Fran Smith, et al. Plaintiff–Appellee v. Robert Thomas, Cheryl Huey, State Farm Mutual Automobile Insurance Company, et al. Defendant–Appellant

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Fran Smith, et al. Plaintiff–Appellee v. Robert Thomas, Cheryl Huey, State Farm Mutual Automobile Insurance Company, et al. Defendant–Appellant

No. 51,093–CA

Decided: January 25, 2017

Before BROWN, DREW and GARRETT, JJ. K. DOUGLAS WHEELER Counsel for Appellant Robert Thomas DAVENPORT, FILES & KELLY, L.L.P. By:  M. Shane Craighead Counsel for Appellant State Farm Mutual Automobile Insurance Co. BREITHAUPT, DUNN, DUBOS, SHAFTO & WOLLESON, LLC By:  R. Alan Breithaupt, James R. Close, Counsel for Appellees, Kelise Smith, Fran Smith and Troy Smith HUDSON, POTTS & BERNSTEIN By:  Jay P. Adams, Sara G. White, Counsel for Appellee, Direct General Insurance Co.

 After a 2012 auto-pedestrian accident, the plaintiffs brought this lawsuit seeking damages for personal injuries, including Lejeune 1 damages, against the defendants. After various settlements and dismissals, the case went to a bench trial, where the remaining issues were the fault of the driver, whether Lejeune damages were proven, and the primary insurer's responsibility for the Lejeune damages. The trial court found the driver to be solely at fault for the accident and that the bystander suffered Lejeune damages, and concluded that the driver's insurer had to pay the Lejeune damages. The driver and insurer appeal;  we affirm.

FACTS

Just after 7:00 p.m. on February 19, 2012, Fran Smith and her 14-year-old daughter Kelise were walking home from church southbound along the west side of University Avenue in Monroe. This two-lane road does not have a sidewalk or a paved shoulder;  instead, the area beyond the edge of the paved road is a mixture of gravel and grass. The grassy shoulder is sloped downward from the road toward a drainage culvert. The Smiths, who had walked along this road many times before, were walking single file with Kelise in front of Fran, but they were close enough to each other to carry on a conversation. Because they were on the west side of the road, the traffic nearest them approached them from behind. This area is unlit by streetlights.

Robert Thomas, driving a 2000 Toyota Camry, was driving southbound on University Avenue at the same time. When he reached the  Smiths, the right side of the Camry struck Fran Smith, throwing her into the ditch and knocking her briefly unconscious. Kelise ran to her mother's side and observed that she was not responsive and appeared to be foaming at the mouth.

In the meantime, Thomas stopped his car on the other side of the road. Kelise approached Thomas and screamed and cursed at him, believing that he had killed her mother.

Police and EMS responded to the scene. Smith had regained consciousness and had serious cuts on her head and hand;  she spent at least one night in the hospital.

Monroe PD Officer James Varnell investigated the accident and spoke with the parties. His report 2 states, in part:

[Mr. Thomas] stated he was southbound on University when [Fran Smith] suddenly appeared walking southbound on the edge of the roadway. Driver stated he then struck the pedestrian. I then spoke with the pedestrian's daughter, Kelise Smith, who stated she and her mother Fran Smith were walking southbound on University on the right hand side of the road when Fran was struck from the rear by vehicle 1. Kelise added that Fran was thrown into the air and she landed approximately 20 feet from the impact site.

The officer did not issue either party a citation as a result of the crash.

In February 2013, Fran Smith and her husband, Troy, filed suit individually and on behalf of the then-minor Kelise, against:

• Robert Thomas, the driver;

• Cheryl Huey, the owner of the Camry;

• State Farm Mutual Automobile Insurance Company (“State Farm”), the liability insurer for the Camry;

• Direct General Insurance Agency, with whom the Smiths had a liability policy with UM coverage;  and

 • Financial Indemnity Company, with whom the Smiths also had a liability policy with UM coverage.

Their petition alleged that Fran and Kelise were walking on the shoulder and the accident occurred when Thomas veered off of the road onto the shoulder and hit Fran. In its answer, State Farm denied that the ladies were walking on the shoulder and asserted that they were walking on the roadway.

