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
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