96-028

No. 96-028

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

CAROLYN TREICHEL

Petitioner and Respondent,

v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE

COMPANY, an Illinois corporation

registered to do business in Montana,

and RUTH HINTZ,

Defendants and Appellants,

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Ed McLean, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William Conklin, Allen P. Lanning, Conklin, Nybo,

LeVeque & Murphy, Great Falls, Montana

For Respondent:

Thomas J. Beers, Connell, Beers & Alterowitz,

Missoula, Montana

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Submitted on Briefs: August 22, 1996

Decided: January 2, 1997

Filed:

__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

 Petitioner Carolyn Treichel (Carolyn) brought this action

against State Farm Mutual Automobile Insurance Company (State Farm)

seeking a ruling that Carolyn's claim for negligent infliction of

emotional distress is not subject to the "Each Person" policy limit

applicable to her husband's claim. The District Court for the

Fourth Judicial District, Missoula County, granted Carolyn's Motion

for Summary Judgment and entered judgment in her favor. State Farm

appeals. We affirm.

 The sole issue we address on appeal is whether the "Each

Person" or the "Each Accident" limits of liability set out and

contained in the State Farm policy apply to Carolyn's claim for

negligent infliction of emotional distress.

 Factual and Procedural Background

 On August 9, 1992, Carolyn and her husband, Fredie, were

riding their bicycles on Old Highway 200 about two miles east of

East Missoula when Fredie was struck from behind by an automobile

driven by Ruth Hintz (Hintz). Carolyn was riding some distance

behind Fredie and was not injured. Carolyn saw Hintz's car strike

Fredie and throw him into the air. She also saw the severe head

wound Fredie received when his head hit the vehicle's windshield

before he fell to the pavement. Fredie subsequently died from the

injuries he sustained in the accident.

 Hintz was insured by an automobile policy issued by State Farm

that provided in part:

 Limits of Liability:

 The amounts of bodily injury liability coverage is [sic]

 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. Under "Each

 Accident" is the total amount of coverage, subject to the

 amount shown under "Each Person," for all damages due to

 bodily injury to two or more persons in the same

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 accident. 

The policy limited bodily-injury liability coverage to $25,000 for

each person and $50,000 for each accident. State Farm paid

Fredie's estate $25,000.

 On February 10, 1995, Carolyn brought this action against

State Farm and Hintz claiming that she is entitled to an additional

$25,000 under the policy for her emotional distress. In the Agreed

Statement of Facts, filed April 25, 1995, the parties agreed that

Carolyn met all of the elements necessary for a claim of negligent

infliction of emotional distress as set forth in the case of

Versland v. Caron Transport (1983), 206 Mont. 313, 671 P.2d 583. 

The parties further agreed that the only issue to be determined by

this action is "whether the 'each person' or 'each accident' limits

of liability set out and contained in the policy . . . applies to

[Carolyn's] claim for negligent infliction of emotional distress." 

 Carolyn filed a Motion for Summary Judgment on May 23, 1995,

contending that, as a matter of law, her claim for negligent

infliction of emotional distress is an independent, non-derivative

cause of action separate from Fredie's claim and thus covered under

the "Each Accident" limits of liability contained in the policy. 

State Farm filed a Motion for Summary Judgment the following day.

 After hearing oral argument, the District Court granted

Carolyn's Motion for Summary Judgment, denied State Farm's Motion

for Summary Judgment and entered judgment in Carolyn's favor. 

State Farm appeals the District Court's order and judgment.

 Discussion

 Whether the "Each Person" or the "Each Accident"

 limits of liability set out and contained in the State

 Farm policy apply to Carolyn's claim for negligent

 infliction of emotional distress. 

 In its Opinion, Order and Declaratory Judgment, the District

Court determined that Carolyn's claim for negligent infliction of

emotional distress arose "out of the traumatic personal impact upon

her own emotional and physical well-being by actually and

immediately experiencing the accident which killed her husband

directly in front of her." The court concluded that Carolyn was a

second injured party in the accident, thus it granted Carolyn's

Motion for Summary Judgment and declared that under the policy,

Carolyn was entitled to an additional $25,000 for emotional

distress damages separate and apart from the $25,000 limitation on

Fredie's claim. 

