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Bernard v. Cordle12/3/1996
PETREE, Presiding Judge.
This matter is before this court upon the appeal of plaintiffs, Judith A. and Ted Bernard, from the February 14, 1996 decision and March 16, 1996 entry, and asadditional judgment entry filed April 8, 1996 of the Franklin County Court of Common Pleas, which entered summary judgment in favor of intervening plaintiff, Erie Insurance Company, and defendant, Florence E. Cordle, respectively.
The history of this case is as follows: On September 5, 1994, plaintiff Judith Bernard was injured in an accident when her motorcycle was struck by defendant Cordle. Judith's husband, Ted, was also riding a motorcycle and was directly behind Judith at the time of the accident. He witnessed the accident and further witnessed the amputation of Judith's leg at the scene of the crash.
Plaintiffs brought an action against defendant, seeking compensatory damages for the injury to Judith and damages for negligent infliction of emotional distress allegedly sustained by Ted Bernard. Defendant's insurer, Erie Insurance Company ("Erie Insurance"), offered plaintiffs $60,000 in exchange for a complete release. Plaintiffs accepted this $60,000 in exchange for such a release, with the exception of Ted Bernard's claim for negligent infliction of emotional distress.
Erie Insurance then brought a declaratory judgment action to determine whether or not Ted Bernard could recover for his claim of emotional distress pursuant to the language contained in the policy that Erie Insurance had with defendant. All of the parties moved for summary judgment. By journal entry of March 16, 1996, the trial court granted summary judgment in favor of Erie Insurance, finding that the claim for emotional distress was derivative, and, therefore, under the language of the policy, plaintiffs had already received the maximum dollar amount available to them. The court also held that emotional distress did not constitute "bodily injury" as that was defined in the policy.
On April 8, 1996, the trial court granted summary judgment in favor of defendant, finding that Ted Bernard did not have an independent cause of action against defendant for negligent infliction of emotional distress, "as such claim is clearly derivative."
Plaintiffs filed this appeal and assert the following assignments of error for our review:
"[I.] The lower court committed reversible error in granting summary judgment holding that defendant-appellant Ted Bernard does not have a separate, independent, and distinct claim for relief for negligent infliction of emotional distress.
"[II.] The lower court committed reversible error in granting summary judgment holding that the subject Erie Insurance Company policy does not provide coverage for the negligent infliction of emotional distress claim of defendant-appellant Ted Bernard."
Plaintiffs have also presented the following issues for our review:
"[I.] Whether a claim for negligent infliction of emotional distress is a separate, distinct, and independent cause of action or whether it is merely derivative of a personal injury or death claim. (Assignment of Error Number One.)
"[II.] Whether a claim for negligent infliction of emotional distress is a claim for a separate bodily injury. (Assignment of Error Number Two.)
"[III.] Whether separate claims for personal injury and negligent infliction of emotional distress may be consolidated and restricted to a single per person limit of coverage under a liability policy. (Assignment of Error Number Two.)"
In the first assignment of error, plaintiffs argue that the trial court erred in ho
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