Bernard v. Cordle

Petree, Presiding Judge. This matter is before this court upon the appeal of plaintiffs, Judith A. and Ted Bernard, from the February 14, 1996 decision and March 16, 1996 entry, and an *118 additional judgment entry filed April 8, 1996 of the Franklin County Court of Common Pleas, which entered summary judgment in favor of intervening plaintiff, Erie Insurance Company, and defendant, Florence E. Cordle, respectively. The history of this case is as follows: On September 5, 1994, plaintiff Judith Bernard was injured in an accident when her motorcycle was struck by defendant Cordle. Judith’s husband, Ted, was also riding a motorcycle and was directly behind Judith at the time of the accident. He witnessed the accident and further witnessed the amputation of Judith’s leg at the scene of the crash. Plaintiffs brought an action against defendant, seeking compensatory damages for the injury to Judith and damages for negligent infliction of emotional distress allegedly sustained by Ted Bernard. Defendant’s insurer, Erie Insurance Company (“Erie Insurance”), offered plaintiffs $50,000 in exchange for a complete release. Plaintiffs accepted this $50,000 in exchange for such a release, with the exception of Ted Bernard’s claim for negligent infliction of emotional distress. Erie Insurance then brought a declaratory judgment action to determine whether or not Ted Bernard could recover for his claim of emotional distress pursuant to the language contained in the policy that Erie Insurance had with defendant. All of the parties moved for summary judgment. By journal entry of March 16, 1996, the trial court granted summary judgment in favor of Erie Insurance, finding that the claim for emotional distress was derivative, and, therefore, under the language of the policy, plaintiffs had already received the maximum dollar amount available to them. The court also held that emotional distress did not constitute “bodily injury” as that was defined in the policy. On April 8, 1996, the trial court granted summary judgment in favor of defendant, finding that Ted Bernard did not have an independent cause of action against defendant for negligent infliction of emotional distress, “as such claim is clearly derivative.” Plaintiffs filed this appeal and assert the following assignments of error for our review 1 : “[I.] The lower court committed reversible error in granting summary judgment holding that defendant-appellant Ted Bernard does not have a separate, independent, and distinct claim for relief for negligent infliction of emotional distress. *119 “[II.] The lower court committed reversible error in granting summary-judgment holding that the subject Erie Insurance Company policy does not provide coverage for the negligent infliction of emotional distress claim of defendant-appellant Ted Bernard.” Plaintiffs have also presented the following issues for our review: “[I.] Whether a claim for negligent infliction of emotional distress is a separate, distinct, and independent cause of action or whether it is merely derivative of a personal injury or death claim. (Assignment of Error Number One.) “[II.] Whether a claim for negligent infliction of emotional distress is a claim for a separate bodily injury. (Assignment of Error Number Two.) “[III.] Whether separate claims for personal injury and negligent infliction of emotional distress may be consolidated and restricted to a single per person limit of coverage under a liability policy. (Assignment of Error Number Two.)” In the first assignment of error, plaintiffs argue that the trial court erred in holding that Ted Bernard does not have a separate, independent, and distinct claim for relief for negligent infliction of emotional distress. We agree. Although Schaefer v. Allstate Ins. Co. (1996), 76 Ohio St.3d 553, 668 N.E.2d 913, involved a loss of consortium claim, we find its reasoning persuasive in this case. In that case, the Ohio Supreme Court noted as follows: “ * * * Even though a loss of consortium claim is derivative in that it is dependent upon the defendant’s having committed a legally cognizable tort upon the spouse who suffers bodily injury, Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 93, 585 N.E.2d 384, 392, it is nonetheless legally separate and independent from the claim of the spouse who suffered the bodily injury. Id." (Emphasis added.) Id. at 557, 668 N.E.2d at 916. Ted Bernard’s claim for negligent infliction of emotional distress is derivative in the sense that it arose as a result of the bodily injury suffered by his spouse. However, like a claim for loss of consortium, a claim for negligent infliction of emotional distress is a legally separate and independent claim. Paugh v. Hanks (1983), 6 Ohio St.3d 72, 6 OBR 114, 451 N.E.2d 759. Regardless of whether or not insurance coverage exists in this case, Mr. Bernard has a separate, independent, and distinct claim for negligent infliction of emotional