State Farm Mutual Automobile Insurance v. Ramsey

368 S.E.2d 477, 295 S.C. 349, 1988 S.C. App. LEXIS 70

• Court: Court of Appeals of South Carolina
• Decided: May 9, 1988
• Docket: 1160
• Status: Published

Opinions

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 plantiff 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.