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First Insurance Co. v. Lawrence9/16/1994
111 N.J. 654, 546 A.2d 562 (1988); Employers Casualty Insurance Co. v. Foust, 29 Cal. App. 3d 382, 105 Cal. Rptr. 505 (1972). We have reviewed these cases and find a common, factually distinguishable thread running through them. In Ramsey, the mother witnessed her daughter being fatally struck in an automobile accident. In Wolfe, the father pulled his daughter from a car where she had been fatally exposed to carbon monoxide and carried her into the home where he and his wife helplessly watched a first aid squad's attempt at revival fail. Finally, in Foust, a mother witnessed the automobile accident where her son was struck and the father learned of his child's severe injuries within ten minutes of the accident.
In all three cases, a family member directly witnessed the accident. Here, none of the Smiths were present at the accident scene and their basis to recover damages is upon the emotional distress they allegedly suffered after Christopher's death. Thus, the Smiths' claims are consequentially related to Christopher's death.
Moreover, in Ramsey and Foust, both courts relied on cases which sustained bystanders' causes of action for emotional distress due to witnessing the death or injury of a relative in allowing separate "each person" limits. Neither case indicated whether the same result would be reached where, as in this case, the claimants did not witness the accident.
On the other hand, the court in Wolfe, although allowing additional coverage for emotional distress, implied in its reasoning that a difference exists where NIED claimants have not witnessed the accident resulting in injury or death:
While any harm to a spouse or a family member causes sorrow, we are here concerned with a more narrowly confined interest in mental and emotional stability. When confronted with accidental death, the reaction to be expected of normal persons, . . . is shock and fright. It is the sensory perception of a shocking event which causes a separate, compensable injury . In a Portee claim, it is the plaintiff's perception which causes the perceiver to suffer a traumatic sense of loss. Such emotional distress is not equivalent of grief from losing a loved one, but is inflicted by the trauma of seeing a loved one suffer or die or of seeing efforts to revive her being unsuccessful.
Wolfe, 224 N.J. Super. at 352, 540 A.2d at 873 (citations omitted) (internal quotation marks omitted).
Of further significance in Wolfe is that the court distinguished United Pacific Insurance Co. v. Edgecomb, 41 Wash. App. 741, 706 P.2d 233 (1985), specifically recognizing the difference in the analysis when a NIED claimant was not a witness to the accident. The Wolfe court noted that "in Edgecomb, the court [in holding that there was no additional per person coverage] stated that the father's claim was derivative from his son's injuries particularly because he did not witness the accident[.]" Wolfe, 224 N.J. Super. at 353, 540 A.2d at 874 (emphasis added).
In Edgecomb, the Washington Court of Appeals refused to apply a separate "each person" limit of liability for a father's claim for grief and mental anguish arising from his son's serious injuries sustained in an auto accident. The court reasoned:
The [father's] grief and mental anguish are consequential damages arising from the injuries to [his son] rather than direct damages. Therefore, the damage award for injuries to the child is combined with the damage award for the parent's anguish and grief which are derivative of and entirely dependent upon the injury to the child. . . .
[The father] is claiming damages for his injuries resulting from witnessing the consequences of the ac
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