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State Farm Mutual Automobile Insurance Co. v. Dowdy4/22/2005
No. 5891
I. INTRODUCTION
In this petition for review, we address whether an arbitrator should decide two disputed insurance coverage issues. This matter arises in the context of an insurance policy's arbitration clause that provides for arbitration by written request of the insured or the insurer as to either of two questions: (1) "Is the insured legally entitled to collect damages from the owner or driver of the uninsured vehicle or under insured motor vehicle"; and (2) "if so, in what amount?"
Barbara and Asa Dowdy requested arbitration of their negligent infliction of emotional distress (NIED) and loss of society claims, including the question whether they were covered under the policy. The trial court granted the Dowdys' motion to stay the judicial proceedings and referred the matter to arbitration. State Farm filed a petition for review, which we granted. We hold that the coverage issues do not fall within the policy's arbitration clause and are not inextricably intertwined with issues of liability and damages committed to arbitration under the policy. We therefore reverse the trial court's decision to refer the policy coverage issues to arbitration.
II. FACTS AND PROCEEDINGS
On September 30, 2000 at 3:00 p.m., Kirk Jackson, driving with a blood alcohol content of at least .292, crossed over the centerline of the road and caused a head-on collision with seventeen-year-old Heather Dowdy. Troopers contacted Heather's mother, Barbara Dowdy, at 5:00 p.m. and informed her that Heather was in a serious accident. Barbara Dowdy went to Fairbanks Memorial Hospital and waited in the chapel until she was informed by a doctor at 6:20 p.m. that her daughter had died. During the three and one-half hours, the doctors had performed a series of medical procedures on Heather, including intubating, ventilating, abdominal surgery, shaving her skull, drilling a hole in her skull, and using an electrical saw on her skull. Barbara Dowdy first saw and identified her daughter after she had died. In her affidavit she states:
I remember screaming and shouting and I lost all rationality. . . . I lost track of time and space. . . . I was in such a state of shock that I was unable to operate a telephone to call my daughter Jennifer to tell her of Heather's death. My hands were shaking so strongly that I could not operate the buttons on the phone. I was crying so hard that I could not see the buttons through my tears. I was so disoriented that I could not remember Jennifer's phone number of many years. After the phone call I could not remember how to get back to the room where Heather was. . . . I had to be physically supported in order to walk back to Heather's room. . . . I continue to have problems with my short term memory since seeing Heather in the hospital.
Heather's father, Asa Dowdy, learned of the accident at 8:00 p.m. and rushed to the hospital. He was told that Heather had died and then saw his daughter. He describes his emotional response in his affidavit:
I started to cry and I physically felt a painful change in my chest as if there was a hole in my heart. I continued to feel this physical pain in my chest for five or six weeks after seeing Heather in the hospital. When I saw . . . I felt a weakness in my body that forced me to sit down. I wept.
The Dowdys assert that Heather died as a result of Jackson's reckless and outrageous conduct, and that they suffered negligently inflicted emotional distress and the loss of society of their minor child.
Jackson was insured by Allstate, which paid one $50,000 liability policy limit, plus add ons, to the Estate of Heather Dowdy to settle it
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