Arnott v. Liberty Mut. Fire Ins. Co.

• Court: Superior Court of Maine
• Decided: July 13, 2010
• Docket: CUMcv-09-499
• Status: Unpublished

Opinion

ST ATE OF 1,,1ArNE SUPERIOR COURT CUMBERLAND,5s CIVIL ACTION / DOCKET NO. CV -09-49 J I

ALAN A. ARNOTT, 03f\1383}:1 r; ., , , ),/,' ,-/'~:: c'-,

Plaintiff 0'0' £1 lnr ~ (,. ~QRDER ON DEFENDANT'S v. a~\!!O S,'l\lCl\:> 'S5 'P3U;~!~lU'stJMMARY JUDGMENT 3NI'iV'l :10 MOTION LIBERTY MUTUAL FIRE INSURANCE CO., Defendant

BEFORE THE COURT

Defendant Liberty Mutual Fire Insurance Company (hereinafter "Liberty

Mutual") has filed a motion to exclude Plaintiff Alan Arnott's (hereinafter

"Arnott") bystander emotional distress claim. The court addresses Liberty

Mutual's motion as a motion for summary judgment because Liberty Mutual

asserts that based on the stipulated facts it is entitled to judgment as a matter of

law.

BACKGROUND

Arnott sued his own insurance company, Liberty Mutual, asserting a

claim for underinsured motorist coverage in connection with an accident that

occurred on September 29, 2007, on Route 35 in Standish. The principal issue in

contention is whether, in addition to recovering for his own injuries, Arnott is

entitled to recover for bystander emotion(1J distress on account of witnessing the

injuries of his live-in girlfriend and domestic partner Kathie Watts (hereinafter

"Watts").

The stipulated facts regarding the emotional distress claim are as follows:

At the time of the accident, Arnott was driving his motorcycle, and Watts was

riding on the back of his motorcycle as a passenger. The accident occurred when a car driven by Karey Moreau (hereinafter "Moreau") coming in the opposite

direction, turned left across Arnott's path. When Arnott s\verved to avoid

Moreau's car, both Arnott and Watts were thrown from Arnott's motorcycle and

injured. Arnott has settled with Moreau's insurance carrier for $45,000, crediting

Liberty Mutual with the $50,000 limit of Moreau's $50,000 liability policy. Arnott

now seeks recovery from Liberty Mu tual for injuries he suffered in the motor

vehicle accident, and for emotional distress from witnessing the injuries Watts

suffered.

Since Watts was sitting behind Arnott on the motorcycle, Arnott did not

see Watts being thrown from the motorcycle, and he does not remember being

thrown from the motorcycle himself. Arnott recalls the bike swerving and the

next thing he remembers is being on the ground. As he sat up, he saw Watts

lying on the ground moaning and rocking. He walked over to her and he

observed that she had abrasions on her face and her eyes were puffy. Her eyes

were closed and she was rolling onto one side and then the other. Arnott

concluded that Watts was seriously injured because she was not responsive to

him. At the scene of the accident, Arnott experienced anxiety and fear that Watts

might die, or that she would have to go into a nursing home. Arnott has never

sought, nor received any treatment or counseling for emotional distress related

to this accident.

Arnott and Watts are not blood relatives, are not married, have never been

married to each other, and have no plans to get married. Although not married,

they plan to stay together. 1 Arnott and Watts have been living together for eight

IArnott was in a previous marriage that did not work out well and stated that he will not get married again because he has no desire to repeat the experience.

2 years and they are registered as domestic partners with the City of Portland.

They each own separate homes, \vhich they acquired through earlier marriages.

They both work and maintain separate bank accounts. Hmvever, they also share

joint bank accounts from which they pay their respective share of all household

expenses. Arnott carries Watts on his health insurance policy and dental policy.

Additionally, Watts is a beneficiary of Arnott's life insurance policy. They file

separate income tax returns.

DISCUSSION

1. Standard of Review

Summary judgment should be granted if there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law. M.R.

Civ. P. 56(c). In considering a motion for summary judgment, the court should

consider the facts in the light most favorable to the non-moving party, and the

court is required to consider only the portions of the record referred to and the

material facts set forth in the parties' Rule 56(h) statements. E.g., J0l711S011 V.

McNeil, 2002 ME 99, <[ 8, 800 A.2d 702, 704. Each fact contained in the supporting

statement of material facts shall be supported by a record citation. M.R. Civ. P.

