Opinion
CV116008541.
11-27-2012
Efrain PACHECO et al. v. Vedran JAHIC et al.
UNPUBLISHED OPINION
SWIENTON, J.
Since the Supreme Court has determined in Voris v. Molinaro, 302 Conn. 791, 798 (2011), that a derivative loss of consortium claim fails when the underlying tortious claim has been resolved, the Superior Court has not had the opportunity to address whether a derivative bystander emotional distress claim also fails when the underlying claim has been resolved. The defendants raise that issue in their motion to strike. The issue before the court is whether the plaintiff has a legally viable claim for bystander emotional distress arising from the bodily injury to his daughter subsequent to the settlement of his daughter's claim. The matter was commenced by summons and complaint on December 23, 2010, with the original plaintiffs, Efrain Pacheco, and his daughter, Liz Pacheco. The action between Liz and the defendants settled, and the matter was withdrawn as to Liz. Thereafter the plaintiff, Efrain, filed an amended complaint which contains two counts of bystander emotional distress stemming from the accident in which he observed his daughter, Liz, being struck by a motor vehicle.
The defendants move to strike both counts claiming that bystander emotional distress is a derivative claim that does not survive as a stand alone claim. The action is no longer being maintained with the underlying injury to the plaintiff's daughter, because that action was settled for the per person policy limits of the insurance policy held by the defendants. Therefore, the defendants contend that the amended complaint fails to set forth a legally cognizable cause of action, and should be stricken.
Motion to Strike Legal Standard
" The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." [fn2] (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). " A motion to strike is the proper procedural vehicle ... to test whether Connecticut is ready to recognize some newly emerging ground of liability." (Internal quotation marks omitted.) Ortiz v. Waterbury Hospital, judicial district of Waterbury, Docket No. CV 99 154112 (March 9, 2000) (26 Conn. L. Rptr. 547).
" A motion to strike ... does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). " [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ... [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. at 498. Further, our Supreme Court " will not uphold the granting of [a] motion to strike on a ground not alleged in the motion." Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987).
Bystander Emotional Distress
" [B]ystander emotional distress, like loss of consortium, is a third party cause of action. Therefore, as with loss of consortium, bystander emotional distress is a form of third party liability of the defendants. That is, the ... plaintiffs seek to recover from the defendants, not for tortious harms that the defendants inflicted directly on them, but for emotional harms they suffered as a result of the defendants' tortious conduct committed against another with whom they have a close relationship ..." (Internal quotation marks omitted.) Galgano v. Metropolitan Property & Casualty Ins. Co., 267 Conn. 512, 520-21, 838 A.2d 993 (2004). The core issue raised by the defendants' motion is whether a bystander emotional distress claim properly brought with a claim by the injured third party survives when that underlying claim is resolved.
The parties have not cited and the court has not found any appellate authority on the issue of whether or not a bystander emotional distress claim extinguishes at the conclusion of the underlying claim. The defendants argue that a bystander emotional distress claim must be maintained concurrently with the claim by the directly injured party. They contend that bystander emotional distress claims are equivalent to loss of consortium claims in that they are both derivative actions predicated upon an injury to a third party, and, as such, both should be treated the same way. Since the settlement of the underlying claim bars the derivative action for loss of consortium; See, Voris v. Molinaro, 302 Conn. 791, 798 (2011); the defendants argue it would also bar the derivative action for bystander emotional distress.
The plaintiff cites one trial court case, Simoni v. Hines, Superior Court, judicial district of Middlesex, Docket No. CV 07 5002022 (August 12, 2008) [ 46 Conn. L. Rptr. 127], where the court allowed a claim of bystander emotional distress to stand alone, even though the defendants made the same argument that is being made here. The trial court rejected the argument, and allowed the bystander emotional distress claim to continue as a free standing cause of action.
In Voris v. Molinaro, the dispositive issue was whether a claim for loss of consortium is barred by the settlement of the underlying negligence claim. The Supreme Court held that the settlement of the predicate claim extinguishes the derivative claim for loss of consortium. In doing so, the court set forth strong policy reasons that support its holding, which policy reasons are equally applicable to a bystander emotional distress claim. " First, when the claims are not resolved together, there is a greater probability of overlapping damages awards ... Second, it is inherent in the nature of a derivative claim ... that the scope of the claim is defined by the injury done to the principal ... Third, requiring both claims to be resolved simultaneously promotes efficiency and conserves judicial resources by protecting against the repeated litigation of the same underlying issues. Additionally, because only a single ‘ per person’ liability insurance policy limit may be available to satisfy both the direct injury and the accompanying loss of consortium claim ... fairness dictates that both claims should be evaluated and resolved together." (Citations omitted; internal quotation marks omitted.) Id., at 798-802.
