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Daley v. Allstate Insurance Co.

May 13, 1997

PAUL DALEY, APPELLANT,
v.
ALLSTATE INSURANCE COMPANY, A FOREIGN INSURANCE COMPANY, RESPONDENT.



Appeal from Superior Court of Benton County. Docket No: 94-2-01365-1. Date filed: 02/27/96. Judge signing: Hon. Dennis D. Yule.

Authored by Philip J. Thompson. Concurring: Dennis J. Sweeney, John A. Schultheis.

The opinion of the court was delivered by: Thompson

THOMPSON, J. Paul Daley appeals the summary dismissal of his claim for coverage under the underinsured motorist provision of his policy with Allstate Insurance Company. He contends the superior court incorrectly concluded the policy did not provide coverage for the emotional injuries he claims. Mr. Daley also requests attorney fees because of Allstate's denial of coverage. We reverse and award attorney fees.

Mr. Daley was a Benton County sheriff's deputy on January 17, 1990, when he stopped his police vehicle to assist a man whose motorcycle had stopped running. State Patrol Trooper Raymond Hawn *fn1 also stopped and parked his vehicle behind Mr. Daley's, across Wine Country Road from the motorcycle. As the two officers were talking with the motorcyclist, a car driven by Jan Spencer "clipped" Mr. Daley and "struck" Trooper Hawn. Trooper Hawn suffered massive head and internal injuries and later died. Mr. Daley's physical injuries were relatively less serious, but he suffers from continuing emotional or psychological problems, including depression and post-traumatic stress disorder.

Mr. Daley apparently obtained the policy limits of Ms. Spencer's liability insurance policy, and he then sought additional compensation under the underinsured motorist (UIM) provision of his Allstate policy. The UIM provision provided in pertinent part:

We will pay damages for bodily injury or property damage which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle. Injury must be caused by accident and arise out of the ownership, maintenance or use of an underinsured motor vehicle. Bodily injury means bodily injury, sickness, disease or death. Property damages means injury to or destruction of property.

Allstate refused to provide benefits under this provision, and Mr. Daley filed this action. On Allstate's motion for summary judgment, the superior court agreed the term "bodily injury" does not include emotional or psychological damages. Mr. Daley appeals the court's summary dismissal.

In this context, our inquiry is the same as the superior court's. Our Lady of Lourdes Hosp. v. Franklin County, 120 Wash. 2d 439, 451, 842 P.2d 956 (1993). Summary judgment is proper only when the pleadings, affidavits, depositions, and admissions on file, viewed in a light most favorable to the nonmoving party, show there is no issue of material fact, and the moving party is entitled to judgment as a matter of law. CR 56(c); Wilson v. Steinbach, 98 Wash. 2d 434, 437, 656 P.2d 1030 (1982). We resolve all reasonable inferences from the evidence against the moving party and grant summary judgment only if reasonable people could reach only one Conclusion. Detweiler v. J.C. Penney Cas. Ins. Co., 110 Wash. 2d 99, 108, 751 P.2d 282 (1988).

The primary issue in this case is whether Allstate's UIM policy covered Mr. Daley's emotional injuries. RCW 48.22.030(2) requires insurers to offer coverage for damages from underinsured motor vehicles. An underinsured motor vehicle is

a motor vehicle with respect to the ownership, maintenance, or use of which either no bodily injury or property damage liability bond or insurance policy applies at the time of an accident, or with respect to which the sum of the limits of liability under all bodily injury or property damage liability bonds and insurance policies applicable to a covered person after an accident is less than the applicable damages which the covered person is legally entitled to recover.

RCW 48.22.030(1). Policies issued under this statute "allow an injured party to recover those damages which the injured party would have received had the responsible party been insured with liability limits as broad as the injured party's statutorily mandated underinsured motorist coverage limits." Britton v Safeco Ins. Co., 104 Wash. 2d 518, 531, 707 P.2d 125 (1985); see Hamilton v. Farmers Ins. Co., 107 Wash. 2d 721, 727, 733 P.2d 213 (1987).

An initial question is whether Washington tort law permits Mr. Daley to recover for his emotional injuries. In other words, if Mr. Daley were not legally entitled to recover damages from Ms. Spencer, he would have no claim for coverage under the policy's UIM provision.

Historically, the law created "numerous artificial boundaries" limiting recovery for emotional damages in various circumstances. Hunsley v. Giard, 87 Wash. 2d 424, 434, 553 P.2d 1096 (1976). These boundaries are partly a result of concerns that "claims of mental harm will be falsified or imagined." W. Page Keeton et al., Prosser and Keeton on The Law of Torts sec. 54, at 361 (5th ed. 1984) (hereafter Prosser).

In Washington and elsewhere, however, emotional damages accompanying a physical injury are recognized as a proper (if "parasitic") element of recovery. Hunsley, 87 Wash. 2d at 428; see 16 David K. DeWolf & Keller W. Allen, Washington Practice, Tort Law and Practice sec. 4.5, at 78 (1993) (hereafter DeWolf); Prosser, supra, sec. 54, at 362-63; 4 Stuart M. Speiser et al., The American Law of Torts sec. 16:1, at 943-44 (1987); see, e.g., Green v. Floe, 28 Wash. 2d 620, 636-37, 183 P.2d 771 (1947); Redick v. Peterson, 99 Wash. 368, 370, 169 P. 804 (1918). In this ...


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