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State Farm Mutual Automobile Insurance Co. v. Dowdy4/22/2005
nsory observation of the relative's injuries more or less contemporaneously with learning of the nature of the victim's injury, and (3) the harm suffered was severe, but need not have resulted in physical illness or injury. To prevail on their parental loss of society claim, the Dowdys must show that the defendant negligently caused the injury or death of their child and that they suffered mental distress as a result. The coverage issues raised by both the NIED and loss of society claims center on whether the Dowdys suffered "bodily injury" and whether they were injured "in the same accident" as their daughter under the terms of the policy.
The arbitrator's determination of fault and liability will not necessarily resolve the coverage issues in this case. The meaning of "in the same accident" under the policy is a coverage question that is clearly distinct from the determinations to be made by the arbitrator. Because neither the NIED nor the loss of society claims require a showing of physical injury , it is not necessary for the arbitrator to determine whether the Dowdys suffered "bodily injury." The coverage issues are therefore not inextricably intertwined with the fault and liability questions to be arbitrated.
If the arbitrator finds liability on either or both claims, the assessment of damages may, but need not, include findings regarding whether the Dowdys suffered various physical symptoms alleged in their affidavits. Although whether the Dowdys suffered "bodily injury " under the policy remains a question for the court, the court should give collateral estoppel effect to fact determinations made by the arbitrator and these determinations, if made and necessary to the issues properly before the arbitrator, can serve to establish the underlying facts on which the court must base its coverage determination.
IV. CONCLUSION
We hold that the disputed coverage issues do not fall within the ambit of the policy's arbitration clause and that these coverage questions are not inextricably intertwined with the fault and liability issues committed to arbitration under the policy. We therefore REVERSE the trial court's order to refer the policy coverage issues for resolution by an arbitrator. On remand, the superior court has the discretion to allow arbitration of liability and damages to proceed before or even concurrently with court adjudication of the coverage issues to alleviate concerns regarding delay.
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