*1
addition,
practice
injunctive
area of CIP. In
Miller
al
preliminary
relief because
extensively
testified
as to how the contin-
"prior
CIP committed a
material breach of
practice
podiatrist
ued
of a former CIP
Krueger's
Br. at
[Clontract."
10.
nearby
past
location had in the
harmed
Specifically, Krueger reminds us that his
many years
CIP's business for
after his
counterclaim asserted CIP's breach of the
Therefore,
departure.
we find that for the
by
Contract
him
paying
the auto allow-
enjoin
purpose
deciding
whether
ance as specified in the Contract. Krueg-
Krueger, the trial court's conclusion that
acknowledges
er
that the trial court "did
demonstrate that
CIP had failed to
issue,"
not address this
but he claims that
outweigh
harm to
the harm to
CIP would
appellate
court "can review whether
clearly
Krueger was
erroneous.
prior
there is a
Krueg-
breach
CIP." Id.
any
er fails to offer
authority for this
v.
proposition, and he
fails to cite
author-
Lastly, we must consider whether
ity holding that
precludes
such
the issu-
public
interest would be disserved
ance of a preliminary injunction. Accord-
grant
preliminary injunction.
of the
ingly, we do not find Krueger's argument
Apartments,
Aberdeen
public interest in the freedom of individu Reversed. contract," als to and held that there were public policy" "no reasons of to hold "inval KIRSCH, C.J., J., NAJAM, coneur. per non-competition id se" the covenant entered into by physician with his em
ploying practice. 449 N.E.2d at
Krueger Raymundo reminds us that "was twenty-three years
decided ago," and as
serts that we should "follow the trend and look to the health patient interests ELLIOTT, Austin J. William K. b/n/f rather than that of business interest of the Elliott, Elliott, and Amber Wil b/n/f group." Krueger's medical Br. at 10. He Elliot, liam Appellants-Plaintiffs, K. provides "trend," authority no of such a pursuant Raymundo, Indiana law professionals allows medical to choose to COMPANY, ALLSTATE INSURANCE non-competition agreement. enter into Appellee-Defendant. Accordingly, trial court's conclusion on No. 49A02-0604-CV-363. prong this fourth preliminary junction clearly standard is erroneous. Court of Appeals of Indiana.
VL. Jan. Krueger's argument
We also note
that we should affirm the trial court's deni-
as a matter of law Appellants' because infliction of emotional distress claims, which arose from Aman- (Amanda) injuries, subject da Elliott's are lability to the same "each limit of *3 personal injury as Amanda's claim. pro- We reverse and remand for further ceedings.
ISSUE Austin and Amber raise four issues on appeal which we consolidate and restate as following single issue: All- Whether state's for uninsured motorist cover- (UIM) age Appellants' negligent confines infliction of emotional distress claim to a single person" liability. "each limit of FACTS AND PROCEDURAL HISTORY 8, 2000, July fifteen-year-old On Amber three-year-old passengers Austin were L. Hanley, Michael Vernon J. Pertri & in a car driven Amanda. Amanda is Associates, IN, Indianapolis, Attorney for Amber's sister and Austin's mother. A Appellants. driven Andrea Carmona collided Samek, Barnard, Larry Richard P. L. Amanda, with Amanda's vehicle and Am- LLP, IN, Boxberger Wayne, Carson Fort ber, and bodily inju- Austin each sustained Attorneys for Appellee. ries. Amanda suffered near fatal resulting damage severe brain which OPINION rendered her comatose for six weeks. Judge. RILEY, consciousness, regaining Since Amanda re-
quires permanent medical care as she is unable to take care of herself. After wit- STATEMENT OF THE CASE nessing Amanda's Amber and Appellants-Plaintiffs, Austin J. Elliott Austin each suffered emotional distress (Austin), Elliott, William and Amber b/n/f with exhibiting physical Austin also man- (Amber), (col- Elliott Elliott William b/n/f ifestations of his emotional distress. lectively, Appellants), appeal the trial grant Summary Judg- court's of Partial collision, At the time of the Allstate was Appellee-Defendant, ment favor of All- provider, Amanda's automobile insurance (Allstate), Company state Insurance coverage find- which also included UIM $25,000 judgment that Allstate was entitled to person" amount of for "each encourage acquaint 1. We case, Allstate's counsel to it statement shall nevertheless appellee agrees 46(B)(1), contain a statement "that Appellate himself with Ind. Rule specifies though Appellee's appellant's even with the statements." Allstate's may brief omit the statement of facts and brief contains neither. e) (Appellant's Immunodeficiency Virus $50,000 accident." Human for "each (HIV); symptom, ef- any resulting or limits, All- these Because App. p. fect, condition, disease, related or illness personal Amanda's state settled through e. listed above. to a. provi- $25,000. The UIM claim for part: in relevant provide further sions Coverage. Statement General Liability. Limits of Policy on the shown premium If Policy on the coverage limit shown The In- Motorist for Uninsured Declarations Declarations for: surance, damages which pay we will is the maximum 1. "each to re- legally entitled person is
insured
arising out of
pay
we will
of an
operator
the owner
cover from
*4
any
one
bodily injury
person
to one
of:
auto because
uninsured
accident, including dam-
motor vehicle
in-
by an
injury sustained
bodily
1.