 Our standard of review in appeals from summary judgment

rulings is de novo. Motarie v. N. Mont. Joint Refuse Disposal

(1995), 274 Mont. 239, 242, 907 P.2d 154, 156 (citing Mead v.

M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785). When

we review a district court's grant of summary judgment, we apply

the same evaluation as the district court based on Rule 56,

M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261,

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264, 900 P.2d 901, 903. In Bruner, we set forth the following

inquiry:

 The movant must demonstrate that no genuine issues of

 material fact exist. Once this has been accomplished,

 the burden then shifts to the non-moving party to prove,

 by more than mere denial and speculation, that a genuine

 issue does exist. Having determined that genuine issues

 of fact do not exist, the court must then determine

 whether the moving party is entitled to judgment as a

 matter of law. We review the legal determinations made

 by a district court as to whether the court erred. 

Bruner, 900 P.2d at 903 (citations omitted). The parties in the 

case before us stipulated in their Agreed Statement of Facts that

the only remaining issue in this case involves the interpretation

of the State Farm policy. We have previously stated that the

interpretation of an insurance contract involves a question of law. 

Wellcome v. Home Ins. Co. (1993), 257 Mont. 354, 356, 849 P.2d 190,

192.

 The parties in this case stipulated that Carolyn met all of

the elements for a claim of negligent infliction of emotional

distress as set out in Versland v. Caron Transport (1983), 206

Mont. 313, 671 P.2d 583. However, subsequent to the partiesþ

stipulation, this Court decided Sacco v. High Country Independent

Press (1995), 271 Mont. 209, 896 P.2d 411, wherein we re-defined

and clarified the elements of the torts of negligent and

intentional infliction of emotional distress.

 The plaintiff in Sacco had been employed at the High Country

Independent Press newspaper in Belgrade as a photographer/reporter. 

After she left the newspaper's employ, officers of High Country

Independent Press, Inc. (HCIP), the corporation that owned the

newspaper, made allegations to the Belgrade Police that the

plaintiff had stolen proof sheets and photographs from the

newspaperþs offices. Criminal charges were brought against the

plaintiff but were eventually dismissed. The plaintiff brought an

action against HCIP and a Belgrade police officer for civil rights

violation, malicious prosecution, defamation and intentional and

negligent infliction of emotional distress. 

 We held in Sacco that an independent cause of action for

negligent infliction of emotional distress will arise under

circumstances where serious or severe emotional distress to the

plaintiff was the reasonably foreseeable consequence of the

defendant's negligent act or omission. Sacco, 896 P.2d at 426. We

also concluded that "serious or severe emotional distress" should

be defined by employing the definition of these terms found in the

Restatement (Second) of Torts, which provides in pertinent part:

 [Emotional distress] includes all highly unpleasant

 mental reactions, such as fright, horror, grief, shame,

 humiliation, embarrassment, anger, chagrin,

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 disappointment, worry and nausea. It is only where it is

 extreme that the liability arises. Complete emotional

 tranquility is seldom attainable in this world, and some

 degree of transient and trivial emotional distress is a

 part of the price of living among people. The law

 intervenes only where the distress inflicted is so severe

 that no reasonable [person] could be expected to endure

 it. The intensity and the duration of the distress are

 factors to be considered in determining its severity. 

 Severe distress must be proved. . . . 

Sacco, 896 P.2d at 426 (quoting Restatement (Second) of Torts, 

46, comment j at 77-78). 

 In granting Carolyn's Motion for Summary Judgment, the

District Court relied on our decision in Sacco. State Farm

contends that this was error because although Carolyn witnessed the

accident, she did not sustain any bodily injury, thus she was a

"bystander" victim as defined in Versland. State Farm maintains

that since the policy provides bodily-injury liability coverage for

damages the insured is legally liable to pay because of bodily

injury to one person in an accident, including all injury and

damages to others as a result of that bodily injury, Carolyn is

subject to the $25,000 per person limit applicable to Fredie's

claim because Carolyn's emotional distress resulted from Fredie's

injury. State Farm also argues that Carolyn's claim should be

treated the same as a claim for loss of consortium and that our

prior decision in Bain v. Gleason (1986), 223 Mont. 442, 726 P.2d

1153, is controlling in this situation. 

