Shuamber v. Henderson

• Decision Date: 09 October 1991
• Docket Number: No. 71S03-9110-CV-801,71S03-9110-CV-801
• Citation: 579 N.E.2d 452
• Parties: Katherine SHUAMBER and Gail Shuamber, Appellants, (Plaintiffs Below), v. John HENDERSON, and American Employers Insurance Company (Intervenor), Appellees, (Defendants Below).
• Court: Indiana Supreme Court

Page 452

579 N.E.2d 452

Katherine SHUAMBER and Gail Shuamber, Appellants, (Plaintiffs Below), v. John HENDERSON, and American Employers Insurance Company

(Intervenor), Appellees, (Defendants Below).

No. 71S03-9110-CV-801.

Supreme Court of Indiana.

Oct. 9, 1991.

Daniel H. Pfeifer, James W. Myers, III, Sweeney, Pfeifer & Blackburn, South Bend, for appellants, Katherine Shuamber et al.

R. Kent Rowe, Richard A. Cook, Rowe, Foley & Huelat, South Bend, for appellees, John Henderson et al.

Aaron M. Black, Roby & Hood Law Firm, Fort Wayne, amicus curiae, for The Indiana Trial Lawyers Ass'n.

ON PETITION TO TRANSFER

KRAHULIK, Justice.

Gail Shuamber and her daughter, Katherine, (Plaintiff-Appellants below) seek transfer after the Court of Appeals affirmed the entry of partial summary judgment against them and in favor of American Employers Insurance Company (Defendant-Appellee below) ("American"). Shuamber v. Henderson (1990), Ind.App., 563 N.E.2d 1314. In their petition to transfer, the Shuambers raise the following issues:

1. Whether the trial court erred in granting partial summary judgment in favor of American as to Shuamber's claim for negligent infliction of emotional distress; and

2. Whether the trial court erred in granting partial summary judgment in favor of American as to Shuamber's claim for recovery of punitive damages from their underinsured motorist coverage.

Because we find that the Shuambers should be allowed to pursue their claims for negligent infliction of emotional distress, we now grant transfer.

On March 14, 1988, an automobile driven by John Henderson collided with an automobile driven by Gail Shuamber. Gail and her daughter, Katherine, a passenger, suffered various physical injuries. Gail's son (and Katherine's brother) Zachary, also a passenger, was killed. Gail and Katherine filed a complaint against Henderson seeking a recovery for their personal injuries. Henderson's insurance carrier, Pafco, obtained leave to intervene in the litigation, deposited the proceeds of the policy with the clerk of the court, and was discharged. Shuamber's carrier, American, was also granted leave to intervene because American may become obligated to the Shuambers by virtue of underinsured motorist coverage it provided to the Shuambers. Answers from the Shuambers to interrogatories propounded by American indicate that, as part of their injuries, they seek recovery for mental anguish they experienced as a result of Zachary's death. Asked to describe the severity of the mental distress claimed and the cause which triggered the suffering, Gail answered:

Extreme loss and trauma do [sic] to her son's death, confusion to why this tragedy occured; a decrease in appetite, facts and denials; disturbance, depression and loneliness.

To an identical interrogatory, Katherine answered:

Kathyrn [sic] Shuamber saw her brother get hurt in the accident in question. Since Zachary's death she asks her mother, Gail Shuamber, questions such as: 'Why wasn't it me; Why did that man have to be drunk' Katie remembers her mother screaming after the accident and she is very concerned about her mother. In a mother's day card she wrote, 'I hope you won't be sad.' Katie also won't let any of her friends talk about Zachary in front of her mother, so as to try and protect her.

The parties do not dispute the fact that Shuamber's claim is based on the emotional trauma allegedly imposed on them as a result of observing a member of their immediate family sustain mortal injuries in an automobile collision. They do not seek recovery for emotional trauma arising out of or caused by their own physical injuries. In addition, the Shuamber's complaint seeks punitive damages from American, pursuant to the underinsured motorist coverage, on account of Henderson's conduct.

After receiving the answers to interrogatories, American filed a motion for partial summary judgment on the grounds that Indiana does not permit recovery for negligent infliction of emotional distress under the factual circumstances present in this case and that punitive damages are not available with underinsured motorist coverage. American's motion was granted by the trial court. Accurately stating the current law of Indiana, the Court of Appeals For the reasons discussed below, we now grant transfer to vacate the opinion of the Court of Appeals and reverse the entry of partial summary judgment relating to negligent infliction of emotional distress.

affirmed the entry of partial summary judgment on both issues. Shuamber v. Henderson, 563 N.E.2d 1314.

