Bowman v. Holcomb

• Decision Date: 16 November 1992
• Docket Number: No. CA92-05-088,CA92-05-088
• Citation: 83 Ohio App.3d 216,614 N.E.2d 838
• Parties: BOWMAN, A minor, et al., Appellants, v. HOLCOMB, Admr., et al., Appellees.
• Court: Ohio Court of Appeals

Page 216

83 Ohio App.3d 216

614 N.E.2d 838

BOWMAN, A minor, et al., Appellants, v. HOLCOMB, Admr., et al., Appellees.

No. CA92-05-088.

Court of Appeals of Ohio, Twelfth District, Butler County.

Decided Nov. 16, 1992.

Michael T. Gmoser, Hamilton, for appellants.

Freund, Freeze & Arnold, Gordon D. Arnold and Thomas B. Bruns, Cincinnati, for appellees.

JONES, Presiding Judge.

Plaintiffs-appellants, Lisa and Michael Bowman ("the Bowmans"), appeal a declaratory judgment issued by the Butler County Court of Common Pleas on April 23, 1992 in favor of intervenor-appellee, Auto-Owners Insurance Company ("Auto-Owners").

The parties stipulated the following facts: On September 8, 1988, ¹ the Bowmans' daughter, Angela R. Bowman, a minor, sustained bodily injury in an automobile accident. The accident occurred when Ruth M. Davis struck the Bowmans' car with the car that she was driving. Angela was exiting the Bowmans' car at the moment of impact and became pinned underneath one of its wheels. Mrs. Bowman, the driver, and Mr. Bowman, a bystander, witnessed Angela become trapped beneath the car. Mr. Bowman assisted in lifting the car off his daughter.

At the time of the accident, Davis was covered by an automobile liability insurance policy issued by Auto-Owners. The policy provided liability coverage of $50,000 "each person" and $100,000 "each occurrence." Davis subsequently died of unrelated causes, so the Bowmans brought the present action against John F. Holcomb, the administrator of Davis' estate. The complaint seeks damages for Angela's physical injuries and for the negligent infliction of emotional distress suffered by the Bowmans in witnessing the accident.

After the Bowmans filed suit, the parties entered a contingent settlement agreement. Pursuant to this agreement, Auto-Owners paid the Bowmans $50,000, taking the position that the $50,000 "each person" policy limitation applies. In consideration of the $50,000 payment, the Bowmans agreed to release all claims they may have as a result of the accident if it is adjudicated that $50,000 is the coverage limit. If it is resolved that $100,000 is the policy limit, the Bowmans agreed to waive all claims against the Davis estate in excess of $100,000.

Auto-Owners then intervened in the Bowmans' personal injury suit requesting a declaratory judgment that (1) all of the claims set forth in the Bowmans' complaint arise out of bodily injury to one person; (2) Auto-Owners' maximum liability under the policy issued to Davis for all claims is $50,000; and (3) such limitation of coverage is valid. The trial court ruled that the Bowmans' claims arose from bodily injuries sustained by one person, Angela Bowman; that the maximum liability coverage in Davis' policy is $50,000; and that the policy's limitation of coverage is valid.

Davis' Auto-Owners policy states in pertinent part as follows:

"I. COVERAGES

"A. BODILY INJURY LIABILITY.

"B. PROPERTY DAMAGE LIABILITY. To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of

"A. bodily injury or

"B. property damage

" * * *

"CONDITIONS

"1. * * * [T]he Company's liability shall be limited as provided in Condition 2.

"2. Limits of Liability. The limit of liability expressed in the Declarations with respect to Coverages A and D as applicable to 'each person' is the limit of the Company's liability for all damages, including damages for expenses, care and loss of services, arising out of bodily injury to one person in any one occurrence; the limit of such liability expressed in the Declarations as applicable to 'each occurrence' is, subject to the above provisions respecting such person, the total limit of the Company's liability for all damages, including damages for expenses, care and loss of services, arising out of bodily injury to one or more persons in any one occurrence." (Emphasis added.)

As indicated above, the policy's declarations page provides limitations of $50,000 "each person" and $100,000 "each occurrence." In addition, the policy defines "bodily injury" as "bodily injury, sickness or disease, including death at any time resulting therefrom."

On appeal, the Bowmans argue that because of their emotional distress, they suffered bodily injury in the accident. As a result, the Bowmans claim that the $50,000 "each person" provision allows an additional $50,000 of coverage, up to the $100,000 "each occurrence" limit. We disagree.

This court is of the opinion that, in the context of liability insurance, the term "bodily injury" contemplates only physical injury. Our view is consistent with the definitions of the terms comprising the policy's definition of "bodily injury." For example, Black's Law Dictionary defines "bodily," "bodily injury," "sickness," and "disease" as follows:

"Bodily. Pertaining to or concerning the body; of or belonging to the body or the physical constitution; not mental but corporeal."

"Bodily Injury. Generally refers only to injury to the body, or to sickness or disease contracted by the injured as a result of injury."

"Sickness. Illness; disease. An ailment of such a character as to affect the general soundness and health; not a mere temporary indisposition, which does not tend to undermine and weaken the constitution."

"Disease. Deviation from the healthy or normal condition of any of the functions or tissues of the body. An alteration in the state of the body or of some of its organs, interrupting or disturbing the performance of the vital functions, and causing or threatening pain and weakness. Illness; sickness, disorder, malady; bodily infirmity." Black's Law Dictionary (5 Ed.Rev.1979) 159, 1238, 420.

Also, the Ohio Supreme Court has stated that the term "bodily injury" usually indicates an injury brought on by external violence. Tomlinson v. Skolnik (1989), 44 Ohio St.3d 11, 540 N.E.2d 716. The Lake County Court of Appeals, in concluding that emotional distress is not a "bodily injury" for purposes of automobile liability insurance, took a similar approach. See Vance v. Sang Chong, Inc. (Nov. 9, 1990), Lake App. No. 88-L-13-188, unreported, 1990 WL 174121. In addition, Ohio courts have held that non-physical, consortium-type "injuries" are not "bodily injuries." See Tomlinson and Muniz v. Erie Ins. Group (Sept. 4, 1990), Stark App. No. CA-8075, unreported, 1990 WL 127947. Furthermore, other jurisdictions have limited the term "bodily injury" to physical injury when an insurance policy definition identical to that in the present case was at issue. See, e.g., Mut. Serv. Cas. Ins. Co. v. Co-op Supply, Inc. (D.Mont.1988), 699 F.Supp. 1438; Rolette City v. W. Cas. & Sur. Co. (D.N.D.1978), 452 F.Supp. 125; W. Am. Ins. Co. v. Bank of Isle of Wight (E.D.Va.1987), 673 F.Supp. 760; St. Paul Fire & Marine Ins. Co. v. Campbell Cty. School Dist. No. 1 (D.Wyo.1985), 612 F.Supp. 285; Daley v. United Serv. Auto Assn. (1988), 312 Md. 550, 541 A.2d 632; ...