a re-
by anyone else as
ages sustained
or ...
person;
sured
bodily injury.
sult of that
we
accident" is the maximum
2. "each
%o
*oo
of all
damages arising out
pay
will
for
Person(s) means:
Insured
injury
any
one motor
bodily
a)
any resident relative
you and
subject
This limit is
accident.
person."
limit for "each
in, on,
b)
into
getting
any
while
person
15).
of an
of,
18, 19,
on or off
getting
or
and
App. pp.
or out
(Appellants'
permission.
your
auto with
insured
2002,
3,
filed a Com
July
Appellants
On
c)
legally
seeking damages
enti-
for
who is
Allstate
any
plaint against
other
of emotional distress.
of
to recover because
tled
relative,
1, 2005,
its Motion
an occu-
Allstate filed
August
a resident
On
you,
to
alleging
Summary Judgment 2
your
auto with
your insured
pant of
policy,
the
language
to
pursuant
permission.
claims for
Amber's individual
Austin's and
to,
subject
and
are
ook
in,
limit of Habili
person"
the "each
cluded
physical harm
Bodily injury means
In
injury claim.
ty for Amanda's
disease,
sickness,
or death but
body,
Designa
filed their
Appellants
response,
not include:
does
Upon Opposition
Matters Relied
tion of
a)
disease;
Any venereal
Summary
Partial
Motion for
to [Allstate's]
b) Herpes;
22, 2006,
after
January
Judgment. On
c)
Deficiency Syn-
Immune
Acquired
an Order
court entered
the trial
hearing,
(AIDS);
drome
Allstate, finding,
pertinent
in favor of
(ARC);
d)
Complex
Related
part:
AIDS
Inc.,
Reinbold,
(Ind.Ct.App.
Judgment,
Summary
All-
In its Motion
(Ind.
Block,
2004)
1. Pursuant to the
of do not constitute
within the
issued
of insurance
Allstate meaning
because their claims
[Amandal,
upon witnessing
inju-
are based
Amanda's
the uninsured motorist
infliction of
claims of
emotion-
ries and do not arise out of
al
asserted
[Amber]
they experienced
contact
in the accident.
arising
out of
[Austin]
I. Standard
Review
personal injuries
[Amanda]
to,
in,
subject
"per
Summary
are
and included
judgment
appropriate
lability
limit of
for the unin- only when there are
genuine
no
issues of
moving party
injury
material fact and the
personal
is enti
sured motorist
claim of
(Le.,
[Amandal,
$25,000.00)
which limits
judgment
tled to a
as a matter of law.
payment
were exhausted with Allstate's
56(C).
Ind. Trial
reviewing
Rule
a trial
of such
limits to [Amanda] when
court's ruling
summary judgment,
on
this
personal
her
uninsured motorist
court,
court stands in the
shoes
the trial
claim was settled with Allstate.
In find-
applying the same
deciding
standards in
does,
impressed
as it
the [clourt is
whether
to affirm
summary
or reverse
with,
follows,
specifically adopts
judgment. AutoXchange.com,
Inc. v.
legal reasoning
of the United States
Reinbold,
Inc.,
Dreyer
*5
and
816 N.E.2d
of
in
[appeals,
[seventh
[elireuit [clourt
Thus,
(Ind.Ct.App.2004).
47
appeal,
on
Tozer,
Company
Allstate Insurance
v.
must determine
genuine
whether there is a
(7th Cir.2004),
Allstate. Specifically, Austin and Amber case, the trial court entered detailed and plain ordinary assert that the meaning helpful findings of fact and conclusions of "bodily injury," as included within the law in support of its judgment. Special coverage reasonably UIM encompasses findings required are not in summary their claims for emotional distress. Fur- judgment thermore, proceedings binding and are not they as assert to have sustained on appeal. AutoXchange.com, Amanda's, 816 N.E.2d separate from Ap- However, pellants findings such allege compensation that their offer this is subject court insight to the "each valuable into the trial limitation. court's In response, Allstate judgment maintains that Am- rationale for its and facilitate ber and Austin's emotional appellate distress claims review. Id.
