*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 820 N.E.2d at 163. dispositive in our determination of whether public The trial court concluded that the the trial court erred in failing grant injunce interest would if be disserved preliminary injunction to CIP. granted tion pa were here because the right choose her CIP showed physician" preponderance tient's "to out weighed "the business interest of CIP." evidence that injunctive it is entitled to Raymundo, (App.12). Indiana's Therefore, Su relief. the trial court abused preme public Court addressed a similar injunctive its discretion when it denied re- policy argument. paramount It found "the lief to CIP.

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) 858 N.E.2d 143 Filip v. & pleadings the certi- designates "the and state 2006) designation fails As this Ct.App., [Amanda], copy its issued fied designated contain Filip, Motion should portions of which are specific clarified in designation of evi specific and detailed Support accompanying Memorandum accompanying upon whereas the relied Summary Judgment." dence for Partial of Motion merely tool to persuasive is Memorandum We caution All- App. p. (Appellant's argu party's enlighten court as to the this case light of our recent that in state's counsel op. p. Filip, See ments. Dreyer AutoXchange.com, Inc. law in express language

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), 392 F.3d 950 wherein the issue of material fact and whether trial the found, in Seventh Cireuit a case involv- court correctly applied has the law. Id. In policy language identical to the case so, doing we designated consider all of the bar, bystander at that the claims of emo- evidence in light most favorable to the give tional distress do not "per rise to a non-moving party. party appeal Id. The person" limit of separate from ing grant summary of judgment has personal injury injured claim of par- the burden of persuading this court that ty, in this case [Amanda]. trial ruling court's improper. was Id. {Appellants' App. p. Accordingly, grant summary judg ment must be reversed if the record Appellants appeal. now Additional dis facts provided application will closes an incorrect necessary. be as of the law to Ayres facts. See v. Indian Heights DISCUSSION AND DECISION Inc., Dep't, Volunteer Fire 493 N.E.2d (Ind.1986). 1234 Appellants contend that the trial court erred in granting summary judgment present We observe in the

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, 729 N.E.2d 569 *6 at another." Id. our in recent decision State Farm Mut. Jakupko, Auto. Ins. Co. v. 856 N.E.2d 778 in- Recognizing negligent the claim for (Ind.Ct.App.2006), negligent claims for fliction of emotional distress to be a dis- action, fliction of emotional distress have obvious tinct and independent cause of the ly gained importance sophistication. in and Shuamber court enunciated what has be- impact come the direct known as modified Traditionally, long Indiana maintained rule: damages that for emotional distress could When, here, plaintiff a sustains a only injury be recovered when the was an- impact negligence direct the of accompanied by physical impact a to the and, by in- other virtue of that direct plaintiff. Historically referred to as the trauma volvement sustains an emotional rule, impact required proof it of three ele is serious in nature and of a kind which (1) (2) impact plaintiff; ments: an on the normally expected and extent to occur in physical injury plain which caused to the ..., plaintiff a a person, reasonable such (8) tiff; turn, injury, and caused is entitled to maintain an action to recov- the distress. emotional Boston Chesa er for that emotional trauma without peake Ry. & O. 223 Ind. regard to whether the emotional trauma (1945). Thus, N.E.2d the rule accompanies any physi- arises out of or mandated that for emotional dis injury plaintiff. cal to the only were tress recoverable when dis that accompanied by, tress was and resulted Id. at 456. The court elaborated from, injury impact" im of ensures requiring a caused value "direct seeking recovery. unambigu- of clear and pact person the establishment father, ko, Jalkupko, at 783. In 856 N.E.2d was so di- plaintiff that the ous evidence in a mother, were involved and two sons giving rise in the accident rectly involved collision, inju resulting unlikely it is trauma to the emotional ries, sustaining injuries result father id. with merely spurious. See is that the claim mental permanent quadriplegia impact direct the modified Reevaluating witnessing fa at 780. After deficits. Id. Groves, court was supreme our rule in and both sons suf injuries, mother ther's a where sister a situation presented with experienced fered emotional distress body roll down the her brother's witnessed their emotional manifestations of police being struck highway after trauma, erying, including uncontrollable Groves, at 571. Not vehicle. sleeplessness, diminished appetite, loss of injuries her- any physical having sustained concentration, Seeking fatigue. Id. distress self, alleged emotional the sister compensation under the UIM additional negligent as a result of policy, automobile of their provisions death. her brother's action that caused they were each Jakupko's asserted recog- court analysis, In its Groves Id. compensation for to "each entitled of prevention although nized infliction of emo their claims is the rationale for merely spurious claims Here, Jakupkos Id. tional distress. rule, may there well be the Shuamber "bodily "bodily injury" as defined where, plaintiff while the circumstances sickness, disease to a impact, "the a direct does not sustain it." results from Id. death which sufficiently directly involved plaintiff the emotional rise to giving the incident 'bodily term Interpreting distinguish that we are able trauma jurisdictions for injury," looked to other spurious." from the mere legitimate claims A of our sister states' guidance. review such, supreme our at 572. As Id. majority of courts law revealed that case rule, impact modified direct extended the allegations physically-mani- hold that Skuamber, permit as enunciated fall emotional distress within fested to assert plaintiff context. injury coverage the insurance where, although view, majority's Accepting met, by- is not impact direct test Jakupkos claims held that the we likewise stander establishes: accompanied by of emotional *7 that the that distress fell proving manifestations of physical

