ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Mark D. Gerth David W. Craig 

Indianapolis, Indiana Scott A. Faultless 

 Indianapolis, Indiana 

______________________________________________________________________________ 

In the 

Indiana Supreme Court 

_________________________________ 

No. 89S05-0802-CV-102 

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY, 

Appellant (Defendant below),

v. 

D.L.B., A MINOR CHILD BY HIS PARENT

AND NATURAL GUARDIAN, DEANA H. BRAKE, 

Appellee (Plaintiff below). 

_________________________________ 

Appeal from the Wayne Superior Court, No. 89D01-0109-CT-025 

The Honorable P. Thomas Snow, Judge 

_________________________________ 

On Petition to Transfer from the Indiana Court of Appeals, No. 89A05-0512-CV-747 

_________________________________ 

February 28, 2008 

Sullivan, Justice. 

In July 2000, while riding bicycles with his four-year-old cousin, D.L.B., six-year-old 

Seth Baker was struck and killed by a vehicle driven by Herbert Wallace. D.L.B. was not himself physically injured but suffered from Post-Traumatic Stress Disorder as a result of witnessing 

his cousin’s fatal injuries. 

Wallace was insured by State Farm Mutual Automobile Insurance Company. The State 
Farm policy included bodily injury coverage in the amount of $100,000 for “each person” and 

$300,000 for “each accident.” (Appellant’s App. at 26.) State Farm paid $100,000 to Seth’s 

parents to settle claims against Wallace arising out of their son’s death. However, State Farm 

denied a claim brought by D.L.B.’s mother, Deana Brake, on his behalf. 

This litigation ensued. The trial court and Court of Appeals both ruled in favor of D.L.B. 

State Farm Mut. Auto. Ins. Co. v. D.L.B. ex rel Brake, 862 N.E.2d 678 (Ind. Ct. App. 2007). In 

so holding, the Court of Appeals relied in part on its own decision in State Farm Mut. Auto. Ins. 

Co. v. Jakupko, 856 N.E.2d 778, 782 (Ind. Ct. App. 2006). Judge Darden dissented. D.L.B., 862 

N.E.2d at 684. 

We granted transfer in Jakupko and decide that case today by separate opinion. State 

Farm Mut. Auto. Ins. Co. v. Jakupko, --- N.E.2d ---, No. 29S02-0704-CV-140, slip op. (Ind. Feb. 

28, 2008). We grant transfer here today, because like Jakupko, this case requires us to decide 

whether “bodily injury” as defined in the policy at issue in this case1

 includes the emotional distress D.L.B. suffered. 

In Jakupko, we hold that “bodily injury,” as defined in the policy at issue in that case, includes emotional distress. Jakupko, slip op. at 6 (citing Wayne Twp. Bd. of Sch. Comm’rs v. 

Indiana Ins. Co., 650 N.E.2d 1205, 1210 (Ind. Ct. App. 1995), trans. denied). However, we note 

in Jakupko that the term “bodily injury” does not include emotional damage unless it arises from 

 

1

 The insurance policy provisions at issue in this case are the definition of “bodily injury” and the condition of the limits of liability. They read as follows: 

Bodily injury – means bodily injury to a person and sickness, disease or death which results from 

it. 

(App. at 29.) 

The amount of . . . 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 [$100,000] 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 [$300,000], subject to the amount shown under “Each 

Person”, for all damages due to bodily injury to two or more persons in the same accident. 

(App. at 32 (emphasis in original).) 

2
a bodily touching. (Wayne Township found that the “bodily touching . . . inherent to child molestation and the resulting emotional injury suffered by the victim of child molestation is bodily 

injury.”) Jakupko, slip op. at 8 (quoting Wayne Township and citing Armstrong v. Federated 

Mut. Ins. Co., 785 N.E.2d 284 (Ind. Ct. App. 2003)). The Armstrong case is particularly on 

point as it held that the parents of a child killed in an automobile accident could not recover under the uninsured motorist coverage of their insurance policy because they had not “suffered a 

physical impact in the accident that took [their daughter’s] life.” Armstrong, 785 N.E.2d at 293. 

D.L.B. argues that although he did not suffer a direct impact, his emotional distress was 

accompanied by physical manifestations. As Judge Darden observes in his dissent, however, 

these physical manifestations were not the result of an impact, force, or harm to D.L.B.’s body 

and so do not fall with the ambit of Wayne Township; rather, this case is controlled by Armstrong. 

Because D.L.B. did not suffer “bodily injury” within the meaning of the policy, he was 

not entitled to collect damages under Wallace’s State Farm policy. 

The judgment of the trial court is reversed. 

Shepard, C.J., and Boehm, J., concur. Dickson, J., dissents with a separate opinion in which 

Rucker, J., concurs. 

3
Dickson, Justice, dissenting. 

In contrast to State Farm Mut. Auto. Ins. Co. v. Jakupko, --- N.E.2d ---, No. 29S02-0704-

CV-140 (Ind. Feb. 28, 2008), where persons insured asserted first-party claims for coverage under their own automobile insurance policy's underinsured motor vehicle coverage, the present 

action is one for declaratory judgment claiming that an insurance policy's liability coverage extends to a third-party's liability claim against the insured. 

In both cases, however, the insurance policy definition of "bodily injury" ("bodily injury 

to a person and sickness, disease or death which results from it"), Appellant's App'x at 29 (emphasis in original), is identical. The emotional injuries sustained by the insured plaintiffs in both 

cases therefore equally fall within the shared definition that expressly includes "sickness" or 

"disease" resulting from bodily injury to a person. Whether a separate physical impact was sustained is irrelevant to our construction of the policy's own definition of "bodily injury." On this 

issue, D.L.B. should be treated the same as the plaintiffs in Jakupko, and the trial court's denial 

of State Farm's motion for summary judgment should be affirmed. 

I observe, however, that the applicable insuring agreement in the State Farm policy at issue provides liability coverage only for "damages which an insured becomes legally liable to pay 

because of ... bodily injury to others . . . . " Appellant's App'x at 31 (emphasis in original). Under Indiana law, a person may recover on a claim for negligent infliction of emotional distress 

only if the person sustains physical impact. Shuamber v. Henderson, 579 N.E.2d 452, 454 (Ind. 

1991). Here, unlike the plaintiffs in Jakupko, D.L.B. did not personally sustain a physical impact, thus indicating that the alleged tortfeasor, State Farm's insured, would not be "legally liable 

to pay" for D.L.B.'s emotional injury claim. If so, on these grounds, State Farm's liability coverage would appear not to extend to D.L.B.'s emotional injury claims. But the insuring agreement 

language and this reasoning were not presented in State Farm's trial court motion for summary 

judgment or supporting memorandum, nor in its Appellant's Brief in this appeal. Because I prefer not to affirm the summary judgment for State Farm on an issue not raised and on which 

D.L.B. has not had an opportunity to respond, I would reverse the trial court's grant of summary 

judgment for State Farm. 
Rucker, J., concurs. 

2