In March 2014, the plaintiffs settled their claim against Thomas, Huey, and State Farm, reserving Kelise's Lejeune claim against these defendants.3 Thomas' policy with State Farm had 15/30 limits, and State Farm paid the plaintiffs $15,000. Thereafter, State Farm sought summary judgment on Kelise's Lejeune claim. The insurer did not argue that its policy provided no coverage for Lejeune claims. Instead, the insurer urged that the settlement payment of $15,000 had exhausted the “per person” limit of Thomas' policy and Kelise's Lejeune claim did not trigger the remaining “per accident” limit because she suffered no physical injury during the crash. State Farm relied on the language of its policy, which provides:

The limit shown under “Each Person” is the most we will pay for all damages resulting from bodily injury to any one person injured in any one accident, including all damages sustained by other persons as a result of that bodily injury. The limit shown under “Each Accident” is the most we will pay, subject to the limit for “Each Person”, for all damages resulting from bodily injury to two or more persons injured in the same accident.

[Bodily injury is] physical bodily injury to a person and sickness, disease, or death that results from it.

Emphasis in original.

 State Farm argued that Kelise's Lejeune claim was not the result of “physical” bodily injury because Thomas' car did not strike Kelise in the accident. In opposition, plaintiffs urged that material facts remained in dispute and the Lejeune claim was a direct result of the accident and not derivative of another's claim, so jurisprudence on derivative claims limiting per accident recovery was inapplicable. That motion was heard and denied by the trial court in August 2014, and this Court denied writs.4

The case went to trial in October 2015;  there were four live witnesses:  Troy, Fran and Kelise Smith, and Robert Thomas.

Robert Thomas testified:

• He was driving the 2000 Toyota Camry southbound on University Avenue on the night of the crash;

• There were two vehicles in front of him. The first was driven by his sister-in-law, who was now deceased, and the second was a work truck driven by an unknown person;

• He was following the work truck closely, approximately a car length behind it, driving in the middle of the lane, going about 20 mph;

• He was familiar with the road and drives it routinely because he lives nearby;

• He had seen pedestrians in the area before as there was a city bus stop nearby, and his wife had previously walked on the shoulder of University Avenue to get to the college;

• It was dark, but not pitch dark, at the time of the accident, but there were no street lights;

• He did not see Fran Smith before hitting her, and initially after hearing the sound of the impact, he did not know that his car had hit a person;

• The work truck in front of him did not have to swerve to miss Fran Smith, nor did the car driven by his sister-in-law;

 • He did not swerve, run off of the road, or cross the white fog line before hitting Fran Smith;

• Two parts of the Camry hit Fran Smith:  the right front and the passenger side mirror, and the impact broke the blinker lens and the right side mirror off of the car;

• After the crash, Fran Smith was lying in a ditch just south of a driveway;

• Fran was wearing grey and black clothing;

• After he stopped his car, Kelise came over to him, screaming and cursing at him saying that he had killed her mother;

• He told the investigating officer that he never saw Fran Smith before hitting her;  and

• He believed that the impact happened while Fran and Kelise were standing on the driveway near where Fran was thrown, but he did not run off the road onto the driveway.

Troy Smith testified:

• He is Fran Smith's husband;

• At the time of the accident, they lived on University Avenue, and he was at home;

• He became aware of the accident when Kelise called him, and he said that Kelise was “screaming” and “frantic,” so he drove to the scene;

• He beat the paramedics to the scene, where he saw Fran lying on her back, semiconscious, “foaming and just mumbling a little bit,” and Kelise was “crying,” “hysterical” and “all over the place”;

• Fran was on the driveway, not in the ditch;

• During the ride to the hospital, Kelise continued to cry, was “praying and just upset,” and Fran spent at least two nights in the hospital;

• Kelise missed one or two days of school because of the accident, and continued to make As and Bs, but quit the dance team because of the accident;

 • After the accident, Kelise “wasn't herself,” and “just wanted to be alone or with Fran” instead of her friends, so Troy asked his brother-in-law, Reverend Alonzo Clark, to counsel Kelise;

• The family did not send Kelise for professional counseling because “I really didn't understand it” and because they did not have the finances to do that;

• Kelise “didn't really want to talk” about the accident and didn't tell him any details, and she would just “shut down”;  and

• About six months after the accident, the family moved to Texas for work, and Kelise was continuing to have problems related to the accident.

