Grange Ins. Co. v. Sawmiller
| Decision Date | 07 April 2014 |
| Docket Number | No. 2–13–19.,2–13–19. |
| Parties | GRANGE INSURANCE COMPANY, Plaintiff–Appellee, v. Bradley O. SAWMILLER, et al., Defendants–Appellees, and Sandra S. Dieringer, et al., Defendants–Appellants. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
J. Alan Smith, Lima, for Appellants, Sandra and Michael Dieringer.
Michael W. Sandner, Dayton, for Appellee, Grange Insurance Company.
{¶ 1} Defendants-appellants, Sandra S. Dieringer (“Sandra”) and Michael Dieringer (“Michael”) (collectively “the Dieringers”), appeal the Auglaize County Court of Common Pleas' grant of summary judgment declaring that Sandra's posttraumatic stress disorder (PTSD) was not covered under the automobile insurance policy issued by plaintiff-appellee, Grange Insurance Company (“Grange”). Because “bodily injury” as defined in the Grange policy does not, as a matter of law, include PTSD or physical symptoms stemming therefrom, we affirm.
{¶ 2} On September 8, 2010, Nancy Hertenstein (“Nancy”) and her sister, Sandra, were walking side-by-side westbound on Parkway Drive in St. Marys Township, in Auglaize County, Ohio. Defendant-appellee, Bradley O. Sawmiller (“Sawmiller”), a minor, was driving a 1997 Chevrolet Silverado truck in the same direction on the same roadway at an excessive speed while texting his girlfriend. Sawmiller struck and killed Nancy with his truck. Sandra was not struck but witnessed the accident and its resulting effect on Nancy, suffering severe emotional distress thereby.
{¶ 3} In an earlier case, on April 13, 2011, the Dieringers filed a complaint against Sawmiller; Sawmiller's parents, Dana Gilbert (“Dana”) and Gregory Sawmiller; and, Motorists Mutual Insurance Company (“Motorists Mutual”), the Dieringers' automobile insurer. Sandra's claims stemmed from the severe emotional distress and PTSD she suffered as a result of the accident. Michael asserted a derivative claim for loss of consortium.
{¶ 4} Grange—Dana's automobile insurer, who covered Sawmiller—filed a motion to join the case, but the trial court denied the motion.
{¶ 5} Motorists Mutual filed a motion for summary judgment, arguing that its policy covers only “bodily injuries,” and “bodily injuries” do not include emotional distress and PTSD.
{¶ 6} Sandra, on the other hand, argued that PTSD caused physical injuries to the brain falling within the term “bodily injury.” Sandra submitted several medical studies and reports regarding PTSD-related physical injuries. She also submitted an affidavit from Dr. Joel S. Steinburg, a medical doctor certified in psychiatry and internal medicine, who opined that Sandra suffered from PTSD and “Major Depressive Disorder, Single Episode, Moderate” as a result of witnessing her sister's death on September 8, 2010. Dr. Steinburg based this opinion on his review of witnesses' statements, the accident report, and tests he conducted on Sandra during a two-hour-and-twenty-minute visitation on August 2, 2011.
{¶ 7} Dr. Steinburg further opined that Sandra's PTSD was a “bodily injury” because PTSD: causes brain cell damage and objectively verifiable physical injury to the human brain; shortens the life expectancy of persons who suffer from it; causes atrophy of the memory circuits (hippocampal gyrus); and, is associated with the development of a number of other somatic (bodily) problems, such as the premature development of coronary artery disease and other conditions.
{¶ 8} On February 7, 2012, the trial court concluded that PTSD was not a “bodily injury” under the Motorists Mutual policy. Sandra then appealed that decision to this Court. Dieringer v. Sawmiller, 3d Dist. Auglaize No. 2–12–04, 2012-Ohio-4880, 2012 WL 5207551 (“ Sawmiller I ”).
{¶ 9} On February 10, 2012, following the trial court's decision in favor of Motorists Mutual, Grange filed a separate declaratory judgment action, which is the present case before this Court, asking the trial court to declare that Sandra was not entitled to recover under its policy because its policy also covers only “bodily injuries.” Grange, like Motorists Mutual, argued that “bodily injury” does not include PTSD-related conditions. (Doc. No. 1).
{¶ 10} Grange filed a motion for summary judgment based on the trial court's earlier decision that PTSD-related conditions were not “bodily injuries” under the Motorists Mutual policy. (Doc. No. 42). In response, Sandra filed another affidavit by Dr. Steinburg opining that Sandra suffers from PTSD, and, based upon his examination of Sandra and the medical literature, Sandra suffered a “bodily injury” as that term is used in the Grange policy. (Doc. No. 45, attached).
