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Introcluction
The law, like psychology, has
slowly cleveloped to tecognize that
families are coordinated, interconnected and interdependent organisms
in which each member plays an important role. Trial lawyers have long
observed the devastating effects that
injury or death of one member has
on other members and the farrily as a
whole. In cases of catastrophic injury
covered by casualty insurance. Consequently, expanding the tort law has
provokecl a line of appellate cases
examining issues of whether fartly
rnember injuries and damages are
covered by the auto casualty policies
and whether they trigger "Each Accident" limits of coverage as opposed
or death of one mernber, devastation
to the others and rents in the fabric
to "Each PeTSon" limits of coverage,
which is tlpically much less than the
"Each Accident" coverage ümits.
This article expiores those situations in which Montana tort law now
of
recognizes secondaty injuries to fam-
the farnily are inevitable. Flistori
cally, however, damage to family
members caused by severe injury, or
of one was not cognizable in
tort cxcept whcrc direct economic
cleath
causation was provable.
Morcover, casualty insurance
policies u'ere drafted with "Each
Person" and "Each Accident" and
"Limits of l-iabi.lity" clauses based
on the assumption that benefit limits
were defined by whether one or more
persons suffered direct physical
trauma and injury in an accident,
Neither tott law nor insurance law
macle room for the possibiìity that a
wife would suffer ernotional injury
from watching her husbancl's violent
death when a semi colliclecì with his
farm eqrupment;z or a mother v¡ould
suffer when watching het chiÌd severely injured
in
a crosswalk;3
or
a
father would suffer cadng for the
bowel and urinaty functions of his
incapacitated chjlcl run over wh.ile
roller
skating.a
Since the 1980s, however, the
Montana Supreme Court has signifì
cantly expânded the situations for
which tort law wiÌl compensate f¿mi.ly members of those suffeting severe
injury or death, However, expanding
tott
lau¡ does nothing to secure adequate recovery fot the family unless
the newly recognized claims are aÌso
Prcn 22
ily members resulting from primary
severe injuries or death of anothet
family member, which recognirion
may invoke additional auto insurance
colrerage. The author will fìrst make a
short survey of the development of
Montana tort law insofar as it has
come to take cognizance of family
injuries and will then look at the
application of insurance law to those
claims with special emphasis on recent câses. Time flies, and the author
notes that it has been seven years
since "Insufance coverage for Dam-
for Emotional Distress in Montana" appeatecl in this publication in
Summer 2004.s That article provides
a more in-depth treatment of emotionai clistress cases. A summaty of
that art-icle's history of tort development is a good place to begin out
fact, many of the claims have been
dcemed dcrjvativc so as not to triggcr
a second ìimit, but others have attained the staLus of an independent
"bocLily injury" to a famlly member
such that the "Each Accident" insurance iiability l-imit is triggered, invariably doubling the limit of recovery.
Some of the cases that will be discussed do not involve family member
claims but develop emotional distress
claims that could be pressed by family members. !üe will approach these
claims and damages as they apply to
family membets, because it is through
famtly members that the plaintiff 's
Iawyer secures adequate compensation for the damages the family suffers. The same claims in non-famiiy
members might end up competing
for [mlted insurance ]imits. We will
use "Each Person/Each Acciclent"
and "Per Person/Per Accident" to
be interchangeable.
I. DEVELOPMENT
OF
FAMILY MEMBER CI-AIMS
IN MONTA}IA TORT I-AW
ages
analysis.
We will use the term "family
injuty" to desctibe that class of injury and clamage a family member
suffers when another family member
is severely inlured or kjlled. Nüe cannot call the family meml¡et class
"derivative" or "parasitic" claims,
because either term suggests that
family mcmber claims are automatically not so distinct and independent
as to trigger e separate insurance
Jimit, which is actually our inquiry. In
A. Recognizing family members'
sorrow, mental distress, and grief
in wrongful death cases
It
was not until 1983 that, in
Hi// Track Unes,6
J)aw.ron u. Hi// d2
Montana abandoned the "EngJish
Rule" that one could not recovet for
emotional pain, even for the cleath of
family members, because such a clamage had no pecuniary value. Montana
permrtted recovery for loss of society
and companionship only insofar as
one could demonstrate a pecuniary
vùuo Miry u. Rocþ Moantain Be//
Telephone
(1909);? and Hollingsworth
u.
Daui.r-Daþ Estate.r Copper (1909).8 In
I)aason u. Llill d2 Llill Truck Lines, the
Montana Supreme Court held that
Truer Tn¡Nos - Sulruan
2011
of our inquiry
damages for the sorrow, mental clistress, or grief of the parents of a
deceased minor are recoverable under
'he wrongful death statute, MCA27.-5L2 (1979), overruling Miry and
ered only once."l3 Part
Hollingsworth.
B. Recognizrng family members'
emotional distress at othet'.s severe
A brief review of the wrongful
death/survival action remeclies available when a famtly member is killed
is necessary here. By statute, Montana
recognizes two civil actions that can
arise from the death of an individual.
MCA
S 27-1.-507, establishes what is
called by convention the "survival"
action, the civil action that existed in
favor of the decedent before his or
her death. By virtue of the statute,
the action survives the death as an
asset of the estate and can be pressed
by the decedent's personal representative. This survival action covers
claims that came into eústence whiie
the decedent was still a)we. Hern u.
Ins. Co. of llliruois, (2005).e If a
decedent survived persona-l injuries
for "an appreciable length of time"
\efore dying ftom those injuries, the
Jurt recognizes a survival action as
Safeco
it did in
J'tephens u. Brown (1.972)10
where the dececlent was struck by a
motorboat, knocked into the u/ater,
and drowned. The court there held
the time it took from the impact until
death by drowning was an "appreciable length of time." The corollary
is that there is no survival action if
the person died instantaneously.
.îtarkenbørg u. State (1997).11
While the survival action belongs
to the estate of the deceased petson,
MCA S 27-1.-51.3 recognizes a separate action fot wrongful cleath, which
the court in Fisher u. Missoala V/hite
Pine J'ash Co, (1,974),12 said creates an
independent right in designated survivors for the damages they sustained
as a result of the decedent's death.