Fran Smith testified:

• At the time of the accident, the family lived on University Avenue;

• She had no recollection of the actual impact;

• Prior to the accident, she and Kelise had been at church and were hurrying home so she could go for a walk before it became dark;

• Kelise was walking in front of her to the right of University Avenue;

• They were never at any time walking “in the lane of traffic or in the roadway,” because “when Kelise and I started out, I said ‘make sure you get on the side.’ And she say, ‘you always say that, mama.’ And we laughed about it, you know”;

• Although there are no shoulders beside University Avenue, “there is room to walk off where we walk. There is room to walk off of the road on the dirt, on the grass”;

• She was wearing a grey sweater, black sweat pants, and black shoes with orange reflectors;

• She didn't recall how long she spent in the hospital, and said that Kelise missed one day of school;

• After the accident, Kelise became “distant” and “[s]he wasn't sparkle. She ․ wanted to be by herself in her room. She didn't want to be active. Kelise was always active in school. She was getting the—her eighth grade year was getting ready to be over with and we had already discussed her going to try out  for cheerleader when she entered into the ninth grade. She didn't want to do any—any of that anymore.” ․ “[S]he just wasn't my Kelise. She was just shutting down, and I could see it. I knew that the experience of her seeing me being hit by a car was devastating to her. But I just—I thought that that—you know, it was going to take time. But she didn't even want to discuss to me my—the state I was in when I was hit by the car”;

• Kelise would cry and sob around Fran but didn't want to talk about the incident, and Kelise began to have bad dreams that led her to have her mother sleep in the room with her, and that these incidents still continued, “even now,” though Kelise was now 18;

• Kelise “didn't want anything to do with her friends” after the accident;

• Kelise maintained her A and B average grades, but did not want to participate in the school dance team the year after the accident;  and

• Kelise did not see a medical professional about her issues but was counseled by the associate pastor at their church and the school counselor at her high school was made aware of the issue.

Kelise Smith testified:

• She was 14 at the time of the accident;

• She was walking in front of her mother “on the gravel” on the side of University Avenue;

• They had walked on this road on multiple occasions before. Kelise said that a recent picture 5 of the area taken in 2015 did not accurately depict the shoulder of the road as it was in 2012 because in the recent photo, “the right side of the fog line, it's like—it's not as much—it's gone, like the grass and all that, it's gone more. In 2012, it was more room to walk, more grass and gravel”;

• Her mother was behind her but within arm's reach, and they were talking as they walked, and Kelise was looking forward, not toward her mother;

 • She was walking off of the roadway, on the opposite side of the white fog line, and was sure that her mother was also because “she always walked on the gravel and the grass”;

• Describing the accident:  “Well, there was a car and it was—it came out of nowhere. And it was like somebody had jumped out of the window. And I had turned around to grab my mom and she wasn't there, so I figured like that must have been my mom, like, getting hit. So I ran to the person that was laying on the ground. And that's when I knew it was my mom”;

• She could not say that Thomas veered off of the road at the time of the crash because she was not looking backward;

• When Kelise went to her mother, Fran “was unconscious and she was ․ foaming at the mouth. And she was shaking. And I was trying to calm her down and like wake her up and she wasn't coming to.” “She had a big gash on the top of her head. And she had a scar on her hand. It was a bad cut. And she was bleeding”;

• Kelise initially thought that her mother was dead;

• She screamed and cursed at Thomas, something she had never done before, because she thought he had killed her mother, but later apologized after Fran regained consciousness;

• She missed only one day of school, and maintained her A and B average, but started having trouble sleeping and began to have nightmares;

• She spoke with her uncle Alonzo Clark, an associate pastor, about her issues, and did so “every day of the week” until the family moved to Texas in August 2012, and thereafter spoke with him by phone and in person on weekend trips;

• Since the accident, she had become more quiet and distant, she had become more protective of her mother, and she exercised only on a track, not on the street;

• Her nightmares were only occasional at the time of trial;  and

• She decided not to participate in the school drill team during her freshman year of high school partly because of her mother's accident.

