State Farm Mut. Auto. Ins. Co. v. Ramsey

• Decision Date: 24 February 1988
• Docket Number: No. 1160,1160
• Citation: 295 S.C. 349,368 S.E.2d 477
• Court: South Carolina Court of Appeals
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Candus RAMSEY, Candus Ramsey, Administratrix of the Estate of Deana M. Ramsey, Deceased, and Barbara B. Hellebrand, Respondents. . Heard

Page 477

368 S.E.2d 477

295 S.C. 349

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Candus RAMSEY, Candus Ramsey, Administratrix of the Estate of Deana M. Ramsey, Deceased, and Barbara B Hellebrand, Respondents.

No. 1160.

Court of Appeals of South Carolina.

Heard Feb. 24, 1988.

Decided May 9, 1988.

H. Spencer King, of King, Cothran & Hray, Spartanburg, for appellant.

Kenneth L. Holland and Wade S. Weatherford, III, Gaffney, for respondents.

SHAW, Judge:

This is a declaratory judgment action. State Farm Mutual Automobile Insurance Company appeals from an order of the circuit court holding that emotional trauma is bodily injury for which damages may be assessed under a standard automobile liability insurance policy. We affirm.

Respondent Candus Ramsey witnessed defendant Barbara B. Hellebrand's striking and killing of her daughter, Deana M. Ramsey, with her automobile. The policy provides liability coverage on Mrs. Hellebrand's automobile of $25,000 per person and $50,000 per occurrence. The company admitted liability and paid for the daughter's death. Mrs. Ramsey seeks to recover damages for emotional trauma as bodily injury.

This is a novel question in South Carolina.

Emotional trauma was determined to be bodily injury in Spaugh v. Atlantic Coast Line R. Co., 158 S.C. 25, 155 S.E. 145 (1930). There a plaintiff recovered damages when erroneous directions from a trainman resulted in her being delayed to her destination and caused her nervous strain and sickness. The court held "to receive bodily injury as regards recovery of damages, plaintiff need not lose limb or have wound inflicted." The modern trend recognizes that emotional tranquility is an interest worthy of protection. See Ramirez v. Armstrong, 100 N.M. 538, 673 P.2d 822 (1983); Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980). Our Supreme Court has recognized this trend and has allowed recovery for intentional infliction of emotional distress. Ford v. Hutson, 276 S.C. 157, 276 S.E.2d 776 (1981). Also, compensation for mental shock and suffering, wounded feelings, grief and sorrow has beyond question been allowed in wrongful death actions under Lord Campbell's Act. Mishoe v. Atlantic Coast Line R. Co., 186 S.C. 402, 197 S.E. 97 (1938).

Following the rationale of Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968) which held a bystander could recover for emotional trauma flowing from injuries to another under specific conditions, our Supreme Court established a new cause of action in tort for emotional distress to certain bystanders in Kinard v. Augusta Sash & Door Co., 286 S.C. 579, 336 S.E.2d 465 (1985). The elements are as follows:

(a) the negligence of the defendant must cause death or serious physical injury to another;

(b) the plaintiff bystander must be in close proximity to the accident;

(c) the plaintiff and the victim must be closely related;

(d) the plaintiff must contemporaneously perceive the accident; and

(e) the emotional distress must both manifest itself by physical symptoms capable of objective diagnosis and be established by expert testimony.

In this case, the policy provides:

SECTION 1--LIABILITY--COVERAGE A

We will:

1. pay damages which an insured becomes legally liable to pay because of:

a. bodily injury to others, and

b. damage to or destruction of property including loss of its use,

caused by accident resulting from the ownership, maintenance or use of your car; ...

Therefore, we hold that negligent infliction of emotional trauma is a bodily injury for which damages may be recovered under a standard policy of insurance. However, by this holding, we do not conclude that such a clause in a policy affords automatic coverage. The burden is on respondent to prove derivative damages under the elements of Kinard, supra.

AFFIRMED.

GARDNER, J., concurs.

CURETON, J., concurs in separate opinion.

CURETON, Judge (concurring):

The issue in this declaratory judgment action is the applicability of the multiple limits provision of an automobile insurance policy to a cause of action for negligent infliction of emotional distress when the bodily injury limit for one person has been exhausted. Barbara B. Hellebrand was insured by State Farm Mutual Automobile Insurance Company. The policy provided liability limits of Twenty Five Thousand Dollars ($25,000) for bodily injury to each person and Fifty Thousand Dollars ($50,000) for bodily injury for each accident. Bodily injury is defined in the policy as "bodily injury to a person and sickness, disease or death which results from it." Under the "Limits of Liability" provision the policy contains the following language:

Under "Each Person" is the amount of coverage for all damages due to bodily injury to one person. Under "Each Accident" is the total amount of coverage for all damages due to bodily injury to two or more persons in the same accident. (emphasis in original)

Deana M. Ramsey, the daughter of Candus Ramsey, was struck and killed by an automobile operated by Hellebrand. Representatives of Ramsey and State Farm negotiated a settlement of the survival and wrongful death actions related to the death of the child. The parties specifically reserved a determination of the claim of Candus Ramsey for negligent infliction of emotional distress. State Farm paid the sum of Twenty Five Thousand Dollars ($25,000) in settlement of the survival and wrongful death actions. State Farm contends this is the applicable policy limit. Ramsey contends an additional bodily injury limit of Twenty Five Thousand Dollars ($25,000) is applicable to provide coverage for her negligent infliction of emotional distress claim. State Farm brought a declaratory judgment action to determine this coverage issue. The trial court determined the additional limit of coverage would be applicable to the claim of negligent infliction of emotional distress. In making this determination the trial court held "bodily injury" was contemplated by the physical symptoms manifestation requirement enunciated in Kinard v. Augusta Sash and Door Co., 286 S.C. 579, 336 S.E.2d 465 (1985). The trial court held the words "bodily" and "physical" were interchangeable.

The South Carolina Supreme Court has distinguished the terms "bodily injury" and "personal injury." The court held the term "bodily injuries" was much narrower than the term "personal injuries." Toney v. South Carolina Dept. of Education, 284 S.C. 401, 327 S.E.2d 322 (1985). Damages for medical expenses and loss of consortium suffered by an individual due to injuries to his or her spouse are "personal injuries" and not "bodily injuries." Sheffield v. American Indemnity Company, 245 S.C. 389, 140 S.E.2d 787 (1965); Sossamon v. Nationwide Mutual Insurance Company, 243 S.C. 552, ...