distress. The presence or absence of insurance coverage is simply irrelevant to a determination of whether or not Mr. Bernard has a cause of action against defendant. The trial court found that the negligent infliction of emotional distress claim was a “derivative” claim of Judith Bernard’s personal injury claim. Clearly, *120 whether or not Mr. Bernard’s claim is derivative is relevant for purposes of construing the language of the insurance policy. But that is not the issue set forth in the first assignment of error. Erie Insurance apparently argues that the language of the insurance policy is dispositive of the issues before this court. We cannot agree. Clearly, if defendant had no insurance whatsoever, plaintiffs could still maintain an action against defendant individually for damages sustained. The fact that there is an insurance policy involved simply goes to who will pay for the damages: defendant or her insurance company. Accordingly, this court finds that the trial court erred in granting summary judgment in favor of defendant Cordle on the negligent infliction of emotional distress claim, and the first assignment of error is hereby sustained. In the second assignment of error, plaintiffs argue that the trial court erred in granting summary judgment in favor of Erie Insurance and erred in holding that the policy in this case did not provide coverage for the negligent infliction of emotional distress claim of Ted Bernard. Plaintiffs present two issues in this assignment of error: (1) whether a claim for negligent infliction of emotional distress is a claim for a separate bodily injury, and (2) whether separate claims for personal injury and negligent infliction of emotional distress may be consolidated and restricted to a single per person limit of coverage under a liability policy. As to the first issue, this court has already noted that a claim for negligent infliction of emotional distress is a separate and independent legal claim or cause of action. Paugh, supra. However, one may have a claim for negligent infliction of emotional distress without having suffered any bodily injury whatsoever. See Schultz v. Barberton Glass Co. (1983), 4 Ohio St.3d 131, 4 OBR 376, 447 N.E.2d 109, at syllabus. Thus, a claim for infliction of emotional distress does not necessarily involve or constitute a claim for bodily injury. Plaintiffs argue that the claim for emotional distress is a separate claim that is not derivative and, therefore, Ted Bernard should be entitled to an additional $50,000 under the policy. Plaintiffs further argue that the policy is not limited to damages for bodily injury claims only, because the policy covers “derivative” claims such as a loss of consortium claim. Although we agree that the policy is not limited to claims involving bodily injury only, plaintiffs’ argument is not well taken. The policy provides as follows: “We will pay all sums you legally must pay as damages caused by an accident covered by this policy * * *. *121 “Damages must involve: “(1) bodily injury, meaning physical harm, sickness or disease, including care, loss of services or resultant death * * *[.]” (Page 6 of policy.) Clearly, the above language provides that the insurer will pay for damages involving bodily injury, loss of consortium and/or wrongful death. In construing the term “bodily injury,” several courts have concluded that such a term excludes nonphysical harms such as emotional distress. See Bowman v. Holcomb (1992), 83 Ohio App.3d 216, 614 N.E.2d 838; David v. Nationwide Mut. Ins. Co. (1995), 106 Ohio App.3d 298, 665 N.E.2d 1171; Vance v. Sang Chong, Inc. (Nov. 9, 1990), Lake App. No. 88-L-13-188, unreported, 1990 WL 174121. The definition of “damages” set forth in the policy does not include damages for infliction of emotional distress. The language of the policy is clear and unambiguous; thus, those terms must be applied without engaging in any construction. See Santana v. Auto Owners Ins. Co. (1993), 91 Ohio App.3d 490, 494, 632 N.E.2d 1308, 1311. This court will not amend the policy language to include damages for emotional distress. See Ambrose v. State Farm Fire & Cas. Co. (1990), 70 Ohio App.3d 797, 800, 592 N.E.2d 868, 870-871. Accordingly, we find that plaintiffs’ claim for infliction of emotional distress is not covered by the above definition of “damages.” We also find that plaintiffs’ claim for emotional distress does not constitute a separate “bodily injury” as that term is defined in the insurance policy. Bowman, David, and Vance, supra. For that reason, plaintiffs’ second assignment of error is overruled. The second issue presented by the second assignment of error is whether separate claims for personal injury and negligent infliction of emotional distress may be consolidated and restricted to a single per person limit of coverage under a liability policy. The insurance policy provides as follows: “If an individual’s damages derive from bodily injury