56(h)(1). A contested fact is "material" if it could potentially affect the outcome

of the suit under the governing law. [lIke! v. Livingston, 2005 ME 42,

745, 747. A fact is "genuine" if there is sufficient evidence supporting the

claimed fact to require a fact-finder to choose between competing versions of

facts at trial. [d. For the purposes of summary judgment, factual disputes and

ambiguities must be resolved against the movant. Nevertheless, when the facts

offered by a party in opposition to summary judgment would not, if offered at

trial, be sufficient to withstand a motion for judgment as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99, 9I 8, 694

A.2d 924, 926.

2. Arnott's Bystander Emotional Distress Claim

Whether a plaintiff is owed a duty of care is a matter of lav,' that is

dependent on recognizing and weighing policy implications. Cameron v. Pepi71,

610 A.2d 279, 282 (Me. 1992). "The determination of the extent of the duty owed

in cl aims for negligent infliction of emotional distress involves striking a fair

balance between the need to compensate foreseeable psychic injuries and the risk

of imposing limitless liability.// Miclwud v. Great Northern Nekoosa Corv, 1998 ME

213, 9i 15, 715 A.2d 955, 958-59 citing Cameron, 610 A.2d at 283.

In Culbert v. Sampso71's Supermarkets, Inc., 444 A.2d 433 (J\1e. 1982), the Law

Court adopted the foreseeability test for bystander emotional distress claims

enunciated in Dilloll v. Legg, 69 Cal. Rptr. 72, 441 F.2d 812 (1968), holding: //[A]

bystander may recover damages for serious mental distress foreseeably resulting

from witnessing another person harmed by the tortfeasor's negligent act.//

Culbert, 444 A.2d at 436. Under the three-factor Dillon test, a bystander's psychic

injury may be deemed foreseeable when the plaintiff bystander (1) was present

at the scene of the accident, (2) suffered serious mental distress as result of

observing the accident and ensuing danger to the victim, and (3) was closely

related to the victim. Culbert, 444 A.2d at 438; see also Cameron, 610 A.2d at 284-85.

Liberty Mutual argues that Arnott cannot recover for bystander emotional

distress for h-vo reasons: First, Liberty Mutual claims Arnott is precluded from

recovery because he did not actually see Watts fall off the motorcycle. Second,

Libery J\1utual argues that Arnott is not able to recover as a bystander for Watts'

4 injuries because a family membership is required for a bystander emotional

distress claim.

a. A Visual Observation of the Actual Accident is Not Necessary

In support of this first argument Liberty Mutual claims that this case is

like Cameron and cites Michaud for the proposition that the plaintiff bystander

may recover only if he "suffered mental distress as a result of observing the

accident and ensuing danger to the victim." Micllalld,

(emphasis added). Liberty Mutual's interpretation of Michaud is too narrow.

Moreover, Liberty Mutual's comparison of this case to the holding of CI1J11eroll is

inapposite. In CaJlleron the plaintiffs were not at the scene of the accident and did

not see their injured son until they visited him at the hospital. Cameron, 610 A.2d

at 284.

Bystander recovery focuses on the emotional vulnerability that arises

when tIle bystander witnesses a person to whom he is closely related receive an

injury. CaJlleron, 610 A.2d at 284. A plaintiff bystander does not have to directly

witness the injury in order to recover for his emotional distress. Several courts

focus on the time when the plaintiff bystander became aware of the injury as the

limiting factor. See Cailleroll, 610 A.2d at 284 citing TOlllmy's Elbow Room, Illc. v.

Kl1vorkil7ll, 727 A.2d 1038 (Alaska 1986) (replacing requirement of

contemporaneous observation of the accident with requirement of seeing victim

at the scene); Corso v. Merrill, 406 A.2d 300 (N.H. 1979) (recovery allowed to

parent who did not see accident but saw victim at the accident scene). Arnott

was present at the scene of the accident and he observed Watts' pain and

suffering immediately after she sustained her injuries. The fact that Arnott did

not actually see \VaU fall off of the motorcycle is not a sufficient reason to grant

5 summary judgment on Arnott's claim for bystander emotional distress in this

case.

b. Only a Close Relationship to the Victim of the Negligence is Required

Liberty Mutual cites to Micluntd to support its contention that a plaintiff

asserting a bystander emotional distress claim must have a family relationship

with the victim of the negligent conduct. Michaud was a scuba diving contractor.

While performing a rescue dive to help two co-workers who were trapped

underwater, Michaud witnessed his co-worker's leg being completely severed.

