles.” Ind.
Code § 27-7-5-2(a)(1) (2004). The policy does so by effectively reducing the amount of dam-
ages the insureds suffering emotional distress are entitled to collect by the amount of damages
that the insured who suffered catastrophic physical injuries collects. Jakupko, slip op. at 11-13.
We find the same defect with the “include[s] damages sustained by anyone else as a result of that
bodily injury” (App. at 25) clause in the policy at issue in this case. This provision effectively
1. “each person” [$25,000] is the maximum that we will pay for damages arising
out of bodily injury to one person in any one motor vehicle accident, including damages
sustained by anyone else as a result of that bodily injury.
2. “each accident” [$50,000] is the maximum we will pay for damages arising
out of all bodily injury in any one motor vehicle accident. This limit is subject to the
limit for “each person.”
(App. at 31.)
“Bodily injury” is defined by the policy to “mean[ ] physical harm to the body, sickness, disease,
or death,” with some exceptions not relevant here. (App. at 19.)
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reduces the damages Amber and Austin are “legally entitled to recover from the owner or opera-
tor of an uninsured auto” (App. at 29) because of their emotional distress by the amount of dam-
ages that Amanda recovered. Because a clause in derogation of the Indiana uninsured motorist
statute is unenforceable, Jakupko, slip op. at 11 (citing Patton v. Safeco Ins. Co., 148 Ind. App.
548, 267 N.E.2d 859, 862 (1971)), Amber and Austin are entitled to a separate per person limita-
tion of $25,000, subject, however, to the per accident limitation of $50,000.
The judgment of the trial court is reversed.
Dickson, Boehm, and Rucker, JJ., concur. Shepard, C.J., concurs in result.
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