'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. 392 F.3d 950 instant case relied policy provi- worthy expressly decline to follow the Sev- which involved similar facts and to Jakupko since enth Circuit as we conclude sions. The court concluded that Tozer the better result. plaintiffs' emotional distress claims were reaches Rather, supports the evidence signs. Furthermore, claim for Austin's by feelings guilt, result from his did not Amber is consumed his di rather from injuries mother's but and sadness. anger, and rea in the accident rect involvement reserved the Jakupko, expressly In we had died. that Amanda sonable belief infliction of negligent question "whether is not remote Accordingly, his claim unaccompanied by distress claim emotional Amanda's, independent. but secondary to bodily constitutes manifestations bodily separate Austin sustained Because policy" for "an- injury under insurance not distress claim is injury, his emotional N.E.2d at 784. day." Jakupko, other person" cap applica confined to the "each we now have to de- expected Sooner than injury and "dam Amanda's ble to Al- impression. cide this issue of 'first by anyone else as a result ages though express- no Indiana decisions have bodily injury." (Appel of [Amanda's] question, we are not left ly ruled on this 19). Instead, hold as a App. p. lant's to how Indiana without some indication as that Austin's claim consti matter of law courts would decide the issue. arising out of all "damages tutes accident," any one motor vehicle Groves, supreme In where our court ex under the "each acci and therefore falls test impact tended modified Shuamber's App. p. coverage. (Appellant's dent" constructing involvement' the 'direct Thus, the trial court we conclude theory permit plaintiff assert it found that Austin's claim erred when infliction of emotional distress negligent of emotional dis to- approvingly the court cited cov subject to the "each tress is concurring Judge now-Chief Kirsch's erage of Allstate's Groves, opinion. an im Praising the Shuamber decision as Negligent B. Amber's Claim for the harsh portant step eliminating towards Emotional Infliction of consequences impact rule re Distress examining eliminating passenger was a her sis Amber jury requirement, Judge expressed Kirsch car. At the moment of the ter Amanda's court would see hope supreme that our unconscious; collision, Amber became another opportunity as an to take Groves consciousness, regained the evi when she step. light, In this the Groves court such "lay dence that she saw her sister shows Judge saying that "trau cited Kirsch with blood all over her." ing there severe, debilitating matic events can have 169). Amber sustained (Transcript p. effect even and foreseeable emotional if injuries required staples head seven by physical injury, a di accompanied Austin, of her head. Like the back impact, rect or a direct involvement." filed a infliction of emo Amber added). (emphasis Allstate against tional distress claim decision, this court witnessing the serious Prior Groves based on Wayne Twp. Bd. opinion issued its However, unlike incurred Amanda. Co., 650 Comm'rs v. Indiana Ins. School Austin, designate the evidence fails to (Ind.Ct.App.1995), reh'g de N.E.2d emo physical manifestations of Amber's nied, Wayne Township, trans. denied. Instead, the record indi tional distress. *9 molestation filed a claim a victim of child though diag Amber is cates even of emotional dis depression, clinical she is not nosed with perpetra- the school and the exhibiting any physical against tress counseling "bodily injury" easily at 1207. Under the school's tor. could have been de- general liability insurance comprehensive in a fined more restrictive fashion. Id. As injury policy, bodily was defined as "bodi- such, the Crabtree court found it reason- ly injury, sickness or disease ..." Id. at bodily able that the term injury included Noting policy extended severe and debilitating pain mental meaning injury beyond phys- anguish experienced by a spouse victim's injury, ical we stated in dicta that "the witnessing result of the accident and lay person average reading policy suffered the victim. Id. anguish would not conclude that mental Likewise, noting poli that the insurance excluded from the ambit of 'sickness.?" cy "bodily extended injury" beyond mere Nevertheless, Id. at 1211. we determined physical injury, and also included sickness injury that the emotional disease, court, supreme the New York victim of child molestation resulted "from appellate division in Lavanant v. G.A. Ins. upon body intrusion physical the child's America, 73, 79, Co. 164 A.D.2d bodily injury." and therefore is Id. Given (1990), N.Y.S.2d 164 stated that the words injury Wayne that the emotional Town- given should be plain ordinary their ship physical stemmed from a intrusion such, meaning. As the court reasoned upon holding our in that plaintiff, case that the average lay person reading G.A.'s does not resolve the issue of whether a accident would not conclude that plaintiff's unaccompa- emotional distress anguish mental was excluded from the am by physical nied manifestations consti- bit sickness. Id. at 561 N.Y.S.2d bodily injury an tutes under insurance policy. appear As our courts to evolve towards In light of the case law our sister