Before addressing the issues raised by the parties, however, we first recite the familiar standard by which we review the granting of motions for summary judgment. We apply the same standard applicable to the trial court: only if the pleadings and evidence sanctioned by Indiana Trial Rule 56(C) show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law should summary judgment be granted. T.R. 56; Cullison v. Medley (1991), Ind., 570 N.E.2d 27, 28. Any doubt about the existence of a fact or the reasonable inferences to be drawn from it is to be resolved in favor of the non-moving party.

I. Negligent Infliction of Emotional Distress

A. Current Law--The Impact Rule.

Shuambers argue first that existing Indiana law allows them the opportunity to prove their case. We do not agree.

Unquestionably, Indiana has a long-standing and well-established rule that damages for mental distress or emotional trauma may be recovered only when the distress is accompanied by and results from a physical injury caused by an impact to the person seeking recovery. New York, Chicago, & St. Louis R.R. Co. v. Henderson (1957), 237 Ind. 456, 477, 146 N.E.2d 531, 543; Boston v. Chesapeake & O. Ry. (1945), 223 Ind. 425, 428-29, 61 N.E.2d 326, 327; Indianapolis St. Ry. v. Ray (1906), 167 Ind. 236, 245-46, 78 N.E. 978, 980. The mental injury must be the natural and direct result of the plaintiff's physical injury. Boston v. Chesapeake & O. Ry., 223 Ind. at 428-29, 61 N.E.2d at 327; Little v. Williamson (1982), Ind.App., 441 N.E.2d 974, 975 (and cases cited therein). This rule is known as the "impact rule" because of the requirement that there be some physical impact on the plaintiff before recovery for mental trauma will be allowed. This has been the rule in Indiana for nearly one hundred years, Kalen v. Terre Haute & I.R.R. Co. (1897), 18 Ind.App. 202, 47 N.E. 694, and has it origins in England. See, Pieters v. B-Right Trucking, Inc. (1987), N.D.Ind., 669 F.Supp. 1463, 1467. The rule, as applied in Indiana, has three elements: (1) an impact on the plaintiff; (2) which causes physical injury to the plaintiff; (3) which physical injury, in turn, causes the emotional distress. Boston v. Chesapeake, 223 Ind. at 428-29, 61 N.E.2d at 327.

Here, where the emotional trauma of mother and daughter was triggered by the death of Zachary, rather than as a result of their own physical injuries, application of the general rule now existing in Indiana law would not permit a recovery because the Shuambers have not met all of the requirements under the "impact rule." Although they were involved in a physical impact (element 1), as a result of which they sustained physical injury (element 2), the emotional trauma was not a direct result of their physical injury. Thus, element 3, mental trauma caused by and arising out of the physical injury, is absent.

The Shuambers alternatively argue that the facts of this case fall within the intentional conduct exception to the impact rule. They claim that, because Henderson acted intentionally in injuring them, they need not show trauma resulting from the physical injury. Indiana courts have recognized an exception to operation of the impact rule in cases where the defendant's conduct was "inspired by fraud, malice or like motives involving intentional conduct." Naughgle v. Feeney-Hornak Shadeland Mortuary, Inc. (1986), Ind.App., 498 N.E.2d 1298, 1301. See e.g. Montgomery v. Crum (1928), 199 Ind. 660, 683-84, 161 N.E. 251, 260 (intentional abduction of a child); Kline v. Kline (1902), 158 Ind. 602, 64 N.E. 9 (attempted arson); Lazarus Dept. Store v. Sutherlin (1989), Ind.App., 544 N.E.2d 513, 526 (false imprisonment, malicious prosecution and defamation); Groves v. First Nat'l. Bank of Valparaiso (1988), Ind.App., 518 N.E.2d 819, 829 (fraudulent Clearly, under the current rule of law, the impact rule would preclude recovery for the Shuambers' mental injuries. We believe, however, that the impact rule needs to be re-examined. ¹

concealment of liens and encumbrances). We find nothing in the record to suggest that Henderson's actions fall within this exception. Nor have the Shuambers alleged any intentional tort which would bring them within the recently announced rule in Cullison v. Medley, 570 N.E.2d 27 (where intentional torts are concerned, recovery for emotional distress is now permitted in the absence of any physical injury if the tort is one which would foreseeably provoke an emotional disturbance of the kind normally to be aroused in the mind of a reasonable person).

B. Re-examination of the Impact Rule.

The Shuambers urge us to abandon the impact rule and permit recovery for negligent infliction of emotional distress. They claim that the policy reasons advanced for continuation of the impact rule are no longer valid. American, on the other hand, argues that there is insufficient evidence that the policy reasons are no longer valid, and that Indiana statutory law provides a remedy.

Three reasons are traditionally given in support of retaining the impact rule and denying recovery for mental distress unrelated to physical injuries: (1) fear that a flood of litigation will result if claims of this nature are allowed; (2) concern that fraudulent claims will be made (and rewarded); and (3) difficulties in proving a causal connection between the negligent conduct...