Is emotional distress covered as a bodily injury in an insurance policy?
Review how Pennsylvania courts have ruled on the question in three auto claims cases.
Awaiting argument at the Pennsylvania Supreme Court, Kramer v. Nationwide’s outcome will be of great interest to attorneys across Pennsylvania, as the outcome could shed light on the question of whether emotional distress is covered as a bodily injury under automobile insurance policies and the Motor Vehicle Financial Responsibility Law (MVFRL).
In Kramer, 271 A.3d 431 (Pa. Super. Ct. 2021), the insured’s son invited another man to the insured’s home while the policyholders were away from the residence. While at the residence, the insured’s son provided the other man with drugs that ultimately were deemed to have caused his death. Allegedly, the son was widely known for his sale and use of controlled substances. The deceased’s mother filed a wrongful death and survival action against the son for his alleged negligence in providing the drugs to the deceased. The deceased’s mother also filed suit against the parents for their alleged negligence in allowing their son to use the house in a manner that facilitated the death of her son. The wrongful death action brought by the deceased’s mother sought damages for bodily injury, as well as damages that are rooted in emotional distress, mental distress or injury or any similar injury.
Under the policy issued to the parents, the insurance company was obligated to “pay damages an insured is legally obligated to pay due to an occurrence resulting from negligent personal acts or negligence arising out of the ownership, maintenance or use of real or personal property.” The policy also stated that the insurance company would “provide a defense at its expense by counsel of choice.”
However, the insurance company denied a defense to the parents, citing exclusionary language in the policy for “bodily injury or property damage resulting from the use, sale, manufacture, delivery, transfer or possession by a person of a controlled substance.”
Of note, the policy at issue in Kramer defines bodily injury as “bodily harm, including resulting care, sickness or disease, loss of services or death. Bodily injury does not include emotional distress, mental anguish, humiliation, mental distress or injury, or any similar injury unless it is a direct result of bodily harm.” The policy makes a distinction between emotional distress and bodily injury and explicitly states when emotional distress damages are covered.
The insureds filed a declaratory judgment action in the Montgomery County Court of Common Pleas seeking to compel the insurance company to provide a defense to the claims brought against them. Upon the cross-filing of motions for summary judgment, the trial court ruled that the insurance company was required to provide a defense, reasoning that the parents’ alleged liability in the underlying action was rooted in negligence, which was distinct from the type of occurrence contemplated in the exclusion.
On appeal, the Superior Court affirmed the ruling of the trial court, holding that, while the relevant portions of the policy can be construed to exclude coverage to some, but not all, of the damages sought, the insurance company would be obligated to pay out on the covered portions of the underlying claims if the parents were found liable. This obligation to pay triggers the duty to defend the underlying action.
Under Pennsylvania law, a policy cannot be interpreted to mean anything other than what it says, and disputes over coverage must be resolved only by reference to the provisions of the policy itself. The Kramer court interpreted the plain language of the homeowner’s policy to mean that the exclusion to controlled substances applies only to bodily injury. Bodily injury, as defined by the policy and interpreted by the Superior Court, only includes emotional distress, mental anguish, humiliation, mental distress or injury, or any other similar injury if it is a direct result of bodily harm. The Superior Court reasoned that “the decedent’s family is also potentially seeking other types of damages rooted in its ‘emotional distress, mental distress or injury, or any similar injury,’ none of which would be the direct result of bodily harm to the decedent’s family itself.”
In reaching its holding as to emotional distress, the Kramer court cited only its 2010 decision in Rettger v. UPMC Shadyside, a medical malpractice and wrongful death case in which the Superior Court ruled that the “value of the decedent’s services” included “the profound emotional and psychological loss suffered upon the death of a parent or a child where the evidence establishes the negligence of another as its cause. In this case, the jury recognized the depth of the anguish suffered by the decedent’s parents.”
Examples from auto insurance claims
Though none of the following cases were cited or discussed in Kramer, the Superior Court has considered whether emotional distress is covered bodily injury in automobile insurance policies on at least three prior occasions. Nearly 30 years ago, this specific topic was discussed in Zerr v. Erie Insurance Exchange, 667 A.2d 237 (Pa. Super. Ct. 1995), as a matter of first impression at the Superior Court of Pennsylvania. In Zerr, the plaintiff was involved in an incident where a tractor trailer forced the plaintiff’s vehicle off the road. The two vehicles never made contact and the plaintiff suffered no injuries at the time. However, subsequently, the plaintiff began suffering mental illness and emotional injuries, and was diagnosed with post-traumatic stress disorder, driving phobia and anxiety attacks. The plaintiff’s suit was dismissed by the trial court upon the argument of preliminary objections, as the trial court agreed with the insurance company’s argument that because the plaintiff suffered no physical injuries, the complaint failed to state a claim for relief.
