96-028
No. 96-028
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
CAROLYN TREICHEL
Petitioner and Respondent,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY, an Illinois corporation
registered to do business in Montana,
and RUTH HINTZ,
Defendants and Appellants,
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Ed McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William Conklin, Allen P. Lanning, Conklin, Nybo,
LeVeque & Murphy, Great Falls, Montana
For Respondent:
Thomas J. Beers, Connell, Beers & Alterowitz,
Missoula, Montana
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-028%20Opinion.htm (1 of 7)4/11/2007 1:57:01 PM
96-028
Submitted on Briefs: August 22, 1996
Decided: January 2, 1997
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
Petitioner Carolyn Treichel (Carolyn) brought this action
against State Farm Mutual Automobile Insurance Company (State Farm)
seeking a ruling that Carolyn's claim for negligent infliction of
emotional distress is not subject to the "Each Person" policy limit
applicable to her husband's claim. The District Court for the
Fourth Judicial District, Missoula County, granted Carolyn's Motion
for Summary Judgment and entered judgment in her favor. State Farm
appeals. We affirm.
The sole issue we address on appeal is whether the "Each
Person" or the "Each Accident" limits of liability set out and
contained in the State Farm policy apply to Carolyn's claim for
negligent infliction of emotional distress.
Factual and Procedural Background
On August 9, 1992, Carolyn and her husband, Fredie, were
riding their bicycles on Old Highway 200 about two miles east of
East Missoula when Fredie was struck from behind by an automobile
driven by Ruth Hintz (Hintz). Carolyn was riding some distance
behind Fredie and was not injured. Carolyn saw Hintz's car strike
Fredie and throw him into the air. She also saw the severe head
wound Fredie received when his head hit the vehicle's windshield
before he fell to the pavement. Fredie subsequently died from the
injuries he sustained in the accident.
Hintz was insured by an automobile policy issued by State Farm
that provided in part:
Limits of Liability:
The amounts of bodily injury liability coverage is [sic]
shown on the declarations page under "Limits of Liability
-coverage A - Bodily Injury, Each Person, Each Accident."
Under "Each Person" is the amount of coverage 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, subject to the
amount shown under "Each Person," for all damages due to
bodily injury to two or more persons in the same
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-028%20Opinion.htm (2 of 7)4/11/2007 1:57:01 PM
96-028
accident.
The policy limited bodily-injury liability coverage to $25,000 for
each person and $50,000 for each accident. State Farm paid
Fredie's estate $25,000.
On February 10, 1995, Carolyn brought this action against
State Farm and Hintz claiming that she is entitled to an additional
$25,000 under the policy for her emotional distress. In the Agreed
Statement of Facts, filed April 25, 1995, the parties agreed that
Carolyn met all of the elements necessary for a claim of negligent
infliction of emotional distress as set forth in the case of
Versland v. Caron Transport (1983), 206 Mont. 313, 671 P.2d 583.
The parties further agreed that the only issue to be determined by
this action is "whether the 'each person' or 'each accident' limits
of liability set out and contained in the policy . . . applies to
[Carolyn's] claim for negligent infliction of emotional distress."
Carolyn filed a Motion for Summary Judgment on May 23, 1995,
contending that, as a matter of law, her claim for negligent
infliction of emotional distress is an independent, non-derivative
cause of action separate from Fredie's claim and thus covered under
the "Each Accident" limits of liability contained in the policy.
State Farm filed a Motion for Summary Judgment the following day.
After hearing oral argument, the District Court granted
Carolyn's Motion for Summary Judgment, denied State Farm's Motion
for Summary Judgment and entered judgment in Carolyn's favor.
State Farm appeals the District Court's order and judgment.
Discussion
Whether the "Each Person" or the "Each Accident"
limits of liability set out and contained in the State
Farm policy apply to Carolyn's claim for negligent
infliction of emotional distress.
In its Opinion, Order and Declaratory Judgment, the District
Court determined that Carolyn's claim for negligent infliction of
emotional distress arose "out of the traumatic personal impact upon
her own emotional and physical well-being by actually and
immediately experiencing the accident which killed her husband
directly in front of her." The court concluded that Carolyn was a
second injured party in the accident, thus it granted Carolyn's
Motion for Summary Judgment and declared that under the policy,
Carolyn was entitled to an additional $25,000 for emotional
distress damages separate and apart from the $25,000 limitation on
Fredie's claim.