I-Ience, the wrongful death acdon
then is which family member damages can be addtessed in which of
these twc¡ causes
of
action.
injury or death
,4.t the same time
it decided
I)atuson, the Montana Supteme Court
issued Ver¡lønd a. Caron Trantþort
(1983)14 which followed the landmark
1968 California case of Dillon u.
I"Æ," allowing a bystander recovery
for negligent infliction of emotional
distress regardless of whether the
bystander suffered any physical imp^ct ot wâs even in the "z<¡ne of
danger." The Montana couft in
Versland requrred that it be reasonably
foreseeable that the defendant's conduct that caused injury or death to a
family member would also cause
mental distress to another family
member who witnessed the accident.
A family member bystander claim has
thtee required elements of proof:
(1) the emotional impact came from
a serrsory and contemporaneous perception of the accident; (2) there
must be a close relationship between
the plaintiff and victim; and (3) the
victim must be killed or sustain serious physical injury as a result of
defendant's negligence. In Ma¿¡aire u.
State (1992), the cout made it plain
that a family member who was not
at the scene could not recovet unclef
the Versland standard.l6 We should
also note that Ver¡land did not
require physical manifestation of
the emotional trauma.
C. Recogruzìng emotional distress for
substantial invasion of protected
interest absent physical or mental
injury
both cases of false imprisonment in
jai1, the court allowed compensation
in situations that did not involve
physical or mental injury. The court
in Johnson determined that there is a
difference between injury and distress
and held that emotional distress
could be compensated if the tortious
conduct resulted in a substantial
invasion of a legally protected interest and caused a significant impact
upon the person of the plaintiff.
In fìirst tsank, (\tr-4.)-Bi//ingt u,
Clark (1989),1e the court adopted
comment þ) of the Restatement
(Second) of Torts S 46 (1965) which
requires that, "The law intervenes
oniy where the distress inflicted is so
sevefe that no reasonabie pefson
could be expected to enclure it." The
court found Ciark's testimony in his
bank bad taith case that the he "felr
bad, lost sleep ancl became witirdrav¡n" as inadequate to support such
a claim. Pertinent
to family member
damages, is the fact that the court
found the necessary legally protected
interest to be "the interest in freedom
from emotional distress."
This raises the question, could a
famrly member have a Joltnson u.
Sapersaue claim without physical or
mental injury? Considet th-is actual
fact scenario: Missoula police and
sheriff's depuries responcling to a
nighttime complaint of attempted
purse snatching at a mall mistakenly
stopped a new vehicle driven by a
federal probatìon offìcer ancl occupied by his wife as well as adolescent
daughtet and son. The deputies, with
guns drawn and aimed at the heads
of the probation offìcer and his son,
forced them to lie face clown in the
gravel, their hands handcuffed behind
them, and grrns still trained at their
heads. The probation offìcer's entreaties to take the loaded guns away
cascs that did not in-
from their heads and not to handcuff
27-1,-501,Q) provides that survival
volve family member claims could,
rd wrongful death actions "must bc
coml¡ined in one legai action and any
element of damages may be recov-
nevertheless, apply to family members. In Johnson u. Saper.raue (I984),n
and N//es u. ßtg .5'þ Elewear (1989),18
the son behind his back because of a
recent shoulder surgery were met
with obscenity lacecl orders to "Shut
belongs to the heirs. I-Iowever, MCÁ.
\
Tnr¡r TnnNos
-
SurmrBn 20L1
¡\. line
of
thc
uo!" 'fhc hvsterical wife
Prcn
23
and daughter were rerrroved frctm the
vehicle ancl placed in the back scat of
a patrol car. Question: tJnder
Johnson,
would the rvife and daughter have
emotional distress claims for observ_
ing the treatment of the husbancl ancl
son even though they could not prove
physical or menral injury?
D. Expanding loss
of
consortiurn
claims
rion of mental or physical
impairment must be so oveïwhelming and severe that
it causes the parent-chìld
reiationship to be destroyed
or neady destroyed.
Â
husband's right to loss of
consortium damages was recognizecl
at Briush colrtmon law. Federal courts
were fìrst to acknowledge a Montana
wife's nght to consortium damages in
Dnft ,. l-ipuzan
(1,961),20
Llightotuer (1963),21 and
Datton
IlaÌl
u.
u. United
Støtes (1967).22 The Monrana Supreme
Court followed suit jn ßaìn u. Gleason,
(1986).23 The court in pence u. Fox,
(199 1)24 confi
senous, permanent ancl clis_
abling menral or physical rnjury compensable under
Montana law;
(2) the parent's ultimate condi-
rmed that.Montana
allows loss of consortium claims,
pursuant to Montana'.s \X/rongful
Death Statutes, by a parent whose
child has been kiìled, and by a chil<l
whose parent has been killed."25 In
Pence, the court held that minor chil_
dren have a separate cause of acdon
for loss of consortium when p^rent
is rendered quadriplegic. The ^court
concluded, "that under the Montana
case law and statutes as developed,
minor children are entitled to the
support, aid, protection, affection,
society, dìscipline, guidance and train_
of their parent.', The court
quoted with approval the Colorad<>
Federal District Court's term ,,loss of
society ancl companionship,' as being
equally appropriate to ,.loss of con_
sortium" which historically connoted
nghts dedving from a sexual relation_
ship in maniage. In Keek u, St. Vincent
ing
Hospital dy Heahh Care, (1993),26 the
court expanded the minor child's
right to loss of parental consortium
beyond quadriplegia to inclucle any
claim in which:
Irinall¡ in ßeør Medicine u. Unind
Stater Q002),27 the Montana Federal
District Court, on certified quesrion,
allowed pafents recovery for loss of
consorrium
Prcn 24
a
an adult child. The
of developof consortium claims would
Supreme Coutt's record
ment
justify such a holding.
