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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State Farm Mutual Automobile Insurance Co. v. Dowdy (09/26/2008) sp-6312
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| STATE FARM MUTUAL | ) |
| AUTOMOBILE INSURANCE | ) Supreme Court Nos. S- 12687/12698 |
| COMPANY, | ) |
| ) Superior Court No. 4FA-02- 1684 CI | |
| Appellant/Cross-Appellee, | ) |
| ) O P I N I O N | |
| v. | ) |
| ) No. 6312 September 26, 2008 | |
| ASA DOWDY and BARBARA | ) |
| DOWDY, | ) |
| ) | |
| Appellees/Cross-Appellants. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Niesje J. Steinkruger, Judge.
Appearances: Paul W. Waggoner, Law Offices
of Paul Waggoner, Anchorage, for
Appellant/Cross-Appellee State Farm.
Jonathon A. Katcher, Pope & Katcher,
Anchorage, for Appellees/Cross-Appellants Asa
and Barbara Dowdy.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Winfree,
Justice, not participating.]
MATTHEWS, Justice.
Additional per-person limits in an underinsured
motorist policy are available to persons who are injured in the
same accident as another person. The question in this case is
whether this language encompasses parents who suffered severe
emotional distress including physical manifestations upon
viewing their daughters body in the hospital after an automobile
accident. We hold that it does not because injury in the same
accident cannot be reasonably construed to refer to injuries that
result from viewing a dead or injured person away from an
accident scene.
FACTS1
Asa and Barbara Dowdy suffered severe emotional
distress as a result of the death of their seventeen-year-old
daughter, Heather.2 Heather was mortally injured in a collision
with an underinsured intoxicated driver, Kirk Jackson. The
Dowdys were not at the scene of the accident. When they learned
of the accident they went to the hospital where Heather had been
taken. The Dowdys first saw Heather at the hospital after she
died.
The Dowdys asserted claims against Jacksons insurer for
negligent infliction of emotional distress (NIED), loss of
society, and punitive damages.3 They settled for the available
limits of Jacksons policy, $50,000. The Dowdys were personally
insured by State Farm Mutual Automobile Insurance Company. Their
policy included underinsured motorist (UIM) coverage with policy
limits of $100,000 per person and $300,000 per accident.4 State
Farm paid Heathers estate UIM per-person limits. The present
case involves the Dowdys claim that separate per-person limits
are available to them.
PRIOR PROCEEDINGS
When we reviewed this case previously the question
presented was whether policy coverage issues should be determined
by arbitrators or by the superior court.5 We held that they
should be determined by the court.6 We noted that where coverage
issues are inextricably intertwined with issues of fault and
liability that are to be arbitrated, such coverage issues also
should be arbitrated even though they otherwise would not be
subject to arbitration.7 But we held that the coverage issues
in this case were not inextricably intertwined with the liability
and damages issues that were subject to arbitration.8
We identified two relevant coverage issues: (1)
whether the Dowdys suffered bodily injury and (2) whether they
were injured in the same accident as their daughter under the
terms of the policy.9 We observed that the arbitrators
determination of fault and liability would not necessarily
resolve these issues. As to the in the same accident point, we
observed that the issue was clearly distinct from the issues to
be decided by the arbitrators. As to whether the Dowdys suffered
bodily injury, we noted that this issue would not necessarily be
resolved by the arbitrators, but stated that if the arbitrators
did resolve the issue, their determination should be given
binding effect by the court:
The arbitrators 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.[10]
We also addressed the question of whether the courts
determination of coverage issues should take place before or
after arbitration, and we left that question to the discretion of
the court on remand.11
On remand the parties filed supplemental motions for
summary judgment, which the superior court initially addressed
before the issues of fault and liability were arbitrated. The
court granted State Farms motion for summary judgment with
respect to the Dowdys loss of consortium claims, ruling that
those claims were derivative and would not be covered by separate
per-person policy limits under the policy. With respect to the
Dowdys NIED claims, the court ruled that if the Dowdys were able
to prove these claims to the satisfaction of the arbitrators,
they can collect under the per accident policy limit, separate
from the each person limit paid to their daughters estate.
In reaching this conclusion, the superior court
addressed the two coverage issues discussed in our opinion. As
to the question of whether the Dowdys were injured in the same
accident as their daughter within the meaning of the policy, the
court concluded that if the Dowdys were found to have valid NIED
claims, they would necessarily satisfy the in the same accident
requirement of the policy:
There is no question that if the Dowdys
are able to demonstrate a valid NIED claim
for their shock upon seeing their daughter in
the hospital, their injuries were part of the
same accident in which Heather was killed.
This is clear from the Alaska cases
establishing the parameters of NIED claims by
parents who did not actually observe the
accident in which their child was injured.
Beck v. State, Dept of Transp. & Pub.
Facilities, 837 P.2d 105, 109-11 (Alaska
1992); Mattingly v. Sheldon Jackson Coll.,
743 P.2d 356, 364-66 (Alaska 1987); Tommys
Elbow Room, Inc. v. Kavorkian, 727 P.2d 1038,
1040-43 (Alaska 1986). If the Dowdys show
that their emotional shock resulted from
observation of their daughters injuries and
death during the continuous flow of events in
the immediate aftermath of the accident, and
it cannot be said they had time to steel
themselves, then the Dowdys were injured in
the same accident. To this extent at least,
the arbitrator should determine the
underlying facts, since this will be
necessary to determine whether the Dowdys
have a valid NIED claim against the
underinsured driver.
Therefore, if the arbitrator determines
that the Dowdys have valid NIED claims, then
they necessarily were injured in the same
accident as their daughter.[12]
As to whether the Dowdys suffered bodily injury within
the meaning of the policy, the court noted that the Dowdys, in
affidavits, described physical effects from the shock of seeing
their daughters body soon after she had died during emergency
surgery. The court ruled that these affidavits raised a genuine
issue of material fact as to whether the Dowdys suffered bodily
injury, and that this factual dispute should be resolved at
arbitration.13
A panel of three arbitrators decided the fault and