FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

01/07/2000

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 99-2034

________________________

D. C. Docket No. 97-01806-CV-T-17A

ALLSTATE INSURANCE COMPANY,

Plaintiff-Appellee,

versus

MARY A. CLOHESSY, et al.,

Defendants-Appellants.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(January 7, 2000)

Before ANDERSON, Chief Judge, TJOFLAT, Circuit Judge, and FAY, Senior Circuit Judge.

ANDERSON, Chief Judge:
FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

01/07/2000

THOMAS K. KAHN

CLERK

On March 22, 1993, Mary Clohessy and her sons Brendan and Liam Clohessy were walking

together near their home in New Haven, Connecticut. As they were attempting to cross a

street–Liam on his mother’s right and Brendan on his mother’s left–an automobile driven by an

uninsured motorist struck and killed Brendan. Mary and Liam witnessed the accident, but were not

struck by the automobile.

The Clohessy family had an automobile insurance contract (“Policy”) with Allstate Insurance

Company (“Allstate”), which included uninsured motorist coverage. The insurance contract was

formed in Florida. The Policy contained certain limits of liability; in particular, it stated:

Uninsured Motorist Insurance – Coverage . . .

We [Allstate] will pay damages for bodily injury, sickness, disease or death which

a person insured is legally entitled to recover from the owner or operator of an

uninsured auto. Injury must be caused by accident and arise out of the ownership,

maintenance or use of an uninsured auto. We will not pay any punitive or exemplary

damages.

. . . .

Limits of Liability

. . . .

(a) The coverage limit stated on the declaration page for:

(1) “each person” is the maximum that we will pay for damages arising out

of bodily injury to one person in any one motor vehicle accident, including

damages sustained by anyone else as a result of that bodily injury, sickness,

disease or death.

When the limits of two or more insured autos are stacked, our maximum limit

of liability for all damages to one person in any one accident is the sum of the

“each person” limit for each insured auto shown on the declarations page.

(2) “each accident” is the maximum that we will pay for damages arising out

of bodily injury to two or more persons in any one motor vehicle accident.

When the limits of two or more insured autos are stacked, subject to the limit

for “each person”, our maximum limit of liability for all damages to two or

more persons in any one accident is the sum of the “each accident” limit for

each insured auto shown on the declarations page. 
FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

01/07/2000

THOMAS K. KAHN

CLERK

1

 In particular, the district court followed the command of Erie R.R. v. Tompkins, 304

U.S. 643 (1938), and applied the conflicts of law rule of the state in which it is located, in this

case Florida. Applying that Florida law, the district court concluded that under Sturiano v.

Brooks, 523 So.2d 1126 (Fla. 1988), the terms of an automobile insurance policy are governed

by the law of the jurisdiction in which the contract was formed, again in this case Florida. See

Allstate Ins. Co. v. Clohessy, 32 F.Supp.2d 1333, 1335 (M.D.Fla. 1998). We agree. Florida law

“determines the rights and risks of the parties to automobile insurance policies on the issue of

coverage.” Lumbermens Mut. Cas. Co. v. August, 530 So.2d 293, 295 (Fla. 1988).

After the appropriate stacking, the Policy’s “each person” coverage limit was $200,000 and “each

accident” coverage limit was $600,000.

Under the Policy’s uninsured motorist coverage, the Estate of Brendan Clohessy made a

claim and received $200,000, the “each person” limit. Under the Policy, Mary and Liam Clohessy

(“the Clohessys”) also made a claim based on the emotional distress resulting from witnessing the

collision and Brendan’s death.

Allstate brought suit against the Clohessys for declaratory judgment asking the district court

to declare that the Policy’s limits of liability have been exhausted and that the Clohessys are not

entitled to recover anything further under the Policy. Allstate argued that the Clohessys’ insurance

claims, which are based on their claims against the uninsured motorist for negligent infliction of

emotional distress, are subject to the $200,000 “each person” limit which was applied to and

exhausted by the claim of Brendan Clohessy’s estate. Applying Florida law,1

 the district court

concluded that:

[A] Florida court considering this case would interpret the automobile insurance

policy at issue according to this rule that reason dictates is correct, that is, that the

per-person limit of liability apply [sic] to bystander emotional distress claims.

Allstate Ins. Co. v. Clohessy, 32 F.Supp.2d 1333, 1337 (1998). Accordingly, the district court

declared that the insurance policy limits have been exhausted and the Clohessys are not entitle to

recover anything further under the policy. See id.
FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

01/07/2000

THOMAS K. KAHN

CLERK

The Clohessys appeal to this Court arguing that the district court incorrectly resolved the

issue of whether their claims are subject to the “each person” limit which was exhausted by the pay

out to the Estate of Brendan Clohessy or instead subject to their own “each person” limit. The

parties have not cited nor have we uncovered any controlling Florida case on this issue. Moreover,

when faced with the same issue, courts in other states have split on its proper resolution. Compare,

e.g., Triechel v. State Farm Mut. Auto. Ins. Co., 930 P.2d 661 (Mont. 1997) (holding that a wife’s

claim for emotional distress resulting from witnessing her husband being hit and killed by a car was

not limited by the per person limit applied to her husband); Crabtree v. State Farm Ins. Co., 632

So.2d 736, 738 (La. 1994) (“[W]e conclude the wife’s mental anguish claim is not subject to the

single person policy limit regardless of whether her mental anguish ‘results from’ or ‘derives from’

her husband’s bodily injuries.”); and Pekin Ins. Co. v. Hugh, 501 N.W.2d 508 (Iowa 1993) (holding

that insured’s claim for bystander emotional distress was based on independent bodily injury and,

therefore, subject to the per occurrence limit rather than the per person limit of the policy) with

McNeill v. Metro. Property and Liability Ins. Co., 650 N.E.2d 793, 795 (Mass. 1995) (“[T]he

plaintiff’s emotional distress claim is a by-product of and entirely dependent upon the bodily injury

to his daughter. The claims thus are subject to the ‘per person’ limit.”)(internal quotations omitted)

and Gocha v. Shimon, 573 N.W.2d 218, 219 (Wis. Ct. App. 1997) (“The unambiguous language of

the ‘each person’ limitation in State Farm’s policy consolidates the bodily injuries to one person

with all injuries and damages to others which result from the one person’s bodily injuries. Because

the emotional stress of the Gochas would not have occurred but for the injury to Kyle, the ‘each

person’ limitation is applicable.”). Consequently, we seek the assistance of the Supreme Court of

Florida in resolving this issue.
FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

01/07/2000

THOMAS K. KAHN

CLERK

Having concluded that this case involves an unanswered question of state law that is

determinative of this appeal and having found no clear, controlling precedent in the decisions of the

Supreme Court of Florida, we certify the following question of law to the Supreme Court of Florida

for instructions:

ARE THE EMOTIONAL DISTRESS DAMAGES SUSTAINED BY MARY AND LIAM

CLOHESSY DAMAGES ARISING OUT OF THE BODILY INJURY TO BRENDAN

CLOHESSY, I.E., DAMAGES SUSTAINED AS A RESULT OF THAT BODILY INJURY,

AND THEREFORE SUBJECT TO THE SINGLE, ALREADY-REACHED, EACH

PERSON LIMIT APPLIED TO BRENDAN CLOHESSY?

In certifying this question, we do not intend the particular phrasing of it to limit the court in

its consideration of the problem posed by the case. In order to assist the court's consideration of the

case, the entire record, along with the briefs of the parties, shall be transmitted to the court.

QUESTION CERTIFIED.