Pleading panic: pure emotional damages as "sickness or disease" for bodily injury claims.

• Author: Blumberg, Joseph N.
• Position: Case note

Derousse v. State Farm Mut. Auto. Ins. Co., 298 S.W.3d 891 (Mo. 2009) (en banc).

1. INTRODUCTION

   American courts have moved in fits and starts regarding emotional damages in negligence cases, and Missouri is no exception. The hang-ups are best expressed as struggles within the element of proximate cause, i.e. the scope of liability. (1) While the Supreme Court of Missouri slowly developed its doctrine for emotional damages in the last century, it at least crafted clear proximate cause rules that resulted in a well-defined scope of liability. (2) However, in two recent decisions regarding emotional damages, the court abandoned this slow approach and created a confusing scope of liability. (3)

   On the surface, Derousse v. State Farm Mutual Automobile Insurance. Co. may be a relatively minor matter of statutory interpretation: Does Missouri insurance law require coverage for pure emotional distress caused by uninsured motorists? In answering the question, however, the court's generous rules of interpretation signal its recent willingness to expand recovery for emotional distress claims. Traditionally, Missouri took a conservative approach to allowing emotional damages in tort claims. Derousse is a stark example that the old regime is a relic.

   As a practical matter, the logic within the decision creates policy without guidance by failing to treat the case as anything more than a matter of statutory interpretation. The decision does not discuss a prior split between the Eastern and Western districts of the Missouri Court of Appeals and avoids the issue of whether emotional damages qualify as "bodily injury" for other types of insurance. Had the decision addressed either of those fronts, Derousse would be much more constructive to the insurance industry and future litigants.

   Further, the court fails to reconcile Derousse within Missouri's broader approach to permitting recovery for pure emotional damages. As such, it remains unclear how far emotional damages may spread in negligence cases. Hypothetical scenarios show that automobile insurance may now have to extend coverage for emotional damages to people traditionally considered "bystanders" and perhaps even to "victims" of near-miss accidents.

   In summary, Missouri in recent cases has blurred the scope of liability for claims of emotional damages, and automobile insurance may have to fund a very wide safety net. The Supreme Court of Missouri makes clear that it is trending toward allowing broader recovery for pure emotional damages. The court's work, however, should not end there: Clarity also demands stronger reasoning and sensible limits on recovery.

2. FACTS AND HOLDING

   While traveling northbound on Highway 61 in Jefferson County, Missouri, Debra Derousse ("Derousse") encountered a vehicle proceeding southbound in the northbound shoulder. (4) The oncoming vehicle then swerved across both lanes of the two-lane road, struck a bluff, flipped into the air, and ejected a passenger from its back hatch. (5) The ejected person landed on the hood of Derousse's vehicle, then the body rolled off as Derousse applied her brakes. (6) Derousse's vehicle then continued over the body. (7) When she exited her vehicle, Derousse learned that she knew the person who landed on her car. (8) Derousse was wearing her seatbelt, and her airbag did not deploy. (9) After exiting her vehicle, Derousse did not notice any cuts, bruises, or other physical symptoms, and she indicated to emergency responders that she was not physically injured. (10)

   Upon arriving home, Derousse vomited. (11) Later, she called her primary care doctor, who prescribed Valium and Lexapro, (12) which can treat anxiety, sleeplessness, and depression. (13) Derousse obtained refills of the two drugs without an examination. (14) Though not physically injured, Derousse suffered nightmares, migraines, nausea, diarrhea, anxiety, headaches, vomiting, and backaches. (15) Derousse eventually sought psychological treatment from three therapists. (16)

   Derousse sought coverage for her emotional distress damages by making an uninsured motorist claim under her insurance policy with State Farm Mutual Auto Insurance Co. (17) Derousse's uninsured motorist policy provided coverage for "damages for bodily injury." (18) The policy defined "bodily injury" as "bodily injury to a person and sickness, disease or death which results from it." (19) Derousse sued when State Farm denied her claim by interpreting its policy as not providing uninsured motorist coverage for emotional injury. (20) The trial court granted summary judgment for State Farm, determining that Derousse had conceded she suffered no physical injury and that her uninsured motorist coverage for "bodily injury" did not include "injuries solely of an emotional nature." (21)