Under present tort law, damage
suffered l:y a fam:Iy member is recog_
nized as the basis for an independent
cause of action that is nevertheless
"parasitJc" to the claim of the person
suffering the direct injury. Hence,
Bain u. Gleason (1986)28 established
that a spouse's loss of consortium
claim is a disrinct and indepenclent
cause of action under tort law, which
is nevertheless, detivative of the
bodily injury claim of the person
suffering the direct physical injury.
Bain has been the precedent in Mon-
tana for classifying claims involving
language such as consortium, grief,
sorrov/ or ioss of care, comfort or
society as parasitic to the claim of the
family member who suffered the
direct physical injury and therefore
"derivative" for insutance purposes.
Tlris has truly becom e the Bain of
consumer counsei's existence.2e
Note that Montana law confuses
the relarionship berween damages for
wrongful death clairns, i.e,, sorrow,
mental anguish, and grief, on the one
hand, and consort_ium damages, such
as loss
(1) a third party tortiously
causes the parent to suffer
of
couft feasoned that the Montana
of
cate, comfort, society, and
companionship on the other. \X/hile
the court has on occasion conflated
these as it did in ctting Dawson u. I-li//
dy I Ii//'Tracking
for rccognizing par_
ents'l:ight to consortium damages for
death of a minor chììd, it also treats
the claims âs separate and distinct
from each other in other cases. Iìor
example, in I-Iern (2005), the court
reversed the mother's tf300,000 consortium verdict for the death of her
daughter and yet uphelcl the 9450,000
verdict for "grief, sorrow, and mental
anguish." The Montana Federal Dis_
trict Court, looking at Montana law
said in Bear Medicine Q002):
These [wrongful death] damages for sorrow, mentai dis_
tress or grief are an element
damages separate from loss
of
of
consortium. 1/. Loss of
consortium damages compen_
sate rhe
of
plainriff for the loss
cafe, comfort, society and
companionship of the dece_
dent, Keele u. St. Vincent Hosþital
eÞ Healtb Care,25B
Mont.l58,
161,852 P.2d 574,576 (1993).
Damages for grief and sorrov¡
compensate the plaintiff for
the mental anguish and anxiery
which occurs as a result
of the
decedent's death. Dawsoru, 206
Mont. At 331.,671, p.Zd at 593.
The difference beff¡een wrongful
death damages for grief and sorrow
as opposed to loss of consortium
damages for loss of society, comfort,
and companionship may still be open
to ar.Épment. Nevertheless, we can
see that the range
of
loss
of
consor_
tium claims has been expanded
greatly in Montana in the last thirty
years. Given changes in our societ¡ it
is inevitable rhat the courr will one
day address consortium damages for
mcmbcrs of same-sex unions.
E. Recognizing Negl_igent Inflictron
of Emotional Disrress (NIIED)
claims
Thc court expressly recognized
the independenr torr of negligent
infliction of emotional distress in
Tnr¡r TnnNos - Su¡r.ruBn
2011
.latco u. I-lrgh Countryr IndEmdenÍ
Pras.r,
lnr. (1995),i') ir mdicious prosecutir.rn
casc. Pric¡r to .\'acco, emotional clistress
was only a parasitic damagc arising
from a host cause of action. In Sacco,
the court held that, "a cause of
acdon for negLigent infliction of
emotionâl clistress will atise under
cìrcnmstanccs u,herc scriclus c¡r'
se\rere emotional clistrcss to thc
plaintiff was the reasonabll' fr:reseeable consecluence of the defenclantt
negl-igent act or omission." The court
also recognized a separate action for
intentional infliction of emotional
distress "where serious or severe
emotional distress to the plaintiff
wâs the reasonably foreseeable conseqllence of the clefenclant's intent-ional
act rlr <¡mission." Thc court prcvi-
ously had allowed emotional distress
damages only in cases of "outragcous conduct."3l f'he court, in recognizing the twin totts for negligent
and intentional infliction of ernotional clistress effectively abandoned
Wrslañ i bystandcr rcquiremcnt,
Johnson's requirement of a substantial
invasion of a legally protected interest and Maqaire't requirement of
"outrageous conduct."
Treichel u. State Farru Mut. Aato.
In¡, Co.
(1997)32
involved a cause of
action for cmotional distress to a
famiìy member suffìciently indepenclent to trigger the "per accident"
limit of auto insurance coverage.
Treichel was ricling bikes with her
husband and saw a cat inÍls,ct a severe
head injury to him from which he
died, The court r:ejectecl the argument
that the claim was merely a clerivative
claim a Ia Rain on the ground that
Treichel herself was actuaLly at the
accident scene. It appeared that the
couTt hacl reinstitutecl the bystancler
recprirement for t:ecovering for
emc¡tional distress.
I-lowever, in 2003, the court in
IY/agw u. Ilirst National In.r. Co. o/
Arterica,33 recognized the emotional
disttess claim of a father who was
not prescnt whcn his sott was grievously injured by being run over by â
truck whiìe rc¡lier-blading. \X/ages
fìlecl his own claitn for negligent
infliction of emotional distress. The
clefense took the position that he
could not sustain an independent
non-derivative claim for negligent
infliction of emotional distress without having witnessed the accident sct
as tc¡ suffer some contemporaneous
irnpact, The court held that a Person
need not be at the scene of the accide11t so as to be a foreseeable plaintiff to whom the defendant woulci
owe a duty that would support a
claim for negligent infliction of
emotional distress.
The court said that, when it
mentioned in "freicþel that she hacl
witnessecl het husband getting killed,
it intended to support the clistinction
of
action for uegligent or
of emotional
clistress arises under citcumsl.arrces
where: (1) serious or severe emoti<.¡nal
distress to the plaintiff was (2) the
cause
intentional infiiction
reasonably foreseeable consequence
of (3) the defendant's negligent ot
intentional âct or omission. Treichel
(1997) cìid not reinstatc the contemporaneous impact requirement of
Wrsland (1983). \X/e shouid note that,
in lY/ages, the court said that witnessing the accident was not necessary to
foreseeability. Consequendy, the family rnember who suffers severe emotional distress as a result of another
family member's negligent bodily
injury may state an independent claim
fcrr NIED, which triggers â separate
c<¡nsortium claims such as Bain and
dicl not mean to suggest that the
limit of insurance.