The court took the case under advisement, and on January 6, 2016, issued reasons for judgment, finding that the plaintiffs had proven that  Robert Thomas was solely at fault for the accident, that Kelise had suffered damages compensable under La. C.C. art. 2315.6, and that Kelise was entitled to recover $12,000 under a second “per person” limit, i.e., the “per accident” limit, of the State Farm policy. Rather than repeat the judge's reasons, we have attached a copy of those reasons to this opinion for the reader's use.

In response to a judgment rendered in conformity with the reasons, State Farm filed a timely motion for new trial, arguing that the trial judge erred in concluding that Kelise's damages could be paid from the State Farm policy because the damages were not derivative of her mother's injuries. The trial court held a hearing on the motion and heard extensive argument, but ultimately concluded that its ruling was not solely constrained by the “derivative” determination and maintained that the per-accident limit of State Farm's policy applied to Kelise's damages. Thereafter, State Farm and Robert Thomas took suspensive appeals.

DISCUSSION

Robert Thomas' Assignment of Error 1. The District Court committed manifest error by erroneously finding that Robert Thomas was solely at fault in causing the subject accident.

Thomas' first assignment of error challenges the trial court's conclusion that he was solely at fault for the accident. He argues that all of the fault should be allocated to Fran Smith, or at least the overwhelming majority of it.

In Endsley v. Pennington, 31,027, (La. App. 2d Cir. 9/29/98), 718 So.2d 650, this Court explained:

When a motor vehicle strikes a pedestrian, the case is properly governed by comparative fault principles. LSA–C.C. art. 2323;  Hundley v. Harper Truck Line, 28,613 (La.App. 2 Cir. 9/25/96), 681 So.2d 46. Several factors are considered in comparing the relative fault of the parties, including:  (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, either superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967 (La.1985).

An appellate court may not set aside a jury's finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La. 1993). Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Stobart, supra. The allocation of fault is also a factual determination subject to the manifest error rule. Hundley, supra.

After a careful review of the entire record, including the police report, testimony of the witnesses, and the various photographs introduced into evidence, we detect no manifest error in the trial court's allocation of fault. The trial court's determination of fault was based in part upon a credibility determination. The judge noted:

• Thomas evidently told the police officer that Fran was walking in the road, but he testified at trial that he did not see Fran before hitting her,

• Thomas testified that he was traveling one car length behind the work truck in front of him, but this truck neither hit Fran nor had to swerve to avoid hitting her, so Thomas had to have been driving to the right of the path of the truck.

Defendant makes much of the testimony of Fran and Kelise that neither of them saw Thomas driving erratically or cross over the fog line, but both of these witnesses also testified that they were walking on the thin strip of grass and gravel beside, not on, University Avenue. This was a path that both had walked on many times before, and both testified about their usual care in keeping to the path and not walking on the road. For that  reason, we find La. R.S. 32:216(B)6 essentially inapplicable, as we find no manifest error the trial court's decision to credit Fran and Kelise's testimony that they were “walking on the grass and gravel on the side of the road” or on a driveway that intersected the road, not on the road surface.

Although the investigating officer found no evidence that Thomas had run off the road, we also note that there are no contemporaneous photos of the accident scene and, indeed, the location of the accident itself was somewhat contested. Given the testimony of the persons who were at the scene, including that of Thomas who said he did not know where Fran was when he hit her, we find no error in the trial court's choice not to credit the officer's conclusion that Fran was in the road at the time of the crash.

Robert Thomas' Assignment of Error 2. The District Court committed manifest error by erroneously finding that Appellee carried her burden of proof to show that she suffered severe and disabling mental and / or emotional anguish as a result of the subject accident.

State Farm Assignment of Error 2. The District Court committed manifest error by erroneously concluding Appellee carried her burden of proof to show she suffered “severe, debilitating” mental anguish and / or emotional distress as a result of the subject accident.

