NATIONWIDE PROPERTY AND CASUALTY INS. CO. V. CAPLE
INSURANCE: Emotional distress damages does not include negligent infliction of emotion distress to claimant for witnessing child's death in MVA
NOT TO BE PUBLISHED: 132
DATE RENDERED: 7/11/2008
MOORE, JUDGE: Nationwide Property and Casualty Insurance Company appeals from the Jefferson Circuit Court’s declaratory judgment in this action involving a claim under an automobile insurance policy issued by Nationwide to Dana Caple.
After a careful review of the record, we reverse and remand for the circuit court to dismiss Caple’s negligent infliction of emotional distress claim.
In this accident, the mother and her two children were physically injured with one of the children dying from his injuries. All the claims settled for the liability limits, and the per person limits under the UIM policy were tendered on the wrongful death claim of the decedent son. The mother, however, requested an additional $200,000 in per-person stacked UIM coverage for herself, alleging that she suffered the negligent infliction of emotional distress after witnessing Grant’s injuries and death which was denied by Nationwide.
Caple moved for a declaratory judgment stating that her negligent infliction of emotional distress claim was payable under the UIM policy’s per accident coverage, and that the claim was not derivative of Grant’s claims for “bodily injury and wrongful death.”
Nationwide opposed the motion, contending that Caple’s negligent infliction of emotional distress claim based on witnessing Grant’s injuries and death was not payable under the UIM policy, and that the claim was derivative of Grant’s claims.
The trial court agreed with Caple finding her interpretation of the insurance contract was “more in line with the Kentucky case law and public policy,” considering that Kentucky follows the “‘impact rule,’ which permits a plaintiff recovery for emotional distress only if the plaintiff experienced a physical impact by the defendant and further concluded that Caple’s was accompanied by physical impact to her and was not a derivative claim thus the additional per person coverage limits of the UIM policy were available.
The COA disagreed with the trial judge and noted the Kentucky Supreme Court recentl stated “It is well established in this jurisdiction that an action will not lie for fright, shock or mental anguish which is unaccompanied by physical contact or injury.” Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920, 928 (Ky. 2007)
It is necessary that the damages for mental distress sought to be recovered be related to, and the direct and natural result of, the physical contact or injury sustained. It is not enough that emotional distress be accompanied by contact – it must be caused by the contact.
Since there is no proof in the present case that Caple’s mental distress was a result of the injuries she personally sustained in the accident, the damages will not be allowed. Indeed, Caple did not even claim that her mental distress was due to her own injuries.
Because we find that Caple’s NIED claim lacks merit under Kentucky law, we need not address Nationwide’s alternative assertion that Caple’s NIED claim is not compensable under the insurance policy. Furthermore, because we do not recognize Caple’s right to claim damages for emotional distress as a result of witnessing her son’s death, we need not address Nationwide’s other alternative assertion that Caple’s claims are derivative of the estate’s wrongful death claim and payable only from the “per-person” limits to the estate, which have been exhausted.
Accordingly, the judgment of the Jefferson Circuit Court is reversed and remanded with instructions to dismiss Caple’s NIED claim.