On appeal in Zerr, the plaintiffs argued that the insurance company should provide first-party medical and wage loss benefits to the plaintiff for his mental injuries, because physical symptoms resulted from the irregular mental condition. The Superior Court held that the definitions of injury found in the policy and the MVFRL “state that the illness, disease or death on suffers, and to which a policyholder is due a benefit, are those that are the result of a bodily injury.” Because the plaintiff’s injuries were of mental illness that then led to physical manifestation, they were not covered under the policy or the MVFRL.
Ultimately, the court noted that neither the legislature nor the Pennsylvania Supreme Court erected a bridge between bodily injury and mental injury and held that the law stated with certainty that no recovery was possible, by means of the MVFRL or the plaintiff’s policy, for mental injury which is not the result of bodily injury.
However, in Glikman v. Progressive Casualty Insurance, 917 A.2d 872 (Pa. Super. Ct. 2007), the Pennsylvania Superior Court held that a pedestrian who witnessed her husband be struck and killed by a passing motorist suffered bodily injury under the insurance policy. The policy in question in Glikman defined bodily injury as “bodily harm, sickness, or disease, including death that results from bodily harm, sickness, or disease.” The court reasoned that the pedestrian’s PTSD is a disease and that the cause of her PTSD was undisputed. Because PTSD is a disease, she had sustained bodily injury within the meaning of the policy.
The court was careful to draw a distinction between the differing policy languages in Zerr and Glikman. In Zerr, the policy described bodily injury as illness, disease or death resulting from bodily harm. In Glikman, the policy language is such that “disease” is defined as an injury separate from bodily harm. Because the policies differ in their language, Zerr was inapplicable to Glikman.
More recently, the Superior Court again undertook a probing into the validity and continued applicability of Zerr in Evans v. Travelers Insurance. In Evans, the plaintiff was involved in a motor vehicle accident with a tractor trailer, suffered neck and head pain immediately following the accident and was later diagnosed with PTSD. The insurance policy in question in Evans defined bodily injury as “accidental bodily harm to a person and that person’s resulting illness, disease or death.” The language was identical to the language found in the Zerr policy, and the trial court relied upon Zerr in finding that no coverage existed for the plaintiff.
On appeal in Evans, the Superior Court found that the facts of the matter were distinguishable from Zerr, as the plaintiff’s injuries in Evans were undisputed in that “[the plaintiff] suffered both physical injuries and emotional distress in her accident.”
As such, the plaintiff in Evans was entitled to benefits under the policy if the physical harm sustained resulted in an illness. Ultimately, the court reversed and remanded the matter based upon a dispute of a material fact, rebuffing the trial court’s ruling that PTSD was not bodily injury under the policy.
The different outcomes of these three cases and their differing application of relevant case law seemingly leads to the conclusion that whether emotional distress is bodily injury depends on the policy language and the factual circumstances. The different language in the policies led to different conclusions and different applications of Zerr. Neither the Pennsylvania Supreme Court nor the Pennsylvania legislature has set forth bright-line rules as to when emotional distress is bodily injury; however, it can be inferred from the case law to date that the policy language, the language of the MVFRL, and the specific factual circumstances surrounding the injuries control.
Looking forward to the Supreme Court’s consideration of the issues presented in Kramer, its analysis of whether or not the insurance company has a duty to defend is likely to include at least a brief discussion as to whether or not the injuries complained of are covered under the policy. The policy language in Kramer differs from that of Zerr, Glikman, and Evans, though it is more analogous to Zerr and Evans, in that the emotional distress must stem from the physical injury. It remains to be seen whether the Supreme Court will issue a definitive ruling on when and whether emotional distress is “bodily injury,” or whether it will remain a case-by-case and policy-by-policy issue.
Daniel J. Twilla is a litigator whose practice focuses on insurance bad faith, insurance coverage, and commercial litigation. He is co-chair of the insurance practice and extracontractual practice group and a member at the firm. Kathleen P. Dapper is a member with the firm. She focuses her practice on litigation. Adam P. Murdock is an associate in the firm’s Pittsburgh office.
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