-Again, in þIenricksen u. \'tate
(2004)34 the court confirmed that one
is not required to be a bystânder to
Íecover damages for emotional cìistress suffered as a result of serious
injury to a famtly member.
Henricksen brought her own
claim for negligent infliction of emotional distress after her three-year-old
suffered skull fractures falling heacl
first through staircase l¡alustrades in
bystander requirement existed again.
To determine foreseeabilty in
NIIID cases, the court saicl one
woulcl consicler, "closeness of the
telaúonship between plaintrff and
victirn, the age of the victim, and the
severity of the injury of the victim
and any other factors bearing on the
question." \ùØhether the person was
â bystancler could be consideted
also, but, by itself, could not be
usecl to conclude that the plaintiff
the Montana State University Library.
Henricksen learned immediately after
thc accident that another chilct had
fallen through the samc staircasc a
couple weeks eadie4 a fact that she
argued caused her emotional distress.
Thc court rejccted any rccluiremcnt
for direct emotional impact upon
the plaintiff from the sensory and
contemporaneous perception of
the accidcnt, citing J'acco and IT/agu
fc¡r the rule that one need not be a
was unforeseeable.
bystander.
The court, in.\'acco (1995), had
previously held that an indepenclent
The court also confirmed that
Henricksen had to meet the heighr
between
NIED claims and loss of
"þre:entatiue goucnxillcrlÍ and trial ly 1wry are tbe heart and hngt oJ' liberfl.
Il/ithottt lberu nn haue no othu"forlifcation n¿¡aitttt bcing ñdden like horces,
fleeced like.rbeerD, utorked
/ike catile, andfed and clothed Ìike ¡aine and hound¡."
Pecn 26
John
Adanu
Tru¡¿ TnpNos - Suvrunn
2011
ened standard of severe or serious
distress required by Saø0. The tdal
court had ruÌed that the family member need only meet that standard if
there was no physical or mental injury. Henricksen introducecl expert
testimony of PTSD. The Montana
Supreme Court held that emotional
distress must always be severe or
serious regardless of physical or
mental manifestation. The court cited
Restatement (Second) of Torts, $ 46,
comment k for the proposition that
"[n]ormally, severe emotional distress
is accompanied or followed by shock,
illness, or other bodly harm, which in
ittelf affords evidence that the distress
is genuine and severe." The court
said, "A juty instruction on emotional
distress should state that the severe
and setious standard applies and that
this standard can be met by proof
that emotional distress resulted in
shock, illness, or other bodily harm."
F. Limitìng the "serious
or severe"
standard to independent claims
Sacco's standard that the emotional
distress must be serious or severe to
be cognizable in coutt only applies to
the independent tort claims of negJigent or intentional infliction of emotional distress. The court in Jacobrcn u.
Allstate In¡. Co. Q009),3s overturned a
district court ruling that the plaintiff
in an insurance bad faith case v/as not
entitled to an instruction for emotiona-l disttess damages unless he
made a threshold showing that they
were serious of severe as required
by the court in First Bank
Billings u. Clark,
in
N.A.)
-
1989.
The court after conceding that it
had created confusion as to which
standard applied in its decisions in
Morton (2007)36 anå l-,orang u.
lns.
Co. (2008)37 held that the
forlis
"serious or severe" stanclard of Sacco
applies only to the stand-alone independent tort causes of action and not
emotjonal djstrcss clamages parasitic
to an undedying tort. Fot those
.f eltryr u,
Tnlar Tn¡Nos
-
Su¡r,l¡vren 2011
claims, the court adopted the standard set out in Montana Pattern Instructions (À4/P.L2d 25.02, 15.01 -03)
which states that "[t]he law does not
set a defìnite standard by which to
calculate compensation for mental
end emotional suffering and distress."
In that decision, the court also noted
that emotional disttess damages are
availal¡le in the context of third-party
UTPA claims cofltlrerry to the apparent assertions of Allstate.3s
the family member was foreseeable. Sacco (1,995).
4.
or death which clamages are
parasitic to an undedying tort
claim arising out
or death.
3. Family members may press
a stancl-alone tort claim for
intentional infliction of emotional clistress where the
tortfeasor acted with substan-
tial certainty of risk of injury
or death, serious or severe
injury or death occurs, and
resulting cmotir¡nal injury to
of
that injury
Jacobsen (2009); and
Pe¡che/ (2009).
5. A family member may
recover em<¡t-ional distress
damages suffered absent any
mental or physical in¡ury if
the tortious conduct resulted
in a substantial invasion of a
legally protected interest and
causes a signifìcant impact
upon the person of the plaintiff, i.e,, watching the police
mistakenly take one's spouse
out of the house at mght
handcuffed and at gunpoint.
\(/e summarize by sayrng that,
among the tort claims recognized by
the Montana Supreme Court for
addressing secondary injury to family
members arc the following:
abIe. Sacco (1995).
may
fecovef emotional distress
damages suffered as a result
of another member's injury
G, Summary of Available Family
Member Tort Clarms
1. Family members may recover fot damages for sorrow,
mental disttess ot grief over
the death of a famiJy member
under the wrongful death statute, MCA 27-1.-51.2 (1979).
I)aw¡on (1983).
2. Family membets may press
a stand-alone tort claim for
negligent infliction of emotional disttess where serious or
sevefe cmot-ional distress to
the plaintiff was the reasonably foreseeable consecluence
of the defendant's negligent
act or omission, i.e., any claim
rvhere the tortfeasor negligently causes serious or severe
injury to the vicrim and resulting emotional injury to the
farrrily rnember was fotesee-
A family member
Johnton (1984); and Ni/es (1989).
6. A husband or wife may
press a claim for loss
spouse's consortium.
of
A parent or minor child may
press a claim for loss of comfort, society and companion7.
ship
of
the other.
Pence (1.991);
and Keele (1993).
B. A parent may press a clasm
for ioss of comfort, socicry
of an
adult child. Bear Medicine
ancl companionship
Q002); and Hern (2005).