701
However,
Shuamber,
An insurance
is a contract
supreme
our
longstanding
reformulated its
such,
rule.
and,
subject
as
same rules
case,
daughter
as other contracts. Dunn
this
mother and
of construction
were
Mut. Ins.
involved
an automobile accident in
v. Meridian
Shuamber,
younger
son
(Ind.2005).
died.
Interpretation
of a con
N.E.2d at 453.
pure question
daughter
tract
is a
of law and is
Both mother and
physical injuries,
novo.
Id. If its terms are
sustained various
but did
reviewed de
unambiguous,
give
recovery
courts must
not seek
for emotional
clear and
trauma
ordinary
arising
injuries.
mean
of their
those terms their clear
out
own
Instead,
Id.
ing.
interpreting
they
an insurance
claimed emotional dis
When
anguish
courts must look at the contract
tress based on the
suffered
contract
whole,
provisions
observing
harmonize
result of
im
as a
its
member of their
family
at mediate
place
rather than
them conflict. Id.
sustain mortal
automobile collision.
Id. at 453. As
such, the
precluded
Shuambers were
from
II.
Indiana's
Low
Development
Case
recovery
impact
under the
rule then in
analyzing
policies
effect. After
sup
development
The
of Indiana case law on
rule,
porting
impact
the Shuamber
the tort of
infliction of emotional
court came to the conclusion that
there
vigorous,
say
has been
"no
appropriate
was
reason under
circum
Beginning
supreme
with our
least.
court's
recovery
stances to refrain from extending
Henderson,
opinion
Shuamber v.
plaintiff]
[to
(Ind.1991),
N.E.2d 452
the extension of
instances where the distress is the result
impact
modified
Shuamber's
rule Groves
physical injury negligently
on
inflicted
(Ind.2000),
Taylor,
'direct involvement' or came on of their actually witnessed definition plaintiff within the death or severe policy. the seene soon after relationship one with a
injury of loved However, analysis did not end there. our analogous spouse, to a plaintiff to the Jakupkos that emotional Contending child, grandchild, parent, grandparent, inju- injuries from their father's resulted neg- by the defendant's sibling or caused inju- own not arise from their ries and did conduct. otherwise tortuous ligent or accident, ries received in the insurance Id. at 573. injuries the three sets of company claimed policy's person' 'each limited to the Jakupko, this were
In our recent decision Noting Indiana's single cap. Id. at 785. an issue of first presented with was of a claim characterization longstanding dis as to whether emotional impression dis- emotional manifesta by physical accompanied tress tort and the Jak- independent tress as bodily tions of that distress constitutes collision, in the Jakup upkos direct involvement policy. injury under an insurance
703 designated mother's car. The referred to the Iowa Su evidence re- approvingly we describing physical inju- direct causa flects that Austin sustained preme Court bystander's impact an accident and a ries due to the of the collision tion between and that stating exiting suffered unconsciousness after vehicle, exiting as a car. Before directly bystander "the he saw his bystander seeing resting upon the accident mother's head result of the the console of reasonably believing everywhere initially that the direct the car with blood thought seriously his mother had died. The evi- victim of the accident would be dence further that establishes as a result injured (quoting or killed." Id. Pekin Ins. accident, of the Austin suffers emotional (Iowa 508, Hugh, v. 501 N. W.2d 511 Co. distress, 1993) by physical exhibited manifesta- (emphasis original)). Accordingly, including tions diminished concentration Jakupkos dis we held emotional sleep deprivation generally affecting tress claims did not result from father's mental well-being. brings his He now injuries personal from their own direct but claim for infliction of emotional light accident.3 Id. In involvement against Allstate on based witness- limitations, coverage we de of the mother, the serious to his Jakupkos termined that because the sus Amanda. injuries, separate bodily tained their for emotional distress are not con
claims
presents
Austin
us with a clear-cut Ja-
to fa
single cap applicable
fined to the
here,
kupko
Again,
situation.
ther's
but rather we decided the
"physical
defines
harm to
persons
Jakupkos
[who
to be "two or more
sickness,
body,
death,.
..."
disease
bodily injury] in the
acci
same
in Jakupko,
physi
As
we find that Austin's
acci
dent" and thus fall under the "each
cal manifestations of his emotional distress
coverage
policy.
dent"
Id. at 786.
body
constitutes a
harm to his
clearly
and thus falls
within the
very
presented
As we are
with
similar
Seq,
injury provision
of Allstate's
situation,
Jakupkos'
scenario as to the
e.g.,
Farm Fire &
v.