Both Thomas and State Farm contend that the trial court's award of Lejeune damages to Kelise was an error because, they assert, Kelise failed to prove that her injuries were severe and debilitating under La. C.C. art. 2315.6, which provides, in part:

B. To recover for mental anguish or emotional distress under this Article, the injured person must suffer such harm that one can reasonably expect a person in the claimant's position to suffer serious mental anguish or emotional distress from the experience, and the claimant's mental anguish or emotional distress must be severe, debilitating, and foreseeable.

 The appellants cite the following evidence in support of their assignments of error:

• Kelise saw her mother unconscious for only a minute;

• Kelise missed only one day of school;

• Kelise did not seek professional/medical treatment or therapy but only received counseling from her uncle;

• Kelise maintained an A and B average at school and passed the LEAP test;

• She missed one year of dance line at school, which was partly due to her move;  and

• She planned to attend college in the future.

For all of these reasons, the appellants argue that the trial court was manifestly erroneous in finding that Kelise's injury was compensable.

The trial court readily concluded that Kelise's injuries were foreseeable and severe, but in determining whether Kelise was debilitated, the judge was mindful of these facts, stating:

• She missed only one day of school, and maintained her A and B average;

• She stopped dancing in the school dance line, but this was not solely due to the accident;

• She had bad dreams every night for a while after the accident and sometimes had to sleep with her mother or older sister;

• She continued to fear that her mother might die and is more protective of her now;

• Kelise said that this was the most traumatic event of her life;

• Kelise did not attend counseling with a professional but instead talked with Rev. Clark for a number of months;  and

• Credible testimony showed that Kelise was “not the same,” was more reserved, did not want to be active, wanted to stay in her room, and became more distant.

 Based on all of these factors and hearing the testimony of the witnesses, the judge concluded that Kelise's injuries were debilitating. Although we recognize that the objective criteria of good school attendance and good grades tend to discount the debilitating nature of this incident, we nevertheless find no error in the trial court's conclusion. Both Kelise's mother and father reported that after the accident, Kelise was simply “not the same” joyful child that she had previously been;  they said that she wanted to stay in her room and not interact with friends or others, and that she continued to have nightmares for years after the event. Kelise's ability to maintain good grades in school goes more to the extent of the debilitating injury rather than its existence. The evidence shows that she was able to overcome some of the injury caused by the event but does not disprove the debilitating effect of the incident. The trial court took all of these things into consideration as well when making the not overly large $12,000 award of damages for Kelise.

State Farm Assignment of Error 1. The District Court committed legal error in concluding a separate “per person” bodily injury coverage limit applied to the emotional distress / mental anguish claims asserted by Appellee, Kelise Smith.

State Farm's other contention in this appeal is that Kelise's Lejeune damages did not trigger the additional per person limit in Thomas' policy. In other words, the insurer is contending that the policy's language limited the Smiths to a single “per person” limit because Kelise did not suffer “physical” injury in the accident, and because State Farm has already paid the Smiths the $15,000 per person limit, the additional $15,000 per accident limit is not available to them.

As noted above, the State Farm policy in this case provides:

 The limit shown under “Each Person” is the most we will pay for all damages resulting from bodily injury to any one person injured in any one accident, including all damages sustained by other persons as a result of that bodily injury. The limit shown under “Each Accident” is the most we will pay, subject to the limit for “Each Person”, for all damages resulting from bodily injury to two or more persons injured in the same accident.

[Bodily injury is] physical bodily injury to a person and sickness, disease, or death that results from it.

The insurer contends that the trial court misinterpreted this policy and mistakenly relied upon the non-derivative nature of Lejeune injuries to extend the State Farm policy beyond its terms. We note that this is a question of law, so this Court's review of the trial court's ruling is de novo.

An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. Louisiana Ins. Guar. Ass'n. v. Interstate Fire & Cas. Co., 93–0911 (La. 1/14/94), 630 So.2d 759, 763. If the words of the policy are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent and the agreement must be enforced as written. Smith v. Matthews, 611 So.2d 1377, 1379 (La. 1993). An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. LIGA, supra, at 763. If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer who issued the policy and in favor of the insured. Id. at 764.