Michaud brought a claim to recover for bystander emotional distress. Citing

CamerOll, the Law Court affirmed the lower court's summary judgment stating,

"[T]he absence of a family relationship with the trapped divers precludes

[Michaud's] claim as [a bystander], a conclusion he does not dispute." Michaud,

err 17, 715 A.2d at 959 citing Cameroll, 610 A.2d at 284-85.

To conclude that the Law Court in Michaud intended to limit the protected

class in bystander emotional distress claims to bystanders witnessing harm to

family members is problematic for several reasons. First, the plaintiff in Michaud

did not contest whether he was closely related to the trapped divers. Michaud, err

17, 715 A.2d at 959. Rather, the plaintiff in Michaud challenged the application of

the rescuer doctrine to emotional distress claims. Michaud, errerr 18-20, 715 A.2d

959-60. Second, Cameroll, the case the Law Court cited to in Michaud, only states

that the bystander must be "closely related to the victim," and does not

specifically limit the class of victims to family members. Cameron, 610 A.2d at

284-85. Third, while most of the bystander emotional distress claims decided by

the Law Court have involved family members, see Camero1l, 610 A.2d 279

6 (parents brought bystander claim following son's car accident); Nelson v.

Flmza::;ml, 677 A.2d 545 (Me. 1996) (son and husband asserted a bystander

emotional distress claim for medical misdiagnosis of mother / wife); Culbert v.

Sampson, 444 A.2d 433 (Me. 1982) (mother asserted a bystander claim after

witnessing her baby choke), the Law Court has not defined who qualifies as a

"family member," or who is "closely related."2

Most jurisdictions limit the bystander-victim relationship in bystander

emotional distress claims to family members.~ In Elden v. Sizeidoll, the Supreme

Court of California adopted a "bright-line" rule defining the bystander-victim

2 In Magruder v. Sawyer, the Federal District Court for the District of Maine confirmed that the protected class for bystander emotional distress claims in Maine is undefined. Magruder v. Sawyer, 1999 U.S. Dist. LEXIS 23059 (D. Me. Dec. 6, 1999). In Magruder, the plaintiff brought a bystander emotional distress claim after witnessing the defendant and others assault his fiancee. Id. at *2. In analyzing the claim on a motion to dismiss, United States Magistrate Judge Eugene Beaulieu wrote, "[t]he Law Court has never had the occasion to address whether persons engaged to be married are "closely related" within the meaning of the rule, but it bas held that married persons qualify." Id. at *3. After noting that the Law Court in Culbert cautioned against a formulaic application of the Dillon factors, Magistrate Beaulieu recommended that the motion to dismiss the plaintiff s claim for lack of a "family relationship" should be denied.

3 See Ozdemir v. Somerset Med Or., 2007 U.S. Dist. LEXIS 48586, * 7 n. 3 (N.D. N.Y. 2007) (stating that New York "permits only spouses and immediate family members to pursue a bystander" emotional distress claim); Bowen v. Lumbermen\' Mul. Casually Co., 183 Wis. 2d 627, 633 (Wis. 1994) (requiring the victim and the plaintiff to be related as spouses, parent-child, grandparent-grandchild, or siblings); Groll.\· v. Zahner, 989 P.2d 415 (Nev. 1999) (holding that under Nevada law a fiancee lacks standing to bring a bystander emotional distress claim); Lindsey v. Visitec, Inc., 804 F. Supp. 1340 (D. Wash. 1992) (holding that under Washington law, a fiancee who had been living with deceased for one year was not allowed to bring a claim for bystander emotional distress); Bercev;cz v. Liberty MUluollns. Co., 865 A.2d 1267, 1272 (Conn. Super. Ct. 2004) (holding that in Connecticut a fiancee could not satisfy the closely related requirement); Sollors v. Cily (~r Albuquerque, 794 F. Supp. 360,363 (D. N.M. 1992) (holding that New Mexico law would not allow the girlfriend of the deceased to assert a bystander emotional distress claim following the reasoning enunciated in Elden v. Sheldon); Milberger v. KBHL. LLC, 486 F. Supp. 2d 1156, 1167 (D. HI, 2007) (holding that Hawaii caselaw does not support permitting an unmarried partner to bring a claim for bystander emotional distress).

7 relationship holding that unmarried co-habitants may not recover damages

based on a bystander emotional distress claim. 758 P.2d 582, 588 (Cal. 1988). In

TllillS v. La Cl1l1sa, the California Supreme Court expanded the rule from Elde71

and limited bystander recovery to persons closely related by blood or marriage,

reasoning that those were the people most likely to endure severe emotional

distress as a result of watching a loved one suffer. 771 Pold 814, 828 (Cal. 1989).

