8.1.2 Bodily Injury

• Jurisdiction: Arizona

The standard CGL policy defines "bodily injury" as "bodily injury, sickness or disease sustained by a person, including death resulting therefrom." Until recently, the Arizona courts had not considered whether pure emotional injury constitutes bodily injury. The courts that have considered this question in other jurisdictions have found that there is no coverage for purely emotional distress damages.^[27]

In Transamerica Insurance Co. v. Doe,^[28] the court held that emotional distress is not bodily injury when "bodily injury" is defined by the policy in terms of physical injury.

Determining when bodily injury has taken place has become problematic with the advancement of scientific knowledge. Three Arizona cases are illustrative. In Burns v. Jaquays Mining Corp.^[29]and DeStories v. City of Phoenix,^[30] the court held that mere exposure to an inhalation of asbestos particles was not sufficient to support a cause of action in tort. In Burns, expert testimony was presented at trial to establish not only that the plaintiffs had been "exposed to substantial and cumulative quantities of asbestos fiber," but also "all [had] asbestos fibers in their lungs which are causing changes in the lung tissue."^[31] The court of appeals noted "sooner or later some of the residents, if they live long enough, will suffer from asbestosis and other asbestos-related diseases."^[32] Nevertheless, the court ruled that "subclinical injury resulting from exposure to asbestos is insufficient to constitute the actual loss or damage to a plaintiff's interest required to sustain a cause of action under generally applicable principles of tort law."^[33] Accordingly, the court concluded that "[t]here can be no claim for damages for fear of contracting asbestos-related diseases in the future without manifestation of bodily injury."^[34] The court in DeStories found no "compensable physical harm" to support a tort action when "plaintiffs offered evidence establishing, at most, that they had been exposed to asbestos dust and therefore had an increased probability or significantly increased risk of developing a fatal lung disease."^[35]

In Associated Aviation Underwriters v. Wood,^[36] the court was asked to determine at what point bodily injury occurs for purposes of insurance coverage attachment. In Associated Aviation Underwriters, the court found "that TCE contaminated water was supplied to the homes, schools and workplaces of intervenors during the entire period of AAU's coverage[,]" and that...