Several reported cases have considered related questions. In Crabtree v. State Farm Ins. Co., 93–0509 (La. 2/28/94), 632 So.2d 736, the Supreme  Court considered whether, under the terms of the policy at issue there, a Lejeune claim amounted to bodily injury as defined. In that case, Mr. Crabtree was riding a motorcycle in front of a car driven by his wife;  an oncoming car crashed into Mr. Crabtree, seriously injuring him. Although Mrs. Crabtree was not involved in the impact, she witnessed the accident and the terrible injury to her husband and suffered Lejeune damages. State Farm, which insured the oncoming at-fault motorist, paid the Crabtrees $25,000 under the 25/50 policy. However, State Farm argued that its policy did not allow Mrs. Crabtree a separate recovery under the $50,000 aggregate limit for her Lejeune damages. In Crabtree, the policy specified:

The amount of bodily injury liability 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 [$25,000] 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 [$50,000], subject to the amount shown under “Each Person”, for all damages due to bodily injury to two or more persons in the same accident.

The Supreme Court also explained:

The policy defines “bodily injury” as “bodily injury to a person and sickness, disease or death which results from it.”

Although the trial court and the court of appeal concluded that Mrs. Crabtree was not entitled to recover under the aggregate limit, the Supreme Court disagreed, stating:

To determine the amount of State Farm's liability, we must interpret the insurance policy to decide three issues:  (1) whether the policy language defining “bodily injury to one person” to include “all injury and damages to others resulting from this bodily injury” encompasses Mrs. Crabtree's mental anguish;  (2) whether Mrs. Crabtree's mental anguish constitutes “bodily injury” as defined in the policy;  and (3) whether Mrs. Crabtree suffered her mental anguish “in the same accident” as that which caused Mr. Crabtree's bodily injuries. If “bodily injury to one person” encompasses Mrs. Crabtree's mental anguish, then State Farm's liability is limited to the $25,000 policy  limit for “all damages due to bodily injury to one person.” If not, and if Mrs. Crabtree's mental anguish constitutes “bodily injury” suffered “in the same accident,” then State Farm is liable under the $50,000 aggregate policy limit for “all damages due to bodily injury to two or more persons in the same accident.”

The Court decided that the second inquiry answered the first:

As illustrated by the foregoing hypotheticals, State Farm's construction of the policy language defining “bodily injury to one person” strains the meaning of the policy language, respectively enlarges and restricts the separate policy provisions beyond what is reasonably contemplated by the terms, and achieves an absurd result. If State Farm had intended “bodily injury to one person” to include” all injury, including bodily injury, and damages to others resulting from this bodily injury,” the policy would have so provided. Moreover, State Farm's interpretation construes the “resulting from” clause in isolation at the expense of disregarding the clear and explicit language defining the aggregate coverage for “Each Accident” as “all damages due to bodily injury to two or more persons in the same accident.”

Emphasis added. The Court further concluded that Mrs. Crabtree's Lejeune damages amounted to bodily injury under the policy definition:

The definition is ambiguous in at least two respects. First, the definition is circular in that the term being defined is used within its own definition:  “Bodily injury is bodily injury to a person, and sickness, disease or death which results from it.” Secondly, if the definition was intended to cover only external, physical injuries, then “bodily injury” easily could have been defined in a more restrictive fashion through the use of such words.

Moreover, interpretation of the term “bodily injury” to include Lejeune damages is consistent with the jurisprudence of this court. In Lejeune, 556 So.2d at 570, we made it clear that in order to be compensable, mental pain and anguish suffered because of injury to a third person must be “both severe and debilitating.” We pointed out that “[o]ther states have recognized that [t]he essence of the tort is the shock caused by the perception of the especially horrendous event.” Id. at 570 [ (internal citations omitted) ]. Additionally, although not having to do with the interpretation of a policy definition, it is nonetheless instructive to note that in Sparks v. Tulane Medical Center Hospital & Clinic, 546 So.2d 138, 146 (La. 1989), we interpreted the phrase “physical structure of the body” as it is used in the Worker's Compensation Act to include injuries to the mental health of an employee.