Our standard of review in appeals from summary judgment
rulings is de novo. Motarie v. N. Mont. Joint Refuse Disposal
(1995), 274 Mont. 239, 242, 907 P.2d 154, 156 (citing Mead v.
M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785). When
we review a district court's grant of summary judgment, we apply
the same evaluation as the district court based on Rule 56,
M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261,
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-028%20Opinion.htm (3 of 7)4/11/2007 1:57:01 PM
96-028
264, 900 P.2d 901, 903. In Bruner, we set forth the following
inquiry:
The movant must demonstrate that no genuine issues of
material fact exist. Once this has been accomplished,
the burden then shifts to the non-moving party to prove,
by more than mere denial and speculation, that a genuine
issue does exist. Having determined that genuine issues
of fact do not exist, the court must then determine
whether the moving party is entitled to judgment as a
matter of law. We review the legal determinations made
by a district court as to whether the court erred.
Bruner, 900 P.2d at 903 (citations omitted). The parties in the
case before us stipulated in their Agreed Statement of Facts that
the only remaining issue in this case involves the interpretation
of the State Farm policy. We have previously stated that the
interpretation of an insurance contract involves a question of law.
Wellcome v. Home Ins. Co. (1993), 257 Mont. 354, 356, 849 P.2d 190,
192.
The parties in this case stipulated that Carolyn met all of
the elements for a claim of negligent infliction of emotional
distress as set out in Versland v. Caron Transport (1983), 206
Mont. 313, 671 P.2d 583. However, subsequent to the partiesþ
stipulation, this Court decided Sacco v. High Country Independent
Press (1995), 271 Mont. 209, 896 P.2d 411, wherein we re-defined
and clarified the elements of the torts of negligent and
intentional infliction of emotional distress.
The plaintiff in Sacco had been employed at the High Country
Independent Press newspaper in Belgrade as a photographer/reporter.
After she left the newspaper's employ, officers of High Country
Independent Press, Inc. (HCIP), the corporation that owned the
newspaper, made allegations to the Belgrade Police that the
plaintiff had stolen proof sheets and photographs from the
newspaperþs offices. Criminal charges were brought against the
plaintiff but were eventually dismissed. The plaintiff brought an
action against HCIP and a Belgrade police officer for civil rights
violation, malicious prosecution, defamation and intentional and
negligent infliction of emotional distress.
We held in Sacco that an independent cause of action for
negligent infliction of emotional distress will arise under
circumstances where serious or severe emotional distress to the
plaintiff was the reasonably foreseeable consequence of the
defendant's negligent act or omission. Sacco, 896 P.2d at 426. We
also concluded that "serious or severe emotional distress" should
be defined by employing the definition of these terms found in the
Restatement (Second) of Torts, which provides in pertinent part:
[Emotional distress] includes all highly unpleasant
mental reactions, such as fright, horror, grief, shame,
humiliation, embarrassment, anger, chagrin,
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-028%20Opinion.htm (4 of 7)4/11/2007 1:57:01 PM
96-028
disappointment, worry and nausea. It is only where it is
extreme that the liability arises. Complete emotional
tranquility is seldom attainable in this world, and some
degree of transient and trivial emotional distress is a
part of the price of living among people. The law
intervenes only where the distress inflicted is so severe
that no reasonable [person] could be expected to endure
it. The intensity and the duration of the distress are
factors to be considered in determining its severity.
Severe distress must be proved. . . .
Sacco, 896 P.2d at 426 (quoting Restatement (Second) of Torts,
46, comment j at 77-78).
In granting Carolyn's Motion for Summary Judgment, the
District Court relied on our decision in Sacco. State Farm
contends that this was error because although Carolyn witnessed the
accident, she did not sustain any bodily injury, thus she was a
"bystander" victim as defined in Versland. State Farm maintains
that since the policy provides bodily-injury liability coverage for
damages the insured is legally liable to pay because of bodily
injury to one person in an accident, including all injury and
damages to others as a result of that bodily injury, Carolyn is
subject to the $25,000 per person limit applicable to Fredie's
claim because Carolyn's emotional distress resulted from Fredie's
injury. State Farm also argues that Carolyn's claim should be
treated the same as a claim for loss of consortium and that our
prior decision in Bain v. Gleason (1986), 223 Mont. 442, 726 P.2d
1153, is controlling in this situation.
