There is an interesting case out of the Michigan courts this week. A Michigan appellate court ruled that a mother, Gale Boertmann, who saw her son’s fatal motorcycle accident could claim damages under her own auto insurance for her injuries while driving. Cincinnati Insurance Co. objected, saying that the injury was not due to her operation of the vehicle since “she would have suffered the exact same injury if she were standing on the front porch of her house.”
Both the mother and son were returning from a wedding. Here are the facts from the opinion below:
On September 1, 2007, plaintiff was driving a motor vehicle that was insured by defendant. She was driving behind her son Chris, who was operating a motorcycle. Plaintiff saw a vehicle make a wide turn into Chris’s path and saw the two vehicles collide. Plaintiff proceeded to the parking lot where Chris landed after the collision and went over to him. He was severely injured and was pronounced dead approximately 30 minutes after the collision.
After the accident, plaintiff was treated by licensed psychologists Robert Cornette and Vera Sekulov and was diagnosed as suffering from “post-traumatic stress disorder ․ and major depressive disorder, single episode, severe without psychotic features.” An affidavit submitted by Drs. Cornette and Sekulov states:
Gale’s post-traumatic stress disorder is caused by her witnessing of the collision which killed her son. The traumatic incident in this case is the collision itself between Christopher’s motorcycle and the car that we are told cut him off. Gale continues to have nightmares involving car crashes in general and regularly dreams of dead bodies she does not recognize which are maimed in crashes, bodies laying in blood, with eyes and mouth open, dead people hanging with skin off, dead babies on pavement, and other gruesome sights. Recurrent images and thoughts of the accident marked diminished interest and ability to function, restricted affect and significant cognitive impairments.
The use of the insurance claim is an interesting angle in such cases where recovery under the infliction of emotional distress may not be available. In class and on this blog, we sometimes deal with the limits of recovery under the torts for intentional or negligent infliction of emotional distress. While the common law was long suspicious of emotional distress claims, it allowed such claims to be made as “parasitic torts” by riding on the back of battery or other claims. We ultimately recognized a stand alone claim but limit the use of the claim for third persons or bystanders. For most bystanders witnessing an accident, they need to combine the claim with some other injury like a battery claim. For relatives, however, you can recover if you are present at the time of the accident and are a member of the immediate family of the victim.
In this case, Boertmann claimed over $30,000 in medical and counseling bills and had to give up her job after the accident due to continued emotional and physical problems.
The court found that these policies should be read in favor of the covered party and that state law has a broad definition of injuries “arising out” of operation of a vehicle:
MCL 500.3105(1) states: “Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.” “Arising out of” means that the causal connection between the injury and the use of the motor vehicle must be “more than incidental, fortuitous, or ‘but for.’ “
What I found most interesting was the distinction with the Keller case below and the difference between injury due to the loss of loved one and injury due to witnessing such a loss:
We find that evidence from plaintiff’s psychologists distinguishes this case from Keller. This Court stated in Keller that the plaintiff’s injury was the result of her son’s death. Id. In contrast, according to plaintiff’s psychologists, plaintiff’s injuries were the result of her witnessing the fatal collision.3 The psychologists’ affidavit states that “Gale’s post-traumatic stress disorder is caused by her witnessing of the collision which killed her son. The traumatic incident in this case is the collision itself between Christopher’s motorcycle and the car that we are told cut him off.” The affidavit indicates that “[r]ecurrent images and thoughts of the accident marked diminished interest and ability to function, restricted affect and significant cognitive impairments.” Accordingly, it is evident that plaintiff’s depression, too, is inextricably tied to the witnessing of the accident and to the post-traumatic stress disorder. Defendant did not present any evidence to counter the psychologists’ affidavit.
The distinction between the grief suffered upon a loved one’s death and the distress upon viewing a traumatic event that causes death is discussed in Wolfe v. State Farm Ins Co, 224 NJ Super 348, 352; 540 A.2d 871 (1988):
When confronted with accidental death, the reaction to be expected of normal persons, ․ is shock and fright. It is the sensory perception of a shocking event which causes a separate, compensable injury․ [I]t is the plaintiff’s perception which causes the perceiver to suffer a traumatic sense of loss. Such emotional distress is not the equivalent of grief from losing a loved one, but is inflicted by the trauma of seeing a loved one suffer or die or of seeing efforts to revive [the loved one] being unsuccessful. [Internal citations and quotation marks omitted.]
There is a school of thought under the so-called socio-biological school that holds that damages should consider the loss of one’s DNA in such accidents. That was obviously not an issue that this court considers and most courts would find problematic since it would create a differential between natural and adopted children in terms of damages.
It is a decision that could have significant implications for individuals who fall outside of the exceptions for third party recovery under intentional or negligence infliction of emotional distress. It also affords family members the ability to recover from both the actor and their own insurance companies. This is an interesting case to watch.
Here is the opinion and the case is now set for review before the Michigan Supreme Court.