 We disagree; neither Versland nor Bain is controlling under

the facts here given our decision in Sacco. In Sacco it was our

intention to simplify and clarify the elements of claims for

negligent and intentional infliction of emotional distress, not to

further complicate this body of law by adding yet another theory to

those already in existence. See Sacco, 896 P.2d at 429. In view

of State Farm's arguments and in light of Sacco it is appropriate

that we discuss Versland and Bain, however. We had previously said

in Versland that to recover on a claim for negligent infliction of

emotional distress, the plaintiff must show (1) that the shock

resulted from a direct emotional impact upon the plaintiff from the

sensory and contemporaneous perception of the accident, (2) that

the plaintiff and the victim were closely related, and (3) that the

victim suffered either death or serious physical injury as a result

of the defendant's negligence. Versland, 671 P.2d at 588. Thus

the plaintiff had to be a bystander and actually witness the

accident. 

 However, in clarifying the elements of a claim for negligent

infliction of emotional distress in Sacco, we eliminated the other

various sorts of theories by which independent torts of negligent

infliction of emotional distress came into Montana law such as the

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Versland bystander analysis. Sacco, 896 P.2d at 429. Under the

Versland analysis, a plaintiff's cause of action hinges upon the

death or serious bodily injury of the accident victim. The

plaintiff's claim is derivative. Under the Sacco analysis, a

plaintiff's cause of action requires a showing of severe or serious

emotional distress to the plaintiff. The plaintiff's claim is

independent and non-derivative. Furthermore, even prior to Sacco,

Montana law recognized that where recovery is for emotional

distress absent physical injury, such a claim is allowed as an

independent cause of action. See Johnson v. Supersave Markets,

Inc. (1984), 211 Mont. 465, 473, 686 P.2d 209, 213. 

 State Farm's reliance on Bain is also misplaced. Bain

involved a claim for loss of consortium. The plaintiff in Bain

brought an action to recover for the injuries his wife sustained in

an automobile accident. In Bain, we said that the "Each Person"

limitation refers to all damages imposed by law by whomever

suffered resulting from one bodily injury and one accident and that

the "Each Accident" limitation only applies when two or more

persons suffer bodily injury in the same accident. Bain, 726 P.2d

at 1158. 

 Unlike Carolyn, the plaintiff in Bain was not at the scene of

the accident and did not witness the injuries to his spouse. As

the District Court pointed out in the case before us "[i]t is this

personal, on the scene, direct physical and emotional impact which

distinguishes emotional distress claims under Sacco from loss of

consortium claims. . . ." Carolyn was a separate person who

received an independent and direct injury at the accident scene. 

Her serious and severe emotional distress was the reasonably

foreseeable consequence of Hintz's negligence. Sacco, 896 P.2d at

426. 

 State Farm further argues that emotional distress is not a

bodily injury, therefore Carolyn cannot be considered a second

party injured under the policy. We note that while the State Farm

policy does not define bodily injury, per se, it does allow

recovery for various injuries including loss of consortium which is

not a physical injury. Moreover, State Farm is willing to provide

coverage for emotional injuries resulting from the decedent's

physical injury, but only subject to the one person limitation. 

Under the circumstances, State Farm is estopped from arguing that

there is no coverage for emotional or mental injuries. Clearly,

State Farm is willing to provide coverage for those types of

injuries.

 Accordingly, we hold that Carolyn was a second injured person

in the accident, thus the "Each Accident" limits in the policy

apply, and we affirm the judgment of the District Court.

 Affirmed.

 /S/ JAMES C. NELSON

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We Concur:

/S/ J. A. TURNAGE

/S/ CHARLES E. ERDMANN 

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER

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