Preview:

ATTORNEY FOR APPELLANT Mark D. Gerth Indianapolis, Indiana

ATTORNEYS FOR APPELLEE David W. Craig Scott A. Faultless Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 89S05-0802-CV-102 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

FILED
Feb 28 2008, 2:31 pm
of the supreme court, court of appeals and tax court

CLERK

Appellant (Defendant below), v. D.L.B., A MINOR CHILD BY HIS PARENT AND NATURAL GUARDIAN, DEANA H. BRAKE, Appellee (Plaintiff below). _________________________________ Appeal from the Wayne Superior Court, No. 89D01-0109-CT-025 The Honorable P. Thomas Snow, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 89A05-0512-CV-747 _________________________________ February 28, 2008 Sullivan, Justice.

In July 2000, while riding bicycles with his four-year-old cousin, D.L.B., six-year-old Seth Baker was struck and killed by a vehicle driven by Herbert Wallace. D.L.B. was not himself physically injured but suffered from Post-Traumatic Stress Disorder as a result of witnessing his cousin's fatal injuries.

Wallace was insured by State Farm Mutual Automobile Insurance Company. The State

Farm policy included bodily injury coverage in the amount of $100,000 for "each person" and $300,000 for "each accident." (Appellant's App. at 26.) State Farm paid $100,000 to Seth's parents to settle claims against Wallace arising out of their son's death. However, State Farm denied a claim brought by D.L.B.'s mother, Deana Brake, on his behalf.

This litigation ensued. The trial court and Court of Appeals both ruled in favor of D.L.B. State Farm Mut. Auto. Ins. Co. v. D.L.B. ex rel Brake, 862 N.E.2d 678 (Ind. Ct. App. 2007). In so holding, the Court of Appeals relied in part on its own decision in State Farm Mut. Auto. Ins. Co. v. Jakupko, 856 N.E.2d 778, 782 (Ind. Ct. App. 2006). Judge Darden dissented. D.L.B., 862 N.E.2d at 684.

We granted transfer in Jakupko and decide that case today by separate opinion. State Farm Mut. Auto. Ins. Co. v. Jakupko, --- N.E.2d ---, No. 29S02-0704-CV-140, slip op. (Ind. Feb. 28, 2008). We grant transfer here today, because like Jakupko, this case requires us to decide whether "bodily injury" as defined in the policy at issue in this case1 includes the emotional distress D.L.B. suffered.

In Jakupko, 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). However, we note in Jakupko that the term "bodily injury" does not include emotional damage unless it arises from
1

The insurance policy provisions at issue in this case are the definition of "bodily injury" and the condition of the limits of liability. They read as follows: Bodily injury

Download State Farm Mutual Automobile Ins. v. D.L.B., Deana H. Brake.pdf

Indiana Law