Partridge v. Mong

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No. 102,541

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JESSICA PARTRIDGE,
Conservator, Natural Guardian, and Next Friend of Kolt Mong, and
Special Administrator of the Estate of Tim Mong, deceased,
Appellants,

v.

MARILYN MONG and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Appellees.

SYLLABUS BY THE COURT

1.
Summary judgment is appropriate when there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law. The evidence is
viewed in the light most favorable to the nonmoving party. Where reasonable minds
could differ as to the conclusions drawn from the evidence, summary judgment must be
denied.

2.
When an appellate court reviews the interpretation of an insurance contract and
there is no factual dispute, its review is de novo.

3.
Under the insurance policy language in this case, when a child who was not
physically injured claims he or she suffered mental distress that later manifested itself in
physical symptoms as a result of witnessing a parent's injuries and death in a vehicle
accident, the amount of any insurance coverage provided to him or her by the negligent
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party's insurer is included in the limit of coverage provided in the policy for the death of
the parent.

4.
An issue not raised before the district court usually cannot be raised on appeal.

Appeal from Gove District Court; EDWARD E. BOUKER, judge. Opinion filed April 22, 2011.
Affirmed.

Caleb Boone, of Hays, for the appellants.

Shannon D. Wead, of Foulston Siefkin LLP, of Wichita, for appellee State Farm Mutual
Automobile Insurance Company.

Before HILL, P.J., GREEN, J., and BUKATY, JJ.

BUKATY, J.: A tragic vehicle accident gave rise to this case and two others in the
Gove County District Court. A vehicle being driven by Marilyn Mong struck a tractor
being driven by her husband, Tim Mong, resulting in Tim's death at the scene. Inside
Marilyn's vehicle at the time as a passenger was Kolt Mong, stepson of Marilyn and the
natural son of Tim. In one case, Kolt, through his natural mother and guardian, Jessica
Partridge, filed suit against Marilyn for her negligence and requested damages for his
mental distress resulting from witnessing his father die very soon after the accident. In
another case, Tim's estate and his heirs filed both a survival and a wrongful death claim.
State Farm Mutual Automobile Insurance Company (State Farm) provided liability
coverage to Marilyn with limits of $100,000 for each person and $300,000 for each
accident and defended Marilyn in both suits. State Farm has apparently paid or offered to
pay the $100,000 limit for one person's injury.

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In the third case, which is the subject of this appeal, Kolt filed an action for
declaratory judgment against Marilyn and State Farm asking the district court to
determine that State Farm's policy provided up to $100,000 in liability coverage for his
mental distress claim over and above the $100,000 limit for the wrongful death and
survival claims resulting from his father's death. State Farm argued that any claim that
Kolt had was included in the $100,000 limit of its coverage for those wrongful death and
survival claims. The court found in favor of State Farm and ruled that the policy limit of
$100,000 for each person constituted the total liability insurance proceeds available for
the combination of Kolt's individual claim, the wrongful death claim, and the survival
claim. Kolt appeals. We conclude the district court properly interpreted the policy and
affirm.

It is important to note at the outset that this case does not involve an issue as to
whether Kolt has a cause of action for his mental distress. That issue resides in the
negligence claim Kolt filed against Marilyn. Nor is there an issue here as to whether the
State Farm policy provided coverage for it.

For the most part, the parties do not dispute the relevant facts. This appeal then
requires us to decide a pure question of law involving interpretation of insurance policy
language.

By way of background, Kolt sued Marilyn, as we stated, for his individual
damages, alleging her negligence caused the accident. In that case, Marilyn filed a motion
for summary judgment essentially arguing that Kolt had no claim for mental distress
because he suffered no physical injury. The district court denied summary judgment to
Marilyn, finding that Kolt had a viable action in Kansas and it was for the finder of fact
to determine the existence, nature, and extent of any emotional shock suffered by Kolt.
More specifically, the court concluded that a person who contemporaneously observes
the event giving rise to the injury or death of a close relative, and who suffers emotional
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shock but no physical injuries, might recover damages from the tortfeasor under Kansas
law. As we stated, that issue is not before us in this appeal, and State Farm's counsel
seemed to concede the validity of that ruling at oral argument in this appeal.