This fourth policy consideration is also relevant to a bystander emotional distress claim as demonstrated in Galgano v. Metropolitan Property and Casualty Ins. Co., supra, 267 Conn. at 512. In that case, the plaintiff and his son were injured in a motorcycle accident involving an uninsured motor vehicle. The plaintiff made his claim pursuant to the uninsured motorist provision of his insurance policy, which provided that the maximum amount of uninsured motorist coverage payable for each person was $20,000 for all claims by all persons for damages for bodily injury to any one person. The defendant paid $20,000 to the plaintiff's son in compensation for his bodily injuries, exhausting the " each person" coverage applicable for the injuries to the son. The plaintiff was seeking to recover for his physical injuries and for bystander emotional distress from his having witnessed the accident that caused his son's injuries. The defendants argued (1) that the plaintiff's bystander emotional distress claim was derivative of his son's claim, and therefore it could not be asserted unless the plaintiff's son was a party to the action, and (2) that his claim was barred because the " each person" uninsured motorist coverage limits applicable to the plaintiff's son had been paid.
The Supreme Court was asked, on reservation, two questions. " (a) Where [the insurer] ... has paid the ‘ each person’ Uninsured Motorist Coverage limit applicable for bodily injury of the [the plaintiff's son] and the insurance policy provides that the maximum amount the insurer must pay ‘ for all claims by all persons for damages for bodily injury to any one person is the " each person" Uninsured Motorist Coverage limit, ’ is [the plaintiff] entitled to compensation for bystander emotional distress arising from witnessing the bodily injury to his son ... under the separate ‘ each person’ Uninsured Motorist Coverage limit available to [the plaintiff]? and (b) If the answer to [the first question] is in the affirmative, can [the plaintiff] have a legally viable claim for bystander emotional distress arising from the bodily injury to [his son] for uninsured motorist coverage against [the insurer] subsequent to the prior settlement of the uninsured motorist claim for bodily injury to [the plaintiff's son] and in the absence of [the son] as a party to this action?" Id. at 516-17. The Supreme Court answered the first question in the negative, and centered the issue on how the insurance policy treated the emotional injuries rather than characterizing the plaintiff's injuries as " discrete and independent or derivative." Id., at 518.
Because the answer to the first question was no, the Supreme Court found it unnecessary to address the second question, which is the issue presently before the court.
Nevertheless, Galgano is instructive. " It is beyond dispute that, but for the bodily injury to his son, the plaintiff would not have suffered any emotional injuries. In other words, the plaintiff's injuries are the natural and probable consequence of his having witnessed the accident that injured his son. Therefore the measure of the plaintiff's recovery is not governed by the fact that his separate damages arose out of the same accident, but by the fact that they arose out of the same bodily injury to his son." Id., at 520. Instead of treating a claim for bystander emotional distress as a separate bodily injury, the court found that such a claim derives from and is part of the bodily injury to another. " [B]ecause emotional distress, by itself, flows from the bodily injury, it can be compensable only if it flows from the bodily injury of another person. " (Emphasis added.) Id., at 523. See also, Taylor v. Mucci, 288 Conn. 379, 389, 952 A.2d 776 (2008) (" ... Emotional distress, without accompanying physical harm, does not constitute ‘ bodily injury’ as defined in the [liability policy], " and therefore, the plaintiff could not recover under a separate per person coverage limitation after the plaintiff's son recovered the maximum account due under the policy.)
In both Galgano and Taylor, the resolution of the issue turned on the contractual language of the policies rather than on the derivative nature of the claims. However, in both cases, the Supreme Court took the position held by a majority of jurisdictions " that, as a matter of law, the term bodily injury in a liability policy does not include emotional distress unaccompanied by physical harm." Taylor v. Mucci, supra, 288 Conn. at 386.
The treatment of a claim for bystander emotional distress as derivative of the underlying bodily injury claim is " consistent with [the Supreme Court's] approach to bystander emotional distress claims in other contexts." See, Clohessy v. Bachelor, 237 Conn. 31, 49, 675 A.2d 852 (1996), (where the Supreme Court recognized a claim for bystander emotional distress under certain limited circumstances, and allowed the plaintiff to recover damages for the emotional distress that occurred " as a result of harm done to a third party"); Mendillo v. Board of Education, 246 Conn. 456, 488, 717 A.2d 1177 1998) (where the court noted that bystander emotional distress, like loss of consortium, is a third party cause of action ... [A claim for bystander emotional distress] is a form of third party liability of the defendants. That is, the ... plaintiffs seek to recover from the defendants, not for the tortious harms that the defendants inflicted directly on them, but for emotional harms they suffered as a result of the defendants' tortious conduct committed against another with whom they have a close relationship ..."). Id., at 480.
Our Supreme Court has recently held in Voris that a prior settlement by the injured spouse bars a later action for loss of consortium by a spouse. Because bystander emotional distress, like a claim for loss of consortium is a derivative cause of action based upon the bodily injury of another, the court finds that a claim for bystander emotional distress cannot be maintained after the resolution of the underlying injury.
CONCLUSION
The motion to strike counts one and two of the plaintiff's amended complaint is granted.