II. INSURANCE
COVERAGE
OF FAMILY MEMBER TORT
CI-AIMS UNDER MONTANA
LA$ø
.4.,
The basic policy language
The Insurance Setvices Office,
trade organizatson for the property/
casualty insurance industry, drafts the
standatd policy language for auto
policies commonly used in Montana.
The basic insuring agreerìent for the
Personal A.uto Pohcy I-iabiliry PART'
P¡icp.27
tnaximum limit of liabilitY for
all damages fot "boclily injut:y"
resulting from any one auto
Â_],IABII,ITY COV]]Iì,A.GE,
INSUzuNG AGREE,MtrNT'
provides in pertinent partl
accident.
We will pay darnages for
"bodily injury" or "property
damage" for r¡¡hich any "insured" becomes legally respon-
B-MEDICÂL P,{YMENTS CO\T,RAGE INSUR]NG
AGREEMENT provides:4l
The
sible because of an auto
accident.3e x * x
Ä.
P-A.RT
\X/e
will
pay reasonable ex-
penses incurred
for necessarY
medical and funeral services
because of "bodily injurY":
The poJicy defines" Bodily In-
jury" for ail coverages as follows:a0
L, Caused by accident; and
2. Sustained by an insured.
"Bodily Injury" means bodily
harm, sickness or disease,
including death that results.
The "Limit of Liabilìty" clause
for the liability coverage provides:
ThC PART C-UNINSURED
MOTORIST COVERAGE INSURING,A.GREIIMENT provides:
We will pay compensatory
The limit of liabiJity shown in
damages wtuch an "insured" is
the Declarations for each person for Boclily Iniury Liability
is our maximum limit of l-iability for all damages, including
legalty entitled to recover from
damages fot care, Ioss of setvices or death, arising out of
"bodììy injury" sustained by
any one person in any one auto
accident. Subject to this limit
fot each person, the Limit of
Iiability shown in the Declatations for each accident for
Bodìly Injury Liability is our
the owner or operator of an
"uninsured motor vehicle
because
of "bodily iniury":
1, Sustained by an "insured," and
2. Caused by accident.
The "Limit of Liabiliry" clause
is essentially identical to that for the
Iiability coverage.
B. Emouonal distress covered
"bodily injury''
as
'lreichel u. State f;arn Mat.
Auta
In¡. Co. (1997)42 helcl that negligent
inflict-ion of emotional distress to a
family member triggers an adclitional
limit, the "per accident" limit, of
auto insurance coverage. Treichel was
riding bikes with her husband and
s^w
^
car
inflict a severe head injury
to her husband from which he died'
The court chstinguished Treichel's
claim from Bain because Treichel was
at the accident so that she had a clitm
that was not patasitic or derivative.
As mentioned above, Treichel sounded
like resurrecrion of Wrclandl lrystander requirement, until the court
in Il/ages in 2004 said one could recover for NIED without ever having
been to the scene of the accident,
The plaintiffs' bar v¡as heartened by
the decisions in Treichel and Il/agu.
C. Emotional distress not covered
as "bodily
injuty"
However, coming shotdy after
the decision of. Jacobsen u. Fann(Jnion
Mwtaal Insurance Comþary in
ers
200443 was a blunt reminder that tort
ancl insurance law do not necessatiìy
converge. Jacobsen held that emotional
IVages,
distress was not coverecl as "bodily
injury" under the auto policy, Jacobsen
found an auto crashed in a wheat
field and treated the driver's head
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Tru¡r TrurNos - Sunrvrpn
2011
injudes only to learn, when the driver
was rernoved ftom the car, thathe
hacl actualiy shot himself in the head
in a suicide attempr from which he
later died.
Jacobsen claimed damages for his
emotional distress from his own auto
insurer, Farmers Union Mutual, under its UM and Mccl Pay coverages.
Fatmers Union Mutual refused any
benefìts for Jacobsen's resulting emotic¡nal distress on the grounds that
they did nor consritute "bodily injury" within the meaning of the UM
statute S 33-23-201, or the UM policy
âgfeement. Farmers Uruon Mutual's
UM basic insuring agreement contained stanclard language:
\fle will pay
all.
sums the "in-
sured" is legally entitled to
recover as compensatory damages from the owner or driver
of an "uninsured motor vehicle." The damages must result from "bodily injury"
sustained by the "insured"
caused by an "accident." The
owner's or drjver's l-iabiìity for
these damages must result
from the ownership, maintenance or use of the "uninsured motot vehicle."
The poìrcy's defìrutlon of "boclily
injury," which is consistent with the
statute's, was as follows:
"BocLily injury" means bodily
sickness ot disease sus-
injur¡
tained by a person including
death resulting
from any of
these.
'fhe Montana Supreme Court
held, "[T]he term 'bodily injury,' as
defined in Farmers Union UM policy,
is limrted to physicai injury to a person caused by an accident and does
not include emotional and psychokrgical injuries stemming therefrom."
The court disunguished 'ITeichel by
asserting that State Farm's policy in
Tm¡r TnnNos - Suuunn
2011
-l'reichel
did not defìne bodily injury
ancl that the policy cleady covered
such claims as loss of consortium.
Further, State Farm was willing to
cover emotional injudes but only up
to the "one person" Iimitation in the
poJicy. The Treichel court had held
that State Farm was simply estopped
to deny coverage and found that
Carolyn Treichel had suffered an
"independent and clitect" injuty as
was deemed compensable in
Sacco.
For the court in Jacobrcn (2004),
the fact that a person has suffered an
emotional "injury" for purposes of
tort law does not rnean the emotional
injury is "bodily injury" under insurance contract lav¡. The court cluoted
with approval Iìarmers Union's assertion that "[t]here is no dispute that
Montana tort iaw allows for recovery
of purely emotional damages. However, this case involves the interpretation of contract, and tort law is
wholly irrelevant to that interpreta-
to close
the door on insurance coverage for
emotional distress.
rson." Jacohsen Q004) seemed
D. l)ifferentiating coverage based
on policy langtage
Grim as Jacobsen's result was, it
could be avoided in cases of slightly
different policy language. In All¡tate
Insørance Conþaryt u. If,/agner-E llworth,aa
a school chjld, Mathew Rusk, was
severely injuted when an Allstate
insuted ran over him wh.ile he and his
brother Brandon were in a schooi
crosswalk. The mother, Tiffany Rusk,
arrived moments latet to fìnd her son
lying injured and then accompanied
him to the hospital in the ambulance.