 Notably, the policy in Crabtree defined “bodily injury” without the additional modifier of “physical bodily injury” that is used in the policy in this case.

In Hill v. Shelter Mutual Ins. Co., 2005–1783 (La. 7/10/06), 935 So.2d 691, the court addressed a similar issue. Mr. Donald Cannon was a guest passenger in a car driven by his wife. The car was involved in an accident, and Mr. Cannon was killed. The car was insured by Shelter Mutual. Three of Mr. Cannon's children sued Cannon's wife and Shelter. These were wrongful death claims, not Lejeune claims. The insurer argued that the children's recovery was limited by the per person, not the per accident, limit of the Shelter policy, which defined “bodily injury” using the same language that the policy in Crabtree used.

The trial court in Hill allowed the plaintiffs to recover under the per accident limit of the Shelter policy, but the court of appeal reversed, limiting their recovery to the per person limit. The Supreme Court reversed the court of appeal and allowed plaintiffs a potential recovery under the per accident limit, stating, among other things:

The Shelter policy at issue defines bodily injury using the same language as did the policy at issue in Crabtree, and, as we previously determined in Crabtree, that language is ambiguous and will be construed so as to provide coverage.

Had Shelter desired to limit its liability for “bodily injuries” to others, it could have done so by using the language we recommended in Crabtree:  “Bodily injury” sustained by one person includes all injury, including bodily injury, and damages to others resulting from this bodily injury. Fn.2. Shelter failed to do so.

Fn. 2. We do not imply that this language is the only possible language which would limit liability.

 The Supreme Court ultimately remanded the case for a determination of whether the plaintiffs' injuries were sufficiently severe so they could be considered “bodily injury” within the meaning of the policy.

In Hebert v. Webre, 2008–0060 (La. 5/21/08), 982 So.2d 770, the Supreme Court considered a similar issue in a survival action/wrongful death case. After Christopher Hebert was killed in a car crash, his widow 7 filed suit against, among others, the Heberts' UM carrier, State Farm. The Heberts had a 100/300 policy with UM coverage, and State Farm paid $100,000 to the Heberts. The insurer argued that it was not obligated to pay more than the single “per person” limit of the policy because of the policy language limiting the applicability of the “per accident” limit. The trial court and the court of appeal agreed with the plaintiffs, but the Supreme Court granted writs and reversed, finding that the language limited the plaintiffs to one “per person” recovery. The State Farm UM policy provided the conditions under which payment will be made under the UM portion of the policy:

We will pay nonpunitive damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be sustained by an insured and caused by accident arising out of the operation, maintenance, or use of an uninsured motor vehicle.

The policy defined “bodily injury” as:

[P]hysical bodily injury to a person and sickness, disease or death which results from it.

Finally, the policy explained the distinction between the “each person” limit and the “each accident” limit:

 Limits of Liability Under Coverage U

The amount of coverage is shown on the declarations page under “Limits of Liability—U—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, and all emotional distress resulting from this bodily injury sustained by other persons who do not sustain 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 accident.

The Supreme Court closely examined the policy language in Crabtree and Hill, supra, and found notable differences:

• In the earlier cases, “bodily injury” was defined as “bodily injury to a person and sickness, disease and death which results from it” whereas the policy in Hebert defined the term as “physical bodily injury to a person and sickness, disease or death which results from it” (emphasis added),

• In Crabtree and Hill, “bodily injury to one person” was defined to include “all injury and damages to others resulting from this bodily injury.” The Hebert State Farm policy defined “bodily injury to one person” to include “all injury and damages to others resulting from this bodily injury, and all emotional distress resulting from this bodily injury sustained by other persons who do not sustain bodily injury” (Emphasis added).

