Estate of Gocha by Gocha v. Shimon

• Decision Date: 10 December 1997
• Docket Number: No. 97-0754,97-0754
• Citation: 215 Wis.2d 586,573 N.W.2d 218
• Parties: ESTATE OF Kyle GOCHA, by Special Administrator Charles GOCHA, Charles Gocha, Jan Gocha, Chet Gocha, a minor, by his Guardian ad Litem, Michael S. Sperling, and Misty Gocha, a minor, by her Guardian ad Litem, Michael S. Sperling, Plaintiffs-Appellants, d Metz Baking Company Health Plan, Subrogated-Plaintiff, v. Joseph SHIMON and State Farm Mutual Automobile Insurance Company, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 218

573 N.W.2d 218

215 Wis.2d 586

ESTATE OF Kyle GOCHA, by Special Administrator Charles

GOCHA, Charles Gocha, Jan Gocha, Chet Gocha, a minor, by his

Guardian ad Litem, Michael S. Sperling, and Misty Gocha, a

minor, by her Guardian ad Litem, Michael S. Sperling,

Plaintiffs-Appellants, ^d

Metz Baking Company Health Plan, Subrogated-Plaintiff, v. Joseph SHIMON and State Farm Mutual Automobile Insurance

Company, Defendants-Respondents.

No. 97-0754.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 10, 1997.

Opinion Released Dec. 10, 1997.

Opinion Filed Dec. 10, 1997.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Timothy J. Aiken and Kelly L. Centofanti, Milwaukee.

On behalf of the defendants-respondents, the cause was submitted on the brief of Michael G. Grzeca of Michael G. Grzeca, S.C. of Green Bay.

Before SNYDER, P.J., and BROWN and ANDERSON, JJ.

ANDERSON, Judge.

The estate of Kyle Gocha, by special administrator Charles Gocha; Charles and Jan Gocha, individually; and Chet and Misty Gocha, by their guardian ad litem Michael S. Sperling (the Gochas), appeal from a summary judgment limiting insurance coverage in favor of Joseph Shimon and his insurer, State Farm Mutual Automobile Insurance Company (State Farm). The Gochas contend that emotional injuries suffered by family members who witness the death of another family member are a separate and independent direct action entitling the emotionally injured family members to liability coverage under the "each accident" limit of $300,000 and not the "each person" limit of $100,000. This is a basic contract interpretation case; as such, it is controlled by the policy language. The unambiguous language of the "each person" limitation in State Farm's policy consolidates the bodily injuries to one person with all injuries and damages to others which result from the one person's bodily injuries. Because the emotional stress of the Gochas would not have occurred but for the injury to Kyle, the "each person" limitation is applicable. We affirm the judgment.

The following facts are undisputed. On August 13, 1995, Kyle Gocha was riding his bike when he was struck by an automobile driven by Shimon. Kyle later died from the injuries he sustained. Four members of the Gocha family either witnessed the accident or witnessed the immediate aftermath of the accident. The Gochas filed suit against Shimon and State Farm seeking damages for Kyle's pain and suffering and for negligent infliction of emotional distress suffered by the Gochas as a result of witnessing the collision and/or the immediate effects of the collision.

At the time of the accident, Shimon had an automobile liability insurance policy with State Farm. The policy set limits of $100,000 for "each person" and $300,000 for "each accident." The Limits of Liability section states:

The amount of bodily injury liability coverage is shown on the declarations page under "Limits of Liability--Coverage A--Bodily Injury, Each Person, Each Accident". Under "Each Person" is the amount of coverage for all damages due to bodily injury to one person. "Bodily injury to one person " includes all injury and damages to others resulting from this bodily injury. Under "Each Accident" is the total amount of coverage, subject to the amount shown under "Each Person", for all damages due to bodily injury to two or more persons in the same accident.

State Farm stipulated to liability for the death of Kyle and paid its "each person" limit of $100,000 to the Gochas. ¹

State Farm also moved for summary judgment seeking a declaration that the applicable limits of the policy were the $100,000 "each person" limitation rather than the $300,000 "each accident" limit. The Gochas argued that their claims for emotional distress increased the limits of liability under the policy to the "each accident" limit. The trial court granted State Farm's motion concluding that "[the] damages of the individual child who was killed as well as the damages of the bystanders, his parents and family are included within the definition of the limit applicable to a single person under the policy." The Gochas appeal.

When facts are undisputed and the issue involves only the interpretation of an insurance policy, a question of law is presented appropriate for resolution on summary judgment. See Smith v. State Farm Fire & Cas. Co., 127 Wis.2d 298, 301, 380 N.W.2d 372, 374 (Ct.App.1985). An appeal from a grant of summary judgment raises an issue of law which we review de novo by applying the same standards employed by the trial court. See Brownelli v. McCaughtry, 182 Wis.2d 367, 372, 514 N.W.2d 48, 49 (Ct.App.1994).

On appeal, the Gochas argue that Bowen v. Lumbermens Mutual Casualty Co., 183 Wis.2d 627, 660, 517 N.W.2d 432, 445 (1994), established an independent claim, separate from the impact victim, for emotional distress injuries to bystanders. The Gochas maintain that their Bowen-type injuries do not derive from Kyle's death; rather, their injuries arise from the trauma of seeing Kyle killed which is a separate, compensable bodily injury under the terms of the insurance policy.

The Gochas correctly point out that the Bowen court recognized the tort of negligent infliction of emotional distress in instances where a family member witnesses the death of another family member. See Bowen, 183 Wis.2d at 659-60, 517 N.W.2d at 445. That the Gochas have suffered Bowen-type emotional injuries is not really contested; it however begs the real controversy issue. What is at issue here is whether State Farm's policy limits the Gochas' otherwise compensable injuries. We conclude that it does.

The controversy requires us to interpret State Farm's insurance policy. Construction of language in an insurance policy constitutes a question of law which we review independent of the trial court. See American States Ins. Co. v. Skrobis Painting & Decorating, Inc., 182 Wis.2d 445, 450, 513 N.W.2d 695, 697 (Ct.App.1994). Insurance policies are reviewed pursuant to the rules of contract construction. See School Dist. v. Wausau Ins. Cos., 170 Wis.2d 347, 367, 488 N.W.2d 82, 88-89 (1992). We must construe the words of the policy provisions to give effect to the parties' intentions, and we must interpret the policy terms as would a reasonable person in the position of the insured. See id. "However, when the terms of the policy are unambiguous and plain on their face, the policy should not be rewritten to include insurance coverage not agreed to by the parties and for which it was not paid." Id. at 367, 488 N.W.2d at 89.

In Richie v. American Family Mutual Insurance Co., 140 Wis.2d 51, 53, 409 N.W.2d 146, 146 (Ct.App.1987), this court denied the claims of the injured person's wife and children for medical expenses and loss of consortium based on the limiting language of the insurance policy. Where only one person was injured, we determined that the policy limited recovery to one single maximum recovery. See Richie, 140 Wis.2d at 55, 409 N.W.2d at 147. The limitation...