Allstate paid out the $50,000 pohcy
limits on thc lloclily Injury coveragc,
but the mother and brother brought
their own claims for negligent inflict-ion of emotional clistress alleging
physical and mental injuries. Both
underwent therapy. Allstate refused to
clefend or indemnify for those claims
on the lrasis of the Jacobten (2004)
decision ancl fìlecl a declaratory acrion
in which it was gtantecì summary
judgment that it owed neither defense
nor inclemnity, Rusks appealed.
The l¡asic BI coverage agreement
provicled in pertinent p^rt th^t,
"Allstate will pay damages which an
insured person is legally oblìgatecl to
pay because of: a. bodily injuty sustained by any person. . ." It defined
"bodily injury" to mean "physical
harm to the body, sickness, disease,
or death, but does not include:
a, Any veneteal disease; b. Herpes;
c. Acquired Immune Deäciency Syndrome (l\.iDS); cl. AIDS Related
Complex (ARC); e. Human Immunodefìciency Virus (FIIV); or any resulting symptom, effect, condition, clisease
or illness related to a. through
e.
listed above," AIso, the policy Limitation of Liability section provided
that, "[t]he limit stated for each person for bodily injury is our total limit
of liabilty for all damages because
of boclily injury sustarned by one
person, inchding a// daruages snstained b1
øn1one else as a result of that boclily
injury." (Court's emphasis added.)
The issue raised was whether the
emotional clistress claims of Tiffany
and Brandon could be covered under
the policy's BI coverage langr:age.
'Ihe court held that the policy woulcl
cover damages for emotiona-l distress
of Tiffany and Branclon because of
bodly injury sustained by Mathew.
The coutt reasoned that the policy's
broad promrse to pây "damages
which an insured person is legally
responsible to pay because of bodily
injury sustained by any person. . ."
means emotional clamages of Tiffany
and Brandon because of Mathew's
bodily injury are covered, Tlrls is a
broacler promise to pay than was
contained tn the Jacobsen (200\ policy.
However, the court then ruled
that the damages for emotional
clistress of Tiffany ancl Brandon
because of boclily injury to Mathew
are clerivative r-lnder l)ain u. C/ea¡on
PecB 29
(1986) and do not trigger separate
Ìimtts of Liabilìty. Uncler S 61-6-103,
MCA (1981) and the Ailstate polìcy's
Limrtauon of Liability clause, such
claims do not trigger addiuonal limits, and the only insutance avaialle
was the single $50,000 limit which
was already paid out,
E. Covered "bodily injury" whete
there are physical manifestations
of emotional disttess
Nevertheless, this still left the
issue whether the pol-icy ianguage
covers claims of Tiffany and Brandon for mental injuries accompanied
by physical manifestations. The court
held that, to the extent they are based
on physical manifestations, Tiffany
and Brandon's claims, fall within the
l'bodily injury" definitron of the
Allstate policy. The court overruled
to the
Jacobsen Q004) in its holcling
contfary. The court reasoned that, in
term
Jacobsen, it had heid that "the
'bodily injury' as defined in Farmers
Union UM policy, is limited to physical injury to a person caused bY an
accident and does not include emotional and psychological injuries
stemming therefrom." However, the
court in this instance said it had ertoneously relied on cases aileging only
emotional distress and had overiooked
a substantial body of cases holding
that emotionai distress accompanied
by physical manifestatic¡ns constituted
bodily injury. The -Allstate policy was
found to be ambiguous in its definition of bodily iniury insofar as the
term could include strictly physical
injury or could include physical manifestations arising from mental or
psychologrcal iniury. Accordingly, the
court reversed the summary judgment
and remanded the case.
Recovery where the emotional
distress has physical manifestations
was confìrmed tn Tacker
old Cady Tucker of Idaho was kiliecl
on Montana Llighway 83 at SeeleY
-
centedine causing the collision,
Cady Tucker died after living an
appreciable length of time.
State Farm paid Bodily IniurY
limits on behatf of McNair as survivorship damages. However, the case
went to trial on issues involving the
$1 mrlhon UIM umbrella coverage
Cady Tucker's stepfathet, Robert
Starr, had with Farmers Insurance
Exchange (FIE). Ultimately, the case
was ttied against FIE in Montana's
Fourth Judicial District where a iury
awardecl f|516,000.
of
the issues on aPPeal was
whether the mother's emotional dis-
One
tress ancl grief in the wrongful death
action constituted "bodily iniury" so
as to l¡e coveted under the UIM
policy coverage. The Montana Supreme Court held that Cady's mother
sufferecl from mental injuries that
were accompanied by physical manifestatìons, which constituted covered
"bodily injury." The court noted that
FIE relied upon
'tJnion
Jacobson u' Farruers
which Limited "bodily
injury to â Person
physical
to
injury"
causecl by an accident. But, Wagner(2004)aó
Ell¡worth (2008) subsequently construed "bodily iniury" to include
mental or psychological iniury that is
accompanied i:y physical manifestations. The court then discussecl in
detail such things as PTSD, sweating,
increased heatt rate, increased respiratìon, psychosis of seeing and hearing her daughter as physical manifes-
tations of emotional distress. This
decision illustrâtes the technique and
evidence necessal:y to Prove physical
manifestation of emotional distress'
Þì.
Barting recovery while the Jacobsen
(2004) window was closed
a. þhrtners Ins.