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 650 N.E.2d at 1211. Twp., distress can constitute only cover tional this definition was intended to external, policy, an insurance we limit our de then under easily narrowly have more jury plaintiffs could been cision to the use of such words. through diagnosis defined to medical susceptible that is proven through can medical evidence. be Nevertheless, our su we are mindful of distinguishing preme court's concern with us, designated In the case before legitimate claims of emotional distress that, purposes evidence demonstrates Groves, spurious ones. See from the mere trial, Dr. was evaluated Rev. Amber Shuamber, 572; 579 N.E.2d 729 N.E.2d (Dr. Witty), a Witty, pastoral Jr. James W. recognized at 456. Other states have Based on psychotherapist. counselor and of the tort is the shock caused the essence responses during Amber's behavior especially horren perception session, counseling Witty diagnosed Dr. kind shock the tort dous event. "The Thus, being clinically depressed. her as requires is the result of the immediate rule, to our we conclude that pursuant may an accident. It be the aftermath of emotional distress cov- Amber sustained body, bleeding, crushed the cries ered under Allstate's and, cases, pain, dying in some words Like Austin's we decide that really a continuation of the which are claim for emotional distress was may Amber's event. The immediate aftermath be injuries but not derivative of Amanda's shocking impact." than the actual more Richardson, P.2d, 193, direct in- 199 rather resulted from her own Gates appear to include emotional trauma not such, distinguish Armstrong 4. As v. Feder injury. (emphasis (Ind. accompanied ated Mut. Ins. denied, denied, added). Armstrong, Allstate's Ct.App.2003), reh'g trans. Unlike bodily injury, where we observed that defined qualifier "results it" does not contain the from sickness, "bodily injury in its definition. it,"" death which results did disease or from

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