Payment of distress claims clarified.

Byline: Tony Anderson

The state Supreme Court has determined that a claim for emotional distress over the death of a loved one must be paid out of the bodily injury limits for the person who died, in line with the "limits of liability" wording on an insurance policy.

The Supreme Court's July 1 ruling affirms a 1997 court of appeals ruling in another case, which established payment to bystanders for emotional distress from an insurance policy's "each person" bodily injury limits for the person who died. Last week's high court ruling affirmed and applied that to situations where the person alleging emotional distress was also injured in the accident.

The case is Joseph Mullen and the Estate of Renee K. Petit v. Douglas J. Walczak, et. al., Case no. 02-0129. Justice William A. Bablitch authored the court's unanimous decision.

Background

According to the decision, in 1996, Walczak, who was uninsured, caused an automobile accident, which took Petit's life and seriously injured Mullen, her husband. Mullen witnessed his wife's death at the scene of the accident.

In 1999, Mullen commenced an action for the wrongful death of Petit and his own personal injuries. Those injuries included physical injuries as well as emotional distress from watching his wife die.

Mullen's American Family policy's "limits of liability" section indicated that the "limit for 'each person' is the maximum for all damages sustained by all persons as the result of bodily injury to one person in any one accident." That policy established uninsured motorist limits of $100,000 per person and $300,000 per accident.

American Family settled the wrongful death claim for $100,000 and reached an agreement that the claim for Mullen's physical injuries was $50,000. American Family and Mullen stipulated that his ongoing emotional distress arose solely from witnessing Petit's death. As a result, American Family denied Mullen's claim for emotion distress, noting that it had paid the per person limit for Petit's death.

Mullen contended that the emotional distress was part of his bodily injuries, therefore, $50,000 remained under the UM policy's limits. Lincoln County Circuit Court Judge J. Michael Nolan agreed with American Family, granting a motion for summary judgment. Nolan observed that the decision in Estate of Gocha v. Shimon, 215 Wis. 2d 586, 573 N.W.2d 218 (Ct. App. 1997), limited Mullen's claim for emotional distress to his wife's bodily injury limits.

Mullen appealed, maintaining...