State
Cas. Co. West
analyze
claim for
will
Austin's and Amber's
Co.,
1165,
F.Supp.
chester Inv.
1167
of emotional distress in
negligent infliction
(C.D.Cal.1989)
throat,
(finding
dry
light
Jakupko's holding.
body temperature,
rise in
and knot
Analysis
light
Jalkupko
II.
stomach are sufficient
manifesta
slightly
Because Austin's claim
differen-
tions of emotional distress to constitute
Amber's,
tiates from
we will review their
bodily injury); Trinh Allstate Ins.
separately.
emotional distress claims
Wash.App.
37 P.3d
Negligent
A. Austin's Claim for
(Wash.Ct.App.2002) (holding
Emotional
Infliction of
injury includes emotional distress where it
*8
Distress
accompanied by physical
manifestations
headaches,
accident,
loss,
loss,
weight
sleep
three-
At the time of the
such as
aches).
and muscle
year-old
passenger
pains,
Austin was a
his
stomach
holding,
expressly
Jakupko
court
for
sustained "as
result of" their
In so
disagreed
ap-
subject
with the United States court
to
brother's
their claims were
peals
the Seventh
in Allstate
Circuit
Ins.
single cap.
trial
Because the
Tozer,
Tozer,
(7th cir.2004),
on
we find it note-
Co. v.
taking
step
another
in the development of
states and
explorations
Indiana's
into the
Indiana,
claims
far,
area thus
we now hold
aas matter of
established case law of some of our sister
law that a negligent infliction of emotional
already brought
has
a pure
states
claim of distress claim unaccompanied by physical
emotional distress without accompanying manifestations
thereof constitutes
physical manifestations
gambit
within the
under Allstate's
An individ-
of an insurance
bodily injury.
ual's mental health is an
compo-
essential
Crabtree v. State Farm Ins.
682 So.2d
operation
physi-
nent to the overall
(La.1994),
sought
Crabtree
mental
such,
body.
cal structure of his
As
we are
anguish damages from her insurance com-
separate
unable to
a person's nerves and
pany
after
her
being
husband
physique. Clearly,
tensions from his
emo-
oncoming
struck
car. The facts on
disabling
tional trauma can be as
to the
any physical
record are devoid of
manifes-
body as a
Instituting
visible wound.
tations of her distress.
Id. The Louisiana
rigid requirement
prevents
plain-
which
court,
supreme
faced with a
division
its
tiff from recovering
except
emotional harm
law,
state's
case
found the definition of
a physical injury
where
manifestation has
bodily injury
in State Farm's
to be
ensued,
completely ignore
would
the ad-
instance,
ambiguous.
Id. at 744.
In this
psy-
vances made modern medical and
"bodily injury
was defined as
chiatric science.
sickness, disease,
person,
to a
or death
Furthermore,
significance
from it."
attach
results
Id. The court rea-
soned that if the definition
the fact that
does not limit
was intended to
Allstate's
external,
only
harm
cover
then
to mere
*10
to "sick
the definition
body
expands
imagine
but
It is hard to
a men-
(Wyo.1986).
not in
than one
ness, disease,
injury
but does
tal
that is more believable
or death
(b)
the
by
person
disease;
a
who witnesses
(a)
suffered
venereal
clude:
(c)
deficiency
immune
herpes;
acquired
injury
family
a
member
serious
or death of
However,
(d)
relationship
(AIDS);
one.
as the
com
or loved
aids related
syndrome
(e)
(ARC);
immunodeficiency
person
victim and the
wit-
human
plex
between the
(HIV);
any resulting symptom,
virus
nessing
more attenuat-
the
becomes
effect, condition, disease or illness related
ed,
person
pure
mental harm to
(Appellants
through
to a.
e. listed above."
manifestations becomes
physical
without
19). Thus, clearly,
cov
App. p.
plausible.
less
harm.
merely physical
than
ers more
Accordingly,
challenge
Also,
that 'sickness'
phrasing
indicates
acknowledges
the shock
create
rule
harm,
physical
from the
need not result
accident,
independent
shortly after an
seeing
a victim
on its own as
but rather stands
extending
without
defendant's
sense,
agree
nt.4
In this
we
ailme
victim.
