Common Policy Language Provides Coverage For Post-Traumatic Stress

By:  Asher Hawkins of the Law Weekly

Insurance

COMMON POLICY LANGUAGE PROVIDES COVERAGE FOR POST-TRAUMATIC STRESS

The majority of a Superior Court panel has indicated that language common in many auto insurance policies provides coverage to those who suffer post-traumatic stress disorder as a result of motor vehicle accidents – even if those claimants weren’t physically injured in accidents.

In so holding, the two-judge majority reversed a Philadelphia trial judge’s summary judgment finding in favor of an insurer who had denied such a claim.

Glickman v. Progressive Casualty Insurance Co. PICS Case No. 06-0208 (Pa. Super. Feb. 12, 2007) Colville, S.J. (7 pages) stems from a woman’s claim for first-party medical benefits after she was diagnosed with PTSD in the wake of witnessing her husband’s being fatally run over by a Progressive insured as the couple walked together across Roosevelt Boulevard.

Last March, Philadelphia Common Pleas Judge Mark I. Bernstein had granted summary judgment to Progressive.  In so holding, Bernstein cited Zerr v. Erie Insurance Exchange, 667 A.2d 237 (Pa. Super. 1995) in which the Superior Court agreed to the denial of benefits for a claimant who said he suffered PTSD manifesting in physical symptoms after nearly being involved in an auto accident.

But in the majority opinion in Glickman, Senior Judges Stephen J. McEwen, Jr. and Robert E. Colville focused on the differences between the policies involved in the two cases.

In Zerr, the insured’s policy defined “bodily injury” as “accidental bodily harm to a person and that person’s resulting illness, disease or death.”  That language is effectively identical to the definition of “bodily injury” found in Pennsylvania’s Motor Vehicle Financial Responsibility Law. 

But in Glickman, the insured’s policy defined “bodily injury” as “bodily harm, sickness or disease, including death that results from bodily harm, sickness or disease.”

“The critical difference between the two is that in order to be covered as an injury under the Zerr policy, the disease must be a result of bodily harm while, under [the instant Progressive] policy, disease is defined as an injury separate from bodily harm,” Colville wrote in Glickman.  “Because the definition of what constitutes a ‘bodily injury’ in the policy at issue in this case is different than the definition of ‘bodily injury’ in the Zerr policy, the holding of Zerr does not apply to the facts of this case.”

Having ruled in favor of claimant Sura Eynisfeld Glikman, the majority declined to address whether the Motor Vehicle Financial Responsibility Law should also be read in favor of Glickman.

In a footnote, Colville called attention to the fact that the MVFRL’s “bodily injury” definition mirrors that found in the policy at issue in Zerr.

“The definition of bodily injury in [Progressive’s] policy is consistent with the definition of injury in the MVFRL; however, the policy provides greater protection,” Colville wrote in that footnote.

In a single-sentence dissenting statement, President Judge Kate Ford Elliott, the third member of the Glickman panel, wrote that she would have affirmed Bernstein’s decision in the case.

Glickman’s attorney, Andrew Baratta of Baratta Russell & Baratta in Huntingdon Valley, said that language concerning first-party benefits in the Progressive policy at issue in the case is similar to that contained in many auto insurance policies.

The damages at issue in Glickman comprised of roughly $1,500 in medical bills, according to Baratta.

“It was never about money, it was about changing the law,” he said.

When contacted for comment, Progressive’s defense counsel in the case, Luisa Borelli of the Law Offices of Michael Phillips in Plymouth Meeting, refused to discuss the case.

An amicus brief on behalf of the Pennsylvania Trial Lawyers Association was filed with the Superior Court by Scott Cooper of Schmidt Kramer in Harrisburg.

According to the opinion, Glickman’s claim for reimbursement of her PTSD-related medical bills was denied by Progressive because the injuries Glickman said were caused by the accident were not a result of actual bodily injury.

Colville and McEwen concluded that the weak spot in Progressive’s argument is the fact that one of the definition of “bodily injury” in its Glickman policy is “disease.”

“As the policy language clearly states that ‘bodily injury’ includes any ‘disease’ caused by an automobile accident, we must give effect to the language of the contract,” Colville wrote, “Thus, under the language of [Progressive’s] policy, contraction of a ‘disease’ caused by an accident arising out of the maintenance or use of a motor vehicle is a specifically covered bodily injury under the policy.

“As [Progressive] neither disputes that post-traumatic stress disorder is a disease nor the cause of [Glickman’s] suffering [sic], we find that she has sustained a bodily injury within the meaning of the policy.”