Exchange (2009).4s There, eleven-year-
Tnr¡r- TnpNos
I-ake while ridrng in a vehicle ov¡ned
and operated by Cushman, a Montanan. Montana resident, Janie
McNair negligently crossed the
Suuunn
20L1
The federal case of King u. |'tate
l;arm F'ire and Cawalry Co. (20I0)q
involved a $600,088.47 ver:dict l(ngs
won against the manufacturer
of
a
log home package. Aftet construction, I(ings discovered numerous
defìciencies in the log package, which
deficiencies breached the contract
specifìcations and inciuded "short
and random length logs, an unacceptable mlx of fìr, spruce and lodge pole
pine logs, a Ìack of 'tie logs' to stabilize the home, logs with a rougher
fìnish than desired which required
additional planing and sanding, undesirable gaps at the corners that required seaLing, and logs that were not
pre-cut." I(ings suecl the log home
manufacturer on multiple counts
including a claim for emotional clistress. State Farm tefused to defencl
any of the claims.
I(ings sued State Farm to enforce
the juclgment, afld State Farm won
summary judgment on all counts,
The Montana Supreme Coutt uPheld
the summary judgments. The issue
before the court Pertinent to this
discussion was whether the undedying complaint alleging emotional
disress as a result of the defendant
log home manufacturer's PerfìclY
constituted "Bodily InjutY" that
would be covered under the CGl,
policy. The coutt held it would not
reasoning that, at the time the complaint was fìled, emotional iniuries or
physical manifestations of emotional
injuties were not considered "boclily
injury" under Jacobsen u. Farmers Matual In¡. Co. (2004)' Allstate Insarance
Co. u. IØa¿ner-Ellsworth (2008), which
allov¡ed physical manifestations of
emotional distress as "bodily iniury"
under liabilty policies, was not the
law of the case, having not been
decided at that Point.
In the underlying case, I{ings
also alleged pt:oPertY damage in an
attempt to trigger the "ProPertY
Damage Liability" coverage' Ilowever, the court held the underlYing
complaint did not allege "property
damage" within the meaning of the
poJicy, because any lest
of
use
of
logs or the horne wasn't causecl
the
bY
P¡cn
31
tl,eir destruction but by receipt of
poor qr.iality materials. The court
found there was no allegation that the
Iogs were injurecl or destroyecl.
is an issue of fìrst impression tn
Iiabiliry" clause for the Bodily Iniury
Montana, and the Montana SuPreme
Court is not bound by the federal
court's detet mination.
coverage provicled as follows:
G, Can the heir's wrongful death
action trigger the "each accident"
H. Triggering the "each accident"
limit for wrongful death with the
right policy language
limit?
Given that, in the case of death,
the decedent's estate is the claimant
for the sutvival aclion, and the heirs
are the claimants for different dam-
of the
in the auto
clause
"Limit of Liability"
policy can make the difference in
whether one can trigger the "Per
accident" limit. In the recent case of
State þ-ørm Mat. Aato. In¡, Co. u' Freler
(2010),4e the court triggered a second
dent" limit of casualty insutance
Iimit of coverage for a wrongful
death claim brought by the infant
daughter of the decedent for whose
death the carrter had already Pa:d a
single limrt on the survival action.
In F\eyr, State Fatm insured an
auto dtiven by Vaii Freyet in which
het husband, Heath Freyer, and infant daughter, Älicia, were passengers. An auto driven bY Manning
collided with the Freyer vehicle on
The Montana Supreme Court has
not addressed this issue, However,
Judge Cebull for the Montana Federal
Court has in State Farm Mutaal Aøto.
Ins. u. Bowen,as in 2005, The issue
there was whether the "Each Person"
ìimit applies when there are sutvival
and wrongful death claims arising
of the injury and death of a
single insurecl, Judge Cebull held
out
that the wrongful death and survival
claims are subject to the "Each Person" limit under the UIM coverage
reasoning that the wrongful death
and survival action is more like the
consortium claim in Bain Qr[ont.
1986) than the emotional disttess
claim in Treìchel (1\4ont, 1.997). He
reasoned that the tortfeasor in the
consottium claim doesn't o.we an
independent or direct duty to the
family member of the victim, while
the emotional distress claim is based
on a direct duty (foreseeability of
injury) to the family bystander. Judge
Cebull also submitted that virtually
every court that has considered the
issue has determined that the wrongful death and survival claims are
subject to the "Each Person" limit.
We should note that, though the issue
in Bowen was UIM limits, the same
argument will apply to BI hmrts, This
PecB 32
the declatations page under
"Limits of Liability-Coverage
Â-tsodily Injur:y, Each Person
Each Accident." Under "Fach
Person" is the amount of coverage for all damages due to
bodüy injury to one Person.
"Bodily injury to one person"
The precise wording
ages on the wrongful death action,
the question rarsed is v¡hether the two
actions should trigger the "each accicoverage?
The amount of bodily injury
liability coverage is shown on
19d' Avenue c¡utside Bozeman, resulting in Heath's death and iniury to the
infant Alicia, who incurred $2,500 in
medical expenses. Manning's insurer
paid the Bodily Injury coverage ümits
for Heath's death presumably to
Heath's estate on the survival action.
State Farm also paid a single "Each
Person" limit of $50,000 for Ileath's
death under its BI coverage and paid
Alicia's medical expensc. State Farm
refused the demand that it pay a second limit, the "Each Accident" Iimit
of coverage to the infant ,\licia for
her claim for wrongful death.
The district court granted summary judgment to State Farm finding
that the "policy defìnition of 'bodily
iniury to one person"'was not ambrguous. Any clarm asserted by Alicia
related to the wrongful death or
survivorship of her father and was
therefore inciuded in the "Each Per-
son" limit. However, the "Limits of
'
includes all injury and damages
to other persons, including
emodonal distress, sustained
by such other persons who do
not sustain bodily iniury. Under
"Each Accident" is the total
amount of coverage, subject to
the amount shown under
"Each Person", for all dam-
to boclily injury to
two or more Persons in the
same accìdent. Pmphasis in
original removed..lso
ages due
The poJicy defined "bodily inas "physical bodily injury to a
person and sickness, disease or death
which results from it. A person does
not sustain bodily injury if they suffer emotional distress in the absence
of physical bodÌly injury." The declarations page shows the "each Person"
limit of $50,000 and the Each Accident limit as $100,000.
