IN THE COURT OF APPEALS
STATE OF GEORGIA
BRIDGET D. LEE and JEROME D. LEE,
Plaintiff-Appellants,
v.
JOHN DOE and STATE FARM MUTUAL AUTOMOBILE INS. CO.,
Defendants-Appellees.
Case No. A99A0601
BRIEF OF THE AMICUS CURIAE COMMITTEE
GEORGIA TRIAL LAWYERS ASSOCIATION
The Georgia Trial Lawyers Association is a
voluntary organization composed of some 2,700 Georgia trial lawyers.
GTLA often appears as amicus curiae before the appellate courts of
Georgia and before the federal courts, concerning issues of significance
in compensating victims of injury.
GTLA urges reversal of summary judgment, granted
in favor of Defendant-Appellee State Farm and against Plaintiff-Appellant
Bridget D. Lee, on her claim for mental distress arising out injuries
to both her and her child in the same accident. Instead, summary judgment
should be granted to Ms. Lee. GTLA joins in this appeal because of
the importance of both reasons recited by the trial court, and to
present additional relevant argument and authority.
I. APPELLANT SUFFERED INJURIES AND MAY RECOVER FOR HER EMOTIONAL
DISTRESS UNDER GEORGIA'S "IMPACT RULE."
Appellant Bridget D. Lee suffered physical
injuries in the very same accident and from the same force which
injured her child. Ms. Lee also suffered emotional injury from witnessing
her child's injury. As Appellant's brief ably demonstrates, Georgia
permits award of emotional damages to victims who suffer physical
injury. Until dicta found in two appellate decisions in the early
1990's, an unbroken string of decisions supported this unvarying
principle.
The issue in this case is whether this unblemished
rule was changed in any way by OB-GYN Associates of Albany v. Littleton,
261 Ga. 664, 410 S.E.2d 121 (1991). Littleton could not possibly have
changed this historic Georgia rule, because the facts of that case
did not support modification of the existing Georgia law. In that
case, "[t]he trial court found no evidence that [the mother]
had suffered an 'actionable physical injury.'" 410 S.E.2d at
121-22. Because Ms. Littleton had suffered no physical injury, she
did not satisfy the traditional requirement for recovery for mental
distress. Any possible suggestion in Littleton that victims of physical
injury no longer may recover for emotional injury is at best dictum,
and must be ignored.
The trial court in this case nevertheless
relied upon the following dicta from Littleton to support its grant
of summary judgment to State Farm:
We emphasize that any potential award of damages to Ms. Littleton
in the malpractice claim for her injuries is limited to compensation
for any physical injury she suffered as a result of the alleged
negligence, and any mental suffering or emotional distress she incurred
as a consequence of her physical injuries. Any mental suffering
as a result of injuries to her child is not compensable in this
claim.
410 S.E.2d at 122, quoting Littleton v. OB-GYN Associates
of Albany, 199 Ga. App. 44, 46 n.1, 403 S.E.2d 837 (1991).
On their face, these dicta merely limit "this
claim" <thorn> the claim in Littleton, where the mother
suffered no physical injury. Pointedly, Littleton not exclude recovery
for injury in the case at bar, where Ms. Lee suffered her own impact
from the same force which caused her child's injuries. Indeed, in
a prior appearance of Littleton, the Supreme Court had held: "The
presence of such injury [to the mother] could support a claim for
emotional distress [from injury to the child] under Georgia law."
OB-GYN Associates of Albany v. Littleton, 259 Ga. 146, 386 S.E.2d
146, 150 (1989), citing with approval Littleton v. OB-GYN Associates
of Albany, 192 Ga. App. 634, 385 S.E.2d 743 (1989) (concurrence of
Beasley, J.); see also Thomas v. Carter, 234 Ga.App. 384, 506 S.E.2d
377, 379 (1998) (mother may recover if "injured by the same force
which injures the fetus"). Littleton II certainly would have
been more explicit if the Court had intended to overrule this part
of Littleton I.