to another person injured in the accident, we will pay only for such derivative damages within the per PERSON limit available to the person injured in the accident.” (Page 7 of policy.) The trial court found that Ted’s emotional distress claim was derivative of Judith’s bodily injury claim. It further found that the above restriction was valid and, therefore, held that recovery to plaintiffs was limited to the per person limit of $50,000. The trial court relied on Dues v. Hodge (1988), 36 Ohio St.3d 46, 521 N.E.2d 789, paragraph two of the syllabus, and Tomlinson v. Skolnik (1989), 44 Ohio St.3d 11, 540 N.E.2d 716, in reaching its decision. However, Tomlinson, supra, and paragraph two of Dues, supra, were recently overruled in Schaefer, supra. 2 In that case, the Supreme Court found as follows: *122 “In answering this question, we must determine the validity, in light of recent case law, of an automobile insurance policy provision which limits recovery for all causes of action arising out of bodily injuries sustained to one person to a single per person limit. For the following reasons, we find such a provision unenforceable. * * * « * * * “ * * * It is the separate injury which parties to both kinds of claims [wrongful death and loss of consortium] suffer that entitle them to separate per person limits. Thus, we see no valid reason to distinguish between wrongful death claims and loss of consortium claims in personal injury cases. Therefore, we hold that each person who is covered by an uninsured motorist policy and who is asserting a claim for loss of consortium has a separate claim subject to a separate per person policy limit. A provision in an insurance policy which reaches a contrary result is unenforceable. Because Tomlinson and paragraph two of the syllabus of Dues do not comport with the law of this state, we now expressly overrule them and return the law to where it was before those cases overruled Lewis.” (Emphasis added.) Id. at 555, 557-558, 668 N.E.2d at 915, 917. Although the court acknowledged that the claim for loss of consortium arose from the bodily injuries sustained by the spouse, it also found that the claim for loss of consortium constituted a separate compensable injury subject to its own per person limit. Id. at 555, 668 N.E.2d at 915. We find the reasoning of the Schaefer court to be persuasive to the instant action. Moreover, we see no valid reason to distinguish between a loss of consortium claim and a negligent infliction of emotional distress claim in a personal injury case. Arguably, an infliction of emotional distress claim is more independent and separate than a loss of consortium/wrongful death claim. Unlike a claim for wrongful death or loss of consortium, the claim of negligent infliction of emotional distress is not necessarily dependent upon the defendant’s having caused actual physical harm to another person. Paugh, supra, 6 Ohio St.3d at 80, 6 OBR at 121, 451 N.E.2d 759. Thus, a claim for negligent infliction of emotional distress is even less “derivative” than its wrongful death/loss of consortium counterparts. *123 Accordingly, we hold that each person who is covered by an insurance policy who is asserting a claim for negligent infliction of emotional distress has a separate claim subject to a separate per person policy limit, assuming that the policy covers such an injury. As noted earlier, the policy in the instant action does not cover damages for infliction of emotional distress. Thus, although we find in plaintiffs’ favor on the second issue presented in their second assignment of error, the assignment of error is still overruled because of the language of the insurance policy. For all of the above reasons, plaintiffs’ first assignment of error is sustained, the second assignment of error is overruled, and this matter is reversed and remanded for further proceedings consistent with this opinion. Judgment reversed and cause remanded. Lazarus, J., concurs. Tyack, J., concurs in part and dissents in part. Footnotes [1] Apparently defendant also filed a cross-appeal. Her notice of appeal indicates that she is appealing from both the March 16 and April 8, 1996 entries, although the April 8, 1996 entry was in her favor. Given that the brief filed by defendant does not contain any assignments of error and essentially adopts the arguments set forth in plaintiffs’ brief, we will consider only the assignments of error presented by plaintiffs. [2] The syllabus of the Schaefer case provides as follows: *122 "Each person who is covered by an uninsured motorist policy and who is asserting a claim for loss of consortium has a separate claim subject to a separate per person policy limit. A provision in an insurance policy which reaches a contrary result is unenforceable. (Tomlinson v. Skolnik [1989], 44 Ohio St.3d 11, 540 N.E.2d 716, and Dues v. Hodge [1988], 36 Ohio St.3d 46, 521 N.E.2d 789, paragraph two of the syllabus, overruled.)”