{¶ 11} On October 22, 2012, we released Sawmiller I, 2012-Ohio-4880, 2012 WL 5207551. There, we first noted that several other districts have held that PTSD-related injuries are not “bodily injuries” under automobile insurance policies. Id.at ¶ 15. We also found that the medical materials in the record demonstrated only that PTSD may cause physical injury, but physical injury is not certain. Id. at ¶ 16. We further concluded that Dr. Steinburg's opinion that Sandra suffered physical injury from her PTSD was not supported by any objective medical tests, such as X-rays, computed tomography scans, magnetic resonance imaging, or magnetoencephalography. Id. at ¶ 17. Finally, we noted that Dr. Steinburg did not aver that Sandra suffered from any other physical effects from PTSD. Id.
{¶ 12} May 3, 2013, the trial court granted Grange summary, declaratory judgment based on Sawmiller I. (Doc. No. 48).
{¶ 13} On May 30, 2013, the Dieringers filed a notice of appeal, which was assigned appellate case no. 2–13–19 and is now before this Court. (Doc. No. 51). They raise two assignments of error.
The trial court erred by granting summary judgment because general issues of material fact existed as to whether appellant suffered bodily injury due to the affidavit of Dr. Steinburg, which offered the unopposed opinion that Sandra Dieringer sustained bodily injury.
{¶ 14} The Dieringers argue in their first assignment of error that Dr. Steinburg's affidavit created a genuine issue of material fact as to whether Sandra sustained a “bodily injury” under the Grange policy, because he averred that Sandra suffered from PTSD, and the PTSD caused physical damage to her brain.
{¶ 15} An appellate court reviews a summary judgment order de novo. Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175, 722 N.E.2d 108 (8th Dist.1999). Accordingly, a reviewing court will not reverse an otherwise correct judgment merely because the lower court utilized different or erroneous reasons as the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distr. Co., 148 Ohio App.3d 596, 2002-Ohio-3932, 774 N.E.2d 775, ¶ 25 (3d Dist.), citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d 217, 222, 631 N.E.2d 150 (1994).
{¶ 16} Summary judgment is appropriate when, looking at the evidence as a whole: (1) there is no genuine issue as to any material fact, and (2) the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). In conducting this analysis the court must determine “that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, [the nonmoving] party being entitled to have the evidence or stipulation construed most strongly in the [nonmoving] party's favor.” Id. If any doubts exist, the issue must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 359, 604 N.E.2d 138 (1992).
{¶ 17} The party moving for summary judgment has the initial burden of producing some evidence which demonstrates the lack of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). In doing so, the moving party is not required to produce any affirmative evidence, but must identify those portions of the record which affirmatively support his argument. Id. at 292, 662 N.E.2d 264. The nonmoving party must then rebut with specific facts showing the existence of a genuine triable issue; he may not rest on mere allegations or denials of his pleadings. Id.;Civ.R. 56(E).
{¶ 18} “Bodily injury” is defined in the Grange policy as “bodily harm, sickness or disease, including death that results.” This definition is identical to the definition of “bodily injury” in the Motorists Mutual policy in Sawmiller I. (Grange Policy, Doc. No. 1, attached); Sawmiller I at ¶ 3. The only difference between Sawmiller I and this case is the extent of Dr. Steinburg's averments in support of Sandra's claim. In our prior case, we summarized Dr. Steinburg's affidavit as follows:
Dr. Steinberg's affidavit indicated that on August 2, 2011, he “performed a comprehensive psychiatric evaluation” of Sandra that lasted two hours and 20 minutes. . He also indicated that Sandra underwent four psychological tests, took seven written tests regarding her emotional health, and answered a health questionnaire. Dr. Steinberg also stated that he reviewed the accident report and Motorists Mutual's motion for summary judgment and its recitation of the Policy's definition of bodily injury.
Based on these items, Dr. Steinberg attested that as a result of Sandra's witnessing the accident, she “is suffering from significant psychiatric symptomatology [and] has psychiatric problems she never had before September 8, 2010, including my diagnosis that she is suffering from Posttraumatic Stress Disorder * * *.” Id. at 2–3. Dr. Steinberg went on to state that Sandra's symptoms amount to a bodily injury under the Policy because PTSD causes the following physical harms:
[PTSD] causes brain cell damage and objectively verifiable physical injury to the human brain;
[PTSD] shortens the life expectancy of persons who suffer from it;
[PTSD] causes atrophy of the memory circuits (...
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