This past January, the Pennsylvania Supreme Court took up a question that had been addressed by lower courts in the state over the past few years: Does witnessing a family member’s death fall under an insurance policy’s coverage of “bodily injury to a person and sickness, disease, or death which results from it”? Seventeen-year old Benjamin Lipsky was walking home with his father and two brothers from their synagogue where they had just participated in services for the Jewish holiday of Sukkot when Joseph White struck and killed him.
In this case, the state Supreme Court could not reach a consensus, but let stand a 2011 Superior Court ruling that witnessing such a violent tragedy, even without physical injury to those who saw it, is a “distinct bodily injury covered by an automobile insurance policy,” as explained in The Legal Intelligencer’s Zack Needles. This court opined that State Farm’s policy language was broad enough to cover emotional harm as “bodily injury.” This cause of action, known as negligent infliction of emotional distress (NIED), is a controversial one that has been fought by insurance companies for many years.
In 2011 State Farm argued that Black’s Law Dictionary glosses bodily injury as “physical damage to a person’s body.” However, the then-President Judge of the Superior Court claimed in 2011 that “nothing in the language of the State Farm policy departs from the common-law understanding that the injury contemplated in such a NIED claim results not from the bodily injuries suffered by the accident victim but from the claimant’s witnessing the accident from nearby.” He went on to reject “the notion that bodily harm or physical injury necessitates physical impact.”
Another judge wrote an opinion in agreement, claiming that nowhere in State Farm’s language does it state that the same person must experience both bodily injury and sickness, disease, or death: “Both of these requirements are satisfied […] as Benjamin Lipsky suffered a bodily injury and [his brothers and father] all suffered a disease resulting from that bodily injury.
After the 2011 ruling, State Farm appealed to the Supreme Court, which granted the appeal and heard arguments in 2012 before letting the decision from the lower court stand earlier this year.
Ezra Wohlgelernter of Feldman Shepherd, who along with Tom Martin, represented the Lipsky family, is quoted in a news article saying, “This is a technical win for our client, but we went into this case not just for our clients, but for the citizens of the commonwealth who face the same predicaments as our clients did.”
We are happy to report that State Farm has now agreed to pay all outstanding NIED claims in Pennsylvania that had been placed on hold pending the Lipsky decision. So, what appeared to be a technical victory for one client has now helped State Farm to do what is right and just.
This case is yet another clear example of why we must have open access to our courts to provide justice to all citizens of the Commonwealth of Pennsylvania.
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