In the declaratory action case which is before us, the parties filed competing
motions for summary judgment. After argument, the district court found the policy
language to be clear and unambiguous. In applying the language to the facts here, it then
concluded that under that language any of Kolt's individual claims resulting from
witnessing his father's death were included in the $100,000 limit of coverage provided for
the injury and death of his father and were not entitled to a separate $100,000 limit. We
agree.

Our standard of review for cases decided on summary judgment is well established
and the parties have correctly noted it in their briefs. Summary judgment is appropriate
when there are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. The evidence is viewed in the light most favorable to the
nonmoving party. Where reasonable minds could differ as to the conclusions drawn from
the evidence, summary judgment must be denied. Bracken v. Dixon Industries, Inc., 272
Kan. 1272, 1274-75, 38 P.3d 679 (2002).

Since the issues raised in this case require that we interpret an insurance contract
and we are in as good a position to do so as the district court, our review is de novo. See
Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004) (Where there is no factual dispute,
appellate review of an order granting summary judgment is de novo.); see Marshall v.
Kansas Med. Mut. Ins. Co., 276 Kan. 97, 111, 73 P.3d 120 (2003) (Review of the
interpretation of insurance contracts is unlimited.).

Only a few provisions of the policy are relevant to the issues here. Initially, the
policy states that State Farm will pay damages for which an insured becomes legally
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liable because of bodily injury to others caused by accident in the use of the insured's car.
It then states: "Bodily Injury"—means physical bodily injury to a person and sickness,
disease or death which results from it." The declarations page provides coverage of
$100,000 for each person and $300,000 for each accident. The section dealing with the
limits of liability then provides:

"The amount of bodily injury liability coverage is shown on the declarations page
under 'Limits of Liability—Coverage A—Bodily Injury, Each Person, Each Accident'.
Under 'Each Person' is the amount of coverage for all damages due to bodily injury to
one person. 'Bodily injury to one person' includes all injury and damages to others
resulting from this bodily injury, and all emotional distress resulting from this bodily
injury sustained by other persons who do not sustain bodily injury."

Now turning to a discussion of the issues in this appeal, it is important to first note
the precise nature of the damage claim Kolt puts forth. In denying the summary judgment
motion filed by Marilyn in Kolt's underlying tort case, the district court found as an
undisputed fact that Kolt suffered no physical injuries as a result of the accident. Kolt
acknowledges that he suffered no immediate bodily injury and that he was not struck in
any fashion. In his brief he states that he did not have any "immediate physical injuries
from any percussive impact resulting from any physical force at play at the scene of the
impact." What he makes a claim for is the severe mental anguish with physical bodily
manifestations he suffered as a result of witnessing his father's death.

In this appeal, Kolt then argues, as he did to the district court, that this claim
constitutes a separate and independent injury "resulting from" the death of his father that
entitles him to an additional $100,000 per person coverage over and above the $100,000
available for the wrongful death and survival claims that are covered under the State
Farm policy. Next, he argues that separate affidavits attached to his brief establish that
disputed facts exist which preclude summary judgment. Finally, he argues that the
Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq., mandates
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there be coverage for his claim and the district court's decision amounted to violation of
his constitutional rights to equal protection of the laws under the United States and
Kansas Constitutions.

State Farm, without disputing the validity of Kolt's underlying damage claim,
focuses on the policy language and argues that it plainly and unambiguously does not
provide for an additional $100,000 for the claim. It points out there are no Kansas cases
on point that support Kolt's argument and cases from other jurisdictions containing
similar facts and policy language support the district court's decision in this case. Not
surprisingly, State Farm denies there are any disputed facts that preclude summary
judgment or that any equal protection violation occurred.

We note that Kolt spent much of his brief and argument pointing out that several
states recognize that a person, even though he or she has suffered no physical injury, still
has a cause of action for mental distress that he or she suffers from witnessing an event
that caused injury or death to a family member or loved one. The effort misses the
essence of the issues in this appeal, however. As we have stated, the core issue boils
down to determining the amount of coverage that exists for such a mental distress claim
under the relevant policy and not whether the plaintiff has a cause of action for such.

