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ATTORNEY FOR APPELLANTS Michael L. Hanley Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Richard P. Samek Larry L. Barnard Fort Wayne, Indiana ATTORNEYS FOR AMICI CURIAE INSURANCE INSTITUTE OF INDIANA, INC., NATIONAL ASSOCIATION OF MUTUAL INSURANCE COMPANIES, AND PROPERTY CASUALTY INSURERS ASSOCIATION OF AMERICA Robert B. Clemens George T. Patton, Jr. Bryan H. Babb Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 49S02-0704-CV-143 AUSTIN J. ELLIOTT, B/N/F WILLIAM K. ELLIOTT, AND AMBER ELLIOTT B/N/F WILLIAM K. ELLIOTT,

FILED
Feb 28 2008, 2:30 pm
of the supreme court, court of appeals and tax court

CLERK

Appellants (Plaintiffs below), v. ALLSTATE INSURANCE COMPANY, Appellee (Defendant below). _________________________________ Appeal from the Marion Circuit Court, No. 49C01-0207-CT-1790 The Honorable Theodore M. Sosin, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0604-CV-363 _________________________________ February 28, 2008 Sullivan, Justice.

In July 2000, Amanda Elliott was in an automobile accident caused by Andrea Carmona; Carmona was driving an uninsured auto. Amanda and Amber Elliott (Amanda's 15-year-old sister) and Austin Elliott (Amanda's three-year-old son), who were passengers in Amanda's car, each sustained bodily injuries. Amanda's injuries were exceptionally severe and nearly fatal. Amber and Austin each suffered emotional distress from witnessing Amanda's injuries.

Amanda had automobile insurance with Allstate that included uninsured motorist coverage in the amount of $25,000 for "each person" and $50,000 for "each accident." (App. at 71.) Allstate settled Amanda's personal injury claim for the "each person" limit of $25,000. When Amber and Austin also sought to recover under the uninsured motorist provisions for their emotional distress, Allstate took the position that it had satisfied its obligations under the policy when it had paid the limits for Amanda's injuries. In Allstate's view, because Amber's and Austin's claims for emotional distress were caused by Amanda's injuries, they were included in the "each person" limit of liability for Amanda's bodily injury claim.

This litigation ensued. The trial court agreed with Allstate's position but the Court of Appeals reversed. It was of the view that Amber's and Austin's claims for emotional distress were independent of Amanda's and as such entitled to their own respective limits of liability. Elliott v. Allstate Ins. Co., 859 N.E.2d 696 (Ind. Ct. App. 2007). In so holding, the Court of Appeals relied in part on its own decision in State Farm Mutual Automobile Insurance Co. v. Jakupko, 856 N.E.2d 778, 782 (Ind. Ct. App. 2006). Allstate sought, and we granted, transfer. Elliott v. Allstate Ins. Co., 869 N.E.2d 454 (Ind. 2007) (table).1 The policy language at issue here is slightly different than that in Jakupko.2 However,

We also granted transfer in Jakupko, 869 N.E.2d 454 (Ind. 2007) (table), and decide it today in a separate opinion. State Farm Mut. Ins. Co. v. Jakupko, -- N.E.2d --, No. 29S02-0704-CV-140, slip op. (Ind. Feb. 28, 2008).
2

1

Allstate agreed to "pay damages which an insured person is legally entitled to recover from the owner or operator of an uninsured auto because of . . . bodily injury sustained by an insured person." (App. at 29.) The "Limits Of Liability" provision of the policy provides: Limits of Liability. The coverage limit shown on the Policy Declarations for:

2

both cases present us with precisely the same issues to decide:

(1) whether "bodily injury" as defined in the policy at issue in this case includes the emotional distress Amber and Austin suffered; and, if so,

(2) whether the fact that the policy provides that the coverage limit for bodily injury suffered by Amanda "includ[es] damages sustained by anyone else as a result of that bodily injury" (App. at 25) precludes Amber and Austin from having their own independent limits on liability.

Our decision today in Jakupko resolves these issues. State Farm Mut. Auto. Ins. Co. v. Jakupko, --- N.E.2d ---, No. 29S02-0704-CV-140, slip op. (Ind. Feb. 28, 2008). In it we hold that "bodily injury" as defined in the policy at issue in that case includes emotional distress. Jakupko, slip op. at 6 (citing Wayne Twp. Bd. of Sch. Comm'rs v. Indiana Ins. Co., 650 N.E.2d 1205, 1210 (Ind. Ct. App. 1995), trans. denied). For the same reasons, we reach the same result here.

In Jakupko, we also find that the policy at issue in that case contravenes the requirement of the Indiana uninsured and underinsured motorist insurance statute that automobile insurance policies provide "coverage . . . for . . . persons insured under the policy who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles." Ind. Code

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