every
grieves
relative who
Wayne Township
that the
with our dicta
Therefore, although
Jakupko's
we extend
average
lay person
reading
today and find that a claim for
holding
that emotional trauma
would not conclude
unaccompa
negligent emotional distress
Wayne
from 'sickness.' See
is excluded
by
of emo
Moreover,
physical
nied
manifestations
if
707 witnessing infliction of in the accident and emotional distress in Indiana volvement law, Therefore, injuries. applies analysis Amber's and then that her sister's to two "damages arising situations, constitutes out of claim one that this court has ad before, dressed and one in motor that it has not. all one The first involves accident," viability of a claim and thus is included in the "each negligent for infliction of emotional coverage. (Appellant's App. p. dis accident" plaintiff's tress where the claimed the trial court erred emotion Consequently, al trauma manifests in negli- claim for itself when it found that Amber's symptoms, but the alleged emotional trau infliction of emotional distress is sub- gent ma stems not from his or her ject person" coverage "each of All- own to the injuries, but instead from viewing someone policy. state's
else's. is the This essence of Austin's CONCLUSION claim, majority and the cites State Farm Mut. Auto. Ins. Jakupko, Co. v. 856 foregoing, Based on the we hold that N.E.2d (Ind.Ct.App.2006) authority in bodily injury the definition of Allstate's that it ruling for is a viable claim in this includes infliction of emo- Amber's, ie., case. The second situation is that to medi- susceptible tional distress plaintiff's one which the claimed emo proven through and can diagnosis cal be tional trauma does not manifest itself accompa- when medical evidence even physical symptoms. question This is a that dis- by physical nied manifestations of impression majority first and the decides it Accordingly, tress. we find that Amber's in favor of plaintiffs Amber and future claim is covered under Allstate's similarly Although situated. I res harbor Jakupko, we also determine Pursuant majority's analyses ervations about the that Austin's claim falls within issues, especially respect those with Furthermore, bodily injury. definition I Amber's would not reach those Appellants negligent infliction of emotional issues, because I subscribe to the views subject only distress claims are Tozer, expressed in Allstate Ins. v.Co. liability. "each accident" limit of There- (7th Cir.2004) fore, we conclude that the trial court erred F.3d 950 effect applicable limits under this insurance summary it granted judgment when fa- policy have been exhausted. vor of Allstate. pro- Reversed and remanded for further Tozer, siblings sought to recover
ceedings. damages they for emotional alleg- edly suffered after their broth- KIRSCH, C.J., concurs. (from eventually er's which he FRIEDLANDER, died) in a traffic J., dissents with accident-an accident they passengers were the same separate opinion. car as the deceased. The insurance FRIEDLANDER, Judge, dissenting. $100,000 in that case contained limits of for correctly grant- I believe the trial court $300,000 person each for each acci- partial summary judgment ed in favor of provided, It "The limit stated dent. also Allstate, respectfully and therefore dissent is our each majority's from the decision to reverse damages total limit of for all be- ruling. by one cause of sustained majority lays including all interpretation person, The out its development by anyone of the tort of else as a result injuries. Having al- from" Amanda's original). sult (emphasis at 953 injury." limits for Amber's ready paid clause in the instant corresponding The *12 states, liability on claims deriv- substantially injuries, similar Allstate's policy is Policy limit shown on the coverage ative of those is exhausted. See "The person' is the for: 1. 'each Declarations Tozer, F.3d 950. Ins. v. Allstate Co. pay basis, that we will grant maximum affirm the this I would On to one arising out of in favor of All- summary judgment partial accident, includ one motor state. anyone else as damages sustained injury." Appellant's result of that surviving siblings at 97. The
Appendix negli damages for sought to recover
Tozer The distress.
gent infliction of emotional coverage ground on the denied
insurer limits for the paid
that it had siblings' injuries and decedent's WARE, Appellant-Defendant, Donald injury within from" that claims "resulted language. meaning claimed, Therefore, company the insurance Indiana, Appellee-Plaintiff. STATE of limit the "each already paid it had No. 49A04-0602-CR-76. respect. in that The Tozer of the doing, in so decided agreed, of Indiana. Appeals Court of "bodily injury" is not a 9,2007. Jan. meaning policy, but within per third damage stead is person's of another
son as result concluded, death. The court liability policy caps Allstate's
"Because the dece damages 'resulting [the all from' injuries, surviving sib
dent's] [the from result his
lings'] emotional insurer's for these
claims is exhausted." correctly decided on
I believe Tozer was it here. The apply and would point
this however, rejects in favor
majority, Tozer contrary con- reached Jalkkupko,which of whether emo- question
clusion on the within the
tional distress is policy language such as is be-
meaning of left, then, to decide us here. We are
fore part ways I with the
which view is better. that emotional dis-
majority and conclude cireumstances is not a
tress under these meaning of the
bodily injury within the that Austin's and
policy, and therefore distress "re-
Amber's claims for emotional