Kolt acknowledges there are no Kansas cases on point. He points us to cases from
other jurisdictions that he urges support his position.

The only case Kolt cites with the same policy language as that in State Farm's
policy here is Hebert v. Webre, 971 So. 2d 1238 (La. App. 2007) (Hebert I), a decision
from the Louisiana Third Circuit Appellate Court. However, Kolt fails to mention that
Hebert I was overturned a year later by the Louisiana Supreme Court in Hebert v. Webre,
982 So. 2d 770 (La. 2008) (Hebert II). The case involved a wife's claim for mental
distress damages because she had witnessed the severe injuries her husband suffered. She
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argued that the relevant insurance policy provided additional coverage to her for those
injuries over and above the limit provided for the husband's injuries. The Louisiana
Supreme Court ruled in favor of the insurer and distinguished the case from previous
cases in which the policy had not defined bodily injury as physical bodily injury. In so
doing, the Hebert II court stated:

"The first distinction is that 'bodily injury' is defined in this policy as 'physical
bodily injury to a person and sickness, disease or death which results from it [emphasis
added]' whereas in Crabtree [v. State Farm Ins. Co., 632 So. 2d 736 (La. 1994)] and Hill
[v. Shelter Mut. Ins. Co., 935 So. 2d 691 (La. 2006)], 'bodily injury' was defined as
'bodily injury to a person and sickness, disease and death which results from it.' In
Crabtree, this Court stated that 'if the definition [of "bodily injury"] was intended to
cover only external, physical injuries, then "bodily injury" easily could have been defined
in a more restrictive fashion through the use of such words,' i.e., 'external, physical.' State
Farm followed the suggestion of Crabtree and amended its definition of 'bodily injury' to
require that such injury be 'physical' in nature to differentiate it from a mental or
emotional injury. . . . [W]e find that the addition of the word 'physical' is sufficient under
Crabtree to differentiate a 'bodily injury' sustained in a physical manner, which would be
entitled to separate per person limits, from an injury which is emotional in nature and,
though might have physical consequences, is not a 'physical' bodily injury.
"The second major distinction is found in the definition of 'bodily injury to one
person.' In Crabtree and Hill, 'bodily injury to one person' was defined to include 'all
injury and damages to others resulting from this bodily injury.' This State Farm policy
defines 'bodily injury to one person' to include 'all injury and damages to others
resulting from this bodily injury, and all emotional distress resulting from this bodily
injury sustained by other persons who do not sustain bodily injury.' (Underline added.)
. . . .
". . . As we explained in Hill, the type of injuries suffered by a wrongful death
plaintiff are emotional distress type injuries. In addition, under the terms of this policy,
even if 'bodily injury' could be interpreted to include emotional distress which manifests
itself physically, the policy includes 'all emotional distress damages' in the 'Each Person'
limit, not just ones that do not manifest themselves physically or do not rise to the level
of severe and debilitating." 982 So. 2d at 776-78.
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None of the other cases cited by Kolt involve policy language similar to State
Farm's policy here. For example, in State Farm Mut. Auto Ins. v. Connolly, 212 Ariz.
417, 132 P.3d 1197 (2006), the policy section stating the limits of coverage for each
bodily injury did not define such bodily injury as physical bodily injury. Nor did the
policies involved in Crabtree or Pekin Ins. Co. v. Hugh, 501 N.W.2d 508 (Iowa 1993).
Neither did the policies in those cases provide that: "'Bodily injury to one person'
includes all injury and damages to others resulting from this bodily injury, and all
emotional distress resulting from this bodily injury sustained by other persons who do
not sustain bodily injury."

In contrast to the absence of case law from Kansas and other states to support
Kolt's position, several cases from other jurisdictions have found in favor of the insurer
under the same or similar facts and policy language.

In Estate of Gocha v. Shimon, 215 Wis. 2d 586, 573 N.W.2d 218 (1997), four
members of a family witnessed the accidental death of another family member who was
riding a bike. The driver who struck the decedent was insured under a policy with
virtually the same language that exists in this case. The district court granted summary
judgment to the insurance company, finding all claims were subject to the each person
limit of $100,000, rather than the each accident claim of $300,000.