In so holding, the California Supreme Court reasoned that "to allow recovery for

emotional distress to those outside of the victim's immediate family would result

in extending the scope of the negligent actors liability for emotional damages

beyond what was reasonably foreseeable. Elde71, 758 P.2d at 588.

However, a few jurisdictions take a broad view regarding the relationship

between the victim of the negligence conduct and the plaintiff bystander. See

OIl71plIY v. Cresol' 642 A.2d 372, 380 (N,J. Sup. Ct. 1994) (permitting a fiancee to

assert bystander emotional distress claim when she had been engaged to and

cohabitated with deceased for two and a half years); Graves v. Estabrook, 818 A.2d

1255 (N.H. 2003) (allowing recovery for a woman who witnessed her fiancee

killed in a motorcycle accident after living together for seven years); Pieters D. B­

Rigllt TmckiJlS:, Tnc., 669 F.Supp. 1463, 1467 (N.D. Ind. 1987) (permitting plaintiff

to make an emotional distress claim resulting from the injuries and death of her

fiancee); Leo71g v. Takaskai, 520 P.2d 758,766 (HI, 1974) (allowing a child to bring

a bystander claim after he witnessed his stepfather's mother get hi t by a car

because the court found the emotional and functional equivalent to a nuclear

famil y relationship).

8 In DUllphy, the New Jersey Supreme Court expanded the term "intimate

familial relationship"~ to allow a plaintiff to assert a bystander emotional distress

claim stemming from the accidental death of her fiancee with whom she

cohabitated. DUllphy, 642 A.2d at 380. In DUl1phy the plaintiff and the deceased

were engaged, they were co-habitants, they purchased life insurance policies

with each other as beneficiaries, maintained a joint checking account from which

they paid their bills, and jointly purchased an automobile. Dunphy, 642 A.2d at

373. Commenting on the foreseeability of an unmarried, cohabitating bystander

plaintiff, the Duuphy court explained, "Given the Widespread reality and

acceptance of unmarried cohabitation, a reasonable person wound not find the

plaintiff's emotional trauma to be remote and unexpected." Dunphy, 642 A.2d at

377 (internal quotation omitted). The Dunphy court rejected the bright line rule

stated in Elden and Thillg regarding the bystander-victim relationship, holding

that a jury can be tasked with evaluating the bystander-victim relationship.

DUllpllY, 642 A.2d at 378. The court reasoned that foreclosing an unmarried,

cohabitating "plaintiff from making a claim based upon emotional harm because

her relationship with the injured person does not carry a particular label is to

work a putential injustice." fd.

Sound policy reasons support allowing a plaintiff like Arnott to recover

based on a bystander emotional distress claim. The imposition of a duty in an

emotional distress claim is the conclusion of a complex analysis that examines

the relationship of the parties, the severity of the harm, and public policy

considerations. See Call1eroll, 610 A.2d at 282 quoting Trllsiani v. Cllmherland ["

~ In New Jersey there must be a marital or intimate familial relationship between the plaintiff and the victim of the negligence. Portee v. JaffCe, 417 A.2d 52],528 (N.l Sup. et. 1980).

9 York Distributors, IIlC., 538 A.2d 258, 261 (Me. 1988); see also Dunphy, 642 A.2d at

376-77. The rule limiting bystander emotional distress claimants to family

members is premised on the foreseeability of emotional harm experienced by

certain plaintiffs who are closely related to the victims of negligent acts. The

relationship bet'Vveen Arnott and Watts is similar to the relationship between the

bystander and victim in Dunphy, with the principal difference being that Arnott

and Watts are registered as domestic parh1ers with the City of Portland and are

not engaged. Arnott and Watts have cohabitated for eight years, they share joint

bank accounts and household expenses, Watts is a beneficiary of Arnott's life

insurance policy, and Arnott carries Watts on his health insurance and dental

insurance policies. A reasonable factfinder could determine that Arnott's

emotional distress was factually foreseeable. Cameron, 610 A.2d at 282-83.

Without these facts, a less well-established relationship may not be sufficient for

a plaintiff to make a claim for bystander emotional distress.

Therefore, the entry is:

Liberty Mutual's motion to for summary judgment on Arnott's bystander emotional distress claim is DENIED.

Dated at Portland, Maine this I.3 M day of ~~ ,2010. /! U

R~ Justice, Superior Court

10 --_._--l-=====:::::::::=;:::=;======:::=;::::::========~::'::::~~=------:------_-':"'_-- --1 Defendant's Allomey(s)

JODI L NOFSINGER ESQ

E- m >"'~?j" , , h . ' e.