   Derousse appealed to the Missouri Court of Appeals for the Eastern District, raising three points of error. (22) First, Derousse contended that genuine issues of material fact remained as to whether her injuries were covered under the State Farm insurance policy. (23) Second, Derousse contended the insurance policy was ambiguous and should be construed against the drafter. (24) Third, Derousse claimed the trial court's interpretation of the insurance policy did not comply with the Missouri Financial Responsibility Law. (25)

   In disposing of Derousse's arguments, the Eastern District rejected the notion that her emotional damages were compensable. (26) The court recognized a "growing trend" in other courts to include mental or emotional injury accompanied by physical manifestations within the definition of bodily injury. (27) Regardless, the court said, "this trend does not exist in Missouri." (28) The Eastern District held that the definition of "bodily injury" here was unambiguous and "clearly refers to physical conditions of the body and excludes mental suffering or emotional distress." (29) The court distinguished Lanigan v. Snowden, (30) which permitted insurance reimbursement for emotional damages, by noting a difference in that policy's language. (31) The Eastern District said the controlling view in Missouri was expressed in Citizens Insurance Co. of America v. Leiendecker (32) The court held that under Leiendecker, the term "bodily injury"--standing alone or defined in an insurance policy as "bodily injury, sickness or disease"--is unambiguous and refers "only to physical injuries to the body and excludes mental suffering or emotional distress." (33) As to Derousse's third point, the court found "no conflict with or violation of" the Missouri Financial Responsibility Law. (34) The court held that because the statute's language with respect to "bodily injury" was virtually identical to the definition of "bodily injury" in Derousse's policy, then "[t]he language is unambiguous and clearly requires an element of bodily injury for coverage." (35) The Eastern District therefore found against Derousse on all three points and affirmed the trial court's grant of summary judgment for State Farm. (36)

   The Supreme Court of Missouri accepted transfer to hear the case. (37) Derousse again argued that summary judgment was in error because "(1) she sustained injuries covered by her policy; (2) her policy is ambiguous as to its coverage for emotional distress; and (3) her policy violates Missouri law." (38) The court held that because the insurance policy at issue used language that was narrower than required by the Missouri Financial Responsibility Law, (39) the statute's mandatory minimum language was controlling. (40) The court then found the statute to be ambiguous, because it was unclear whether "bodily" modified only the word "injury" or whether it also modified the phrase "sickness or disease." (41) The court interpreted the statute as providing a series of distinct "categories of harm requiring uninsured motorist coverage: (1) bodily injury; (2) sickness; or (3) disease." (42) The court held that under the minimum policy requirements provided by the Missouri Financial Responsibility Law, a claim for "sickness" or "disease" could be distinct from "bodily injury," thus Derousse's "purely emotional damages" were compensable under the categories of "sickness" or "disease." (43) Accordingly, the court concluded that State Farm was not entitled to summary judgment, and it reversed and remanded the trial court's decision. (44)

3. LEGAL BACKGROUND

   1. Emotional Damages During Missouri's Conservative Era

      For more than 100 years, Missouri followed the "impact rule," which stated that an individual could not recover damages for pure emotional injury or, conversely, that an individual could only recover for emotional damages that resulted from a corresponding touching. (45) Until the late-1960s, Missouri adhered to "an era of conservatism" in this area of tort law. (46) While the state legislature took on several social issues throughout the 1950s, the Supreme Court of Missouri "did not stray from the traditional, common-law path" on questions such as whether an injured person could recover for emotional distress. (47)

      These conservative decisions were based on the difficulty of establishing proof and the concern that recovery would encourage plaintiffs to bring imaginary claims. (48) This mirrored the national trend of "long-standing judicial skepticism of such claims." (49) By 1965, however, New York (50) and New Jersey (51) had bucked the long-standing trend and allowed recovery for emotional damages without an "impact." That same year, the Restatement (Second) of Torts agreed that the "impact rule" no longer applied, (52) instead suggesting recovery only where emotional fright manifested into "bodily harm." (53) Since that Restatement, many American courts "have liberalized the rules for recovery for stand-alone emotional harm." (54) However, Missouri stood by its conservative recovery scheme for emotional damages, adhering to the principle that it was better for the individual victim to bear the loss than...