We disagree; neither Versland nor Bain is controlling under
the facts here given our decision in Sacco. In Sacco it was our
intention to simplify and clarify the elements of claims for
negligent and intentional infliction of emotional distress, not to
further complicate this body of law by adding yet another theory to
those already in existence. See Sacco, 896 P.2d at 429. In view
of State Farm's arguments and in light of Sacco it is appropriate
that we discuss Versland and Bain, however. We had previously said
in Versland that to recover on a claim for negligent infliction of
emotional distress, the plaintiff must show (1) that the shock
resulted from a direct emotional impact upon the plaintiff from the
sensory and contemporaneous perception of the accident, (2) that
the plaintiff and the victim were closely related, and (3) that the
victim suffered either death or serious physical injury as a result
of the defendant's negligence. Versland, 671 P.2d at 588. Thus
the plaintiff had to be a bystander and actually witness the
accident.
However, in clarifying the elements of a claim for negligent
infliction of emotional distress in Sacco, we eliminated the other
various sorts of theories by which independent torts of negligent
infliction of emotional distress came into Montana law such as the
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-028%20Opinion.htm (5 of 7)4/11/2007 1:57:01 PM
96-028
Versland bystander analysis. Sacco, 896 P.2d at 429. Under the
Versland analysis, a plaintiff's cause of action hinges upon the
death or serious bodily injury of the accident victim. The
plaintiff's claim is derivative. Under the Sacco analysis, a
plaintiff's cause of action requires a showing of severe or serious
emotional distress to the plaintiff. The plaintiff's claim is
independent and non-derivative. Furthermore, even prior to Sacco,
Montana law recognized that where recovery is for emotional
distress absent physical injury, such a claim is allowed as an
independent cause of action. See Johnson v. Supersave Markets,
Inc. (1984), 211 Mont. 465, 473, 686 P.2d 209, 213.
State Farm's reliance on Bain is also misplaced. Bain
involved a claim for loss of consortium. The plaintiff in Bain
brought an action to recover for the injuries his wife sustained in
an automobile accident. In Bain, we said that the "Each Person"
limitation refers to all damages imposed by law by whomever
suffered resulting from one bodily injury and one accident and that
the "Each Accident" limitation only applies when two or more
persons suffer bodily injury in the same accident. Bain, 726 P.2d
at 1158.
Unlike Carolyn, the plaintiff in Bain was not at the scene of
the accident and did not witness the injuries to his spouse. As
the District Court pointed out in the case before us "[i]t is this
personal, on the scene, direct physical and emotional impact which
distinguishes emotional distress claims under Sacco from loss of
consortium claims. . . ." Carolyn was a separate person who
received an independent and direct injury at the accident scene.
Her serious and severe emotional distress was the reasonably
foreseeable consequence of Hintz's negligence. Sacco, 896 P.2d at
426.
State Farm further argues that emotional distress is not a
bodily injury, therefore Carolyn cannot be considered a second
party injured under the policy. We note that while the State Farm
policy does not define bodily injury, per se, it does allow
recovery for various injuries including loss of consortium which is
not a physical injury. Moreover, State Farm is willing to provide
coverage for emotional injuries resulting from the decedent's
physical injury, but only subject to the one person limitation.
Under the circumstances, State Farm is estopped from arguing that
there is no coverage for emotional or mental injuries. Clearly,
State Farm is willing to provide coverage for those types of
injuries.
Accordingly, we hold that Carolyn was a second injured person
in the accident, thus the "Each Accident" limits in the policy
apply, and we affirm the judgment of the District Court.
Affirmed.
/S/ JAMES C. NELSON
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-028%20Opinion.htm (6 of 7)4/11/2007 1:57:01 PM
96-028
We Concur:
/S/ J. A. TURNAGE
/S/ CHARLES E. ERDMANN
/S/ WILLIAM E. HUNT, SR.
/S/ TERRY N. TRIEWEILER
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-028%20Opinion.htm (7 of 7)4/11/2007 1:57:01 PM