Therefore the Supreme Court's second Littleton
decision is merely a holding on the facts that the mother failed to
show, as Littleton I demands, injury to herself from the same act
of alleged negligence which also injured her child. The decision clearly
does not overrule Littleton I, but simply implements its command.
Littleton II is quite consistent with similar
rulings from other states in nearly identical cases. Those opinions
reaffirm the potential for recovery of emotional damages stemming
from injury to a child, yet hold that a plaintiff parent could not
recover for failure to satisfy relevant threshold requirements. See,
e.g., Johnson v. Jamaica Hosp., 62 N.Y.2d 523, 478 N.Y.S.2d 838, 467
N.E.2d 502, 503 (1984) (in a "zone of danger" jurisdiction,
parents of abducted child were not at risk and could not recover for
own emotional injury resulting from hospital's negligence); Schram
v. Herkimer Mem. Hosp., 115 A.D.2d 882, 496 N.Y.S.2d 577 (1985) (similarly,
father could not recover for distress from observing his child's death
by negligent asphyxiation, because he was at no risk of physical injury).
Just as in Johnson and Schram and Littleton
I, this Court should reaffirm this State's traditional impact rule.
Littleton II does not change the rule, but only applies it to the
facts of that case.
II. STATE FARM'S $25,000 POLICY CAP DOES NOT PRECLUDE
MS. LEE'S RECOVERY FOR HER OWN EMOTIONAL DAMAGES.
Amicus subscribes in full to
Ms. Lee's argument that she was entitled to take advantage of a separate
$25,000 policy cap for her own injuries, separate and apart from those
to her child in the same accident. Amicus wishes only to call additional
authority to this Court's attention.
Two additional cases hold that an emotional
distress claim is not derivative within the meaning of this policy
language, but is part of a separate bodily injury claim. State Farm
Mut. Auto. Ins. Co. v. Ramsey, 295 S.C. 349, 368 S.E.2d 477 (Ct. App.),
aff'd, 297 S.C. 71, 374 S.E.2d 896 (Sup. Ct. 1988); Employer's Cas.
Ins. Co. v. Foust, 29 Cal.App. 3d 382, 105 Cal.Rptr. 505 (1972).
At least one case cited by State Farm supports
Ms. Lee. First Ins. Co. of Hawaii v. Lawrence, 881 P.2d 489 (1994).
In a jurisdiction which allows mental distress damages to some parents
who witness a child's injuries after the fact, such damages are derivative
because they depend solely upon viewing the child's wounds. But in
the same jurisdiction, if a parent like Ms. Lee views the injuries
as part of the accident, emotional distress claims are not derivative.
"[W]e adopt the proposition that, if the Smiths had been witnesses
to the event that caused Christopher's death, they would have non-
derivative and wholly independent [negligent infliction of emotional
distress] claims that would trigger separate single limits under the
policy as to each proven claim." Id. at 500 (emphasis in the
original); see also United Pac. Ins. Co. v. Edgecombe, 41 Wash. App.
741, 706 P.2d 233 (1985) (similarly distinguishing Foust solely on
the basis that in Edgecombe, plaintiff father saw only his son's injuries,
not the incident which caused them).
In sum, accident victims like Ms. Lee have
independent claims for emotional distress for viewing injury to a
child, compensable without regard to a cap on the child's damages.
Furthermore, cases finding that emotional distress damages are derivative
tend to recognize this general rule, but then distinguish the facts.
Those cases are unlike Ms. Lee's: the parent merely saw the child's
suffering after the fact.
CONCLUSION
This Court should reverse the decision of
the trial court and direct summary judgment instead for Plaintiff-Appellant
on the facts stipulated by the parties
.
This 18th day of February, 1999.
This Brief Prepared by:
David A. Webster
300 Hurt Building
50 Hurt Plaza
Atlanta, GA 30303-2914
(404) 681-3070
|