The Supreme Court saw the issue
jury"
in Frqer as arising from, "our jurisprudence concerning'derivative damages'and the specific langaage of the
State Farm policy," Said the court:
"Derivative damages are damages
that'derive' from another
person's injury or wrongful
death. They are typically
sought by the spouse or chï-
dren of the injured or deceased person, and include,
among other things, loss of
Truer TnBNos - SuruMun
2011
consortium, loss of support,
grief, sorrow, and mental an-
gtish Mikelson u, Montøna Rail
Unk, lnc.2000 MT 111,299
Mont, 348, 999 P.zd 985. Farner¡ Union Mat. In¡. Co. V. Staples,
2004 MT 1,08,321Mont. 99, 90
P.3d 381." Freyer at fl8,
Uncler Allstate u. Ilagner-E llsworth
(2008),sr the court had established
that, "uncler the policy provision
there at issue, the claims of family
members for derivative losses sustained as a result of another family
member's bodily injury must be re*
covered under the 'each person'limit
of the insured who sustained boclily
injury, But, the State Farm policy here
provided that, "Bodily injury to one
person includes all injury and damages to other persons, including emotional distress sustained by other
persons who do not sustøin bodiþ injury."
(Emphasis added,) The personal
'epresentative representing Alicia
¿ued that the third sentence of the
limit of liability clause rhat confined
derivative claims to the "Each Person" limit did not apply to Alicia
because she was not among the persons "who do not sustain
bodly
injury." The court agreed saying that
to constfue the clause to apply to ali
persons with derivauve claims woulcl
require it to ignore the "who do not
sustain bodìly injury" language.
On the other hand, the court
said, if State Farm's interpretation
v/as reasonable, then the Limit of
Liability provision uzas ambþous
and had to be consrrued in Alicia'.s
favor. The court warned in closing
that their clecision was driven by the
particular langoage of the State Farm
policy before them and that, "Ir is
not our intention here to alter our
'derivative claims' jurisprudence as
rnost recently set forth in LÍ/øgnert.¡tuorth."
Tnrer, TnsNos
Conclusion
Montana tort lav/ has grown to
provide significant remedies for family members who suffer secondary
iniuries or damages by reason of
ditect severe injury
of
cleath
of
loved one. However, insurance and
the law governing insurance dictate
how much the rìghts of tort victims
and their family members who suffer
damages will be vindicated. Language
of the basic insuring agreements,
such as policy defìnirions of "bodily
injury," and "Limirs of Liability',
clauses are crit-ical
on coverage
to court decisions
member inju-
of family
Sunrrvrpn 2011
17.
Mont. 465, 686 P,2d 209.
211,
18. 236 Mont. 455,
771, P.2d 11,4.
19. 236 Mont. 195, 771 P.2d 84.
20.
200 F.Supp.71,
21,. 2L4 F.Supp. 298.
22. 266 FSupp.671.
23. 223 Mont. 442,726 P.2d L153.
24.
Mont. 521, 813P.2d 429.
248
25. Citing, Dawson
v.
Hill,
26.
258
27.
192 li.Supp.2d 1053.
supra,
Mont. 158, 852 P.zd 574.
28. Supra, note23.
29. Pun courtesy of Edìtor
30.
271,
Sheehy.
Mont. 209, 8ó9 P.2d 411.
ries and damages. It is imperative thar
counsel study these clauses intricately
and know the permutations of the
tort cases governing loss of consortium and emotional distress in tandem with the insurance cases.
Dealing with the claims of the
famtly members of persons severely
injured or killed requires a trial
lawyer's best analytical skills and
37.
creativity.
P.3d 186.
ENDNOTES
38. Jacobsen, suprâ, note 35, Fn.3
citìng, Gibson v. \ü/estcrn Fire Ins. Co.,
1. Thank you to Dan Buckley and Pat
for editing, Gary Zadick for
Sheehy
revierving, and2LJack Holland for cite
31. Supra, note 16.
32. 280 Mont. 443,930 P.zd 661.
33. Supra, note 4.
34. 2004 M'I 20,319 Mont. 307,84
P.3d 38.
35. 2009
P.3d 649.
M"f 248,351 Mont. 464,215
36. 207 MT 62,336 Mont. 225, i,54
P3d 561.
2008
MT 252,345 Mont. 12, 192
210 Mont. 267,682P.2d725 (1984)
and Loran v Fortis Ins. Co,, 2008 MT
252,345 Mont. 1.2, 1.92 P.3d 186,
checking,
39, Personal Auto PP 00 01 01 05 pg.
2.
3,
of
206 Monr.31.3, 671, P.2d 583,
40. l)efinitions, Personal r\uto PP
4.
41. ld. at4.
2003 MT 309, 318 Mont. 232,79
P.3d 1095.
5, Trial
Trencìs, Summer 2004, pgs, 26-
3/.
6.
206 Mont, 325,671 P2c1 589.
7,
38
Mont, 521,100 P.971,
8.
38
Mont. 1.43,99 P. 142.
9.
329 Mc¡¡t. 347,125 P3d 597.
10. 1ó0 Mont.453, 503P.2d667.
1,1. 282 Mont, 1,934P.zd1.01.8.
12.
1.64
Mont. 41, 518P.2d795.
13.
Swanson v. Champion Intern. Cotp.,
197 Mont. 509,6461?.2d 1146 (1982).
14. 206 Mont. 313, 611 P.zd 583.
1
13.
2008 MT 240,344 Mont. 445,188
P.3d 1042.
15. 69 Cal.Rptt 72, 441 P.zd 912.
-
a
16. Maquire v State of Montana, 254
Mont. 178, 835 P2d 755.
of
01 01 05 pg. 1
00
13.
42. Supra, note 32.
43, 2004 MT 72,320 Mont. 375,87
P3d 995.
44. 2008 MT 240,344 Mont, 445, 188
I>.3d 1.042.
45. 2009 MT 247,351 Mont, 448,215
Iì3d
1.
46. Supra, note
47. I-EXSEtr
43,
2O1O U.S,
DIST I.]]XIS
49029.
48. 34 MFR
1,
49. 2010 MT 191,357 Mont 329,239
P,3d 143.
50. Id., at $ 7.
51, Supra, note44.
.
P¡cB
33