"The Gochas correctly point out that the Bowen [v. Lumbermens Mutual Cas.
Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994)] court recognized the tort of negligent
infliction of emotional distress in instances where a family member witnesses the death
of another family member. [Citation omitted.] That the Gochas have suffered Bowen-type
emotional injuries is not really contested; it however begs the real controversy . . . .
. . . .
''The bodily injury to Klye includes all injury and damages to others resulting
from Kyle's bodily injury. But for the bodily injury to Kyle, the Gochas would not have
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suffered any emotional injuries. Their injuries are the natural and probable consequence
of witnessing the accident that killed Kyle." 215 Wis. 2d at 591-93.

See Allstate Ins. Co. v. Tozer, 392 F.3d 950 (7th Cir. 2004); State Farm Mut. Auto. Ins.
Co. v. Mitchell, No. 04-142-B-W, 2005 W.L. 58100 (D. Me. 2005) (unpublished
opinion); Allstate Ins. Co. v. Clohessy, 32 F. Supp. 2d 1333 (M.D. Fla. 1998); Galgano v.
Metropolitan Property, 838 A.2d 993 (Conn. 2004); First Ins. Co. of Hawaii v.
Lawrence, 881 P.2d 489 (Hawaii 1994); McNeill v. Metropolitan Property & Liability
Ins. Co., 420 Mass. 587, 650 N.E.2d 793 (1995); Farm Bureau Ins. of Nebraska v.
Martinsen, 659 N.W.2d 823 (Neb. 2003); and Bowman v. Holcomb, 614 N.E.2d 838
(Ohio App. 1992).

In essence, Kolt argues he suffered mental distress from witnessing his father's
death. He does not argue that he suffered mental distress from a bodily injury he himself
sustained in the accident. As such, the damages Kolt is entitled to claim for such mental
distress result from the physical bodily injury that caused his father's death. We conclude
then, as did the courts in the cases cited above, that under the clear and unambiguous
terms of State Farm's policy, those claimed damages are included within the limits of
coverage provided for the injury that caused his father's death.

Kolt next argues that separate affidavits of mental health professionals attached to
his brief establish that disputed facts exist which preclude summary judgment.
Specifically, Kolt urges they "prove independent bodily injury as defined by the policy
which has become manifest not through physical impact but as an outgrowth of [his]
emotional distress." The argument simply rephrases and refocuses his position. He is still
claiming damages for mental distress with physical manifestations that all resulted from
him witnessing the bodily injury that his father suffered and died from. While the
affidavits establish he suffered significant mental distress, they afford him no support for
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his claim that the State Farm policy provides him an additional $100,000 in coverage
over and above the $100,000 provided for the injuries to his father.

Finally, Kolt argues his evidence of the physical manifestations of his emotional
and psychological injuries were sufficient outgrowths of the mental anguish suffered
during and after the accident to support recovery for pain and suffering under the
KAIRA. Kolt argues that by failing to allow recovery under the KAIRA, the district
court's decision violated his constitutional right to equal protection of the laws under the
United States Constitution and the Kansas Constitution Bill of Rights. Kolt submits that
he raised these issues during argument on the summary judgment motion and/or his
motion to alter or amend judgment.

The argument fails. First, we find nothing in the record indicating that Kolt raised
this issue to the district court. Significantly, the record does not contain a transcript of the
arguments at the hearing on the motion to alter or amend judgment where Kolt contends
that discussion of this issue apparently occurred. Constitutional issues not raised before
the district court cannot be raised on appeal. Miller v. Bartle, 283 Kan. 108, 119, 150
P.3d 1282 (2007). More importantly, this argument is premised on the fact that the policy
does not provide coverage for Kolt's mental distress claim. In fact, the district court did
not address this point, and State Farm does not dispute there was coverage. It argues only
that the amount available for Kolt's individual claim is included in the $100,000 available
for the injury and death of his father.

The district court correctly ruled as a matter of law in State Farm's favor on this
last point. The plain language of the policy provides $100,000 for the wrongful death and
survival claims filed by Tim's estate, and his heirs and any mental distress damages Kolt
suffered from witnessing his father's injuries and death are included in that $100,000
limit.

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Affirmed.