Hebert, like Hill, was a wrongful death/survival action case, not a Lejeune case. As the Court stated:

As we explained in Hill, the type of injuries suffered by a wrongful death plaintiff are emotional distress type injuries. In addition, under the terms of this policy, even if “bodily injury” could be interpreted to include emotional distress which manifests itself physically, the policy includes “all emotional distress damages” in the “Each Person” limit, not just ones that do not manifest themselves physically or do not rise to the level of severe and debilitating. Further, in a wrongful death action, the plaintiffs who suffer this emotional distress are “other persons who do not sustain bodily injury,” because a “bodily injury” under this policy is a “physical bodily injury,” which does not include emotional distress.

 The Court explained another difference between Crabtree and the later cases:

Finally, another distinction from Crabtree is found not in the policy language, but in the particular facts of that case. Under both the policy in Crabtree and in this case, in order for the for the “Each Accident” aggregate limit to apply, two or more persons must suffer bodily injury “in the same accident.” The wife in Crabtree was found to have suffered bodily injury “in the same accident” with her husband because she actually witnessed her husband being “violently struck and severely injured by an oncoming car.” 632 So.2d at 745. Here, Hebert's wife and children did not suffer bodily injury “in the same accident” with him as they were not in the car, nor anywhere near the accident.

Considering the similarities and differences between the policy language and the nature of the claims in Crabtree, Hebert, and the instant case, we conclude that the “each accident” limit, rather than the “each person” limit, in the State Farm policy in the instant case applies to cover this loss. Although the policy in this case does define “bodily injury” as “physical bodily injury” as did the policy in Hebert, the decision in Hebert did not rest solely upon that language and we do not believe that the Supreme Court meant for that language alone to control. This is a Lejeune case, not a wrongful death or survival action case. As explained in Crabtree, “interpretation of the term ‘bodily injury’ to include Lejeune damages is reasonable and consistent with the jurisprudence of this court.” Although the Hebert decision said “even if ‘bodily injury’ could be interpreted to include emotional distress which manifests itself physically,” the court did not go so far as to reverse Crabtree and that case's recognition that Louisiana has a long jurisprudential history of treating Lejeune damages as bodily injury.

Further, the policy in Hebert expressly stated in the “each person” limit description that “all emotional distress damages” were included within  that limit, not the “each accident” limit. That language is conspicuously absent in the “each person” limit applicable in this case. Although we believe that Lejeune damages are more akin to “bodily injury” than “emotional distress damages,” we nevertheless find the omission of “emotional distress damages” to create additional ambiguity in the terms of the policy.

Lastly, as happened in Crabtree and not in Hebert, Kelise suffered her damages “in the same accident” that injured her mother. Again, the policy in this case states in part:

The limit shown under “Each Accident” is the most we will pay, subject to the limit for “Each Person”, for all damages resulting from bodily injury to two or more persons injured in the same accident.

Emphasis added. Thus the “each accident” limit could not have applied in Hebert, as the Supreme Court recognized when it noted that Mr. Hebert's children were not in the car or anywhere near the accident. That is not the case here;  Kelise was walking approximately an arm's length in front of her mother when Fran was struck by the car. Kelise was plainly injured “in the same accident” as Fran.

DECREE

For all of these reasons, we affirm the judgment of the district court in its entirety. Costs of this appeal are assessed equally to each appellant.

AFFIRMED.

FOOTNOTES

1.   Lejeune v. Rayne Branch Hosp., 556 So.2d 559 (La. 1990). See also La. C.C. 2315.6.

2.   Officer Varnell did not testify at trial;  his report of the incident was entered into evidence upon the joint stipulation of the parties.

3.   In July 2014, Fran and Troy Smith also dismissed their claims against Financial and Direct General but reserved Kelise's claims against those defendants. In August 2014, all plaintiffs dismissed their claims against Cheryl Huey.

4.   The writ denial has no precedential value for this appeal.

5.   The court had the benefit of a number of photos of the scene near the accident depicting the road, the shoulder area, and various manmade features near the accident scene, and the witnesses identified various locations on the photos according to their memory of the event.

6.   B. Where sidewalks are not provided, any pedestrian walking along and upon a highway shall, when practicable, walk only on the left side of the highway or its shoulder, facing traffic which may approach from the opposite direction.

7.   Her suit was filed on behalf of herself, in her capacity as natural tutrix of the couple's three minor children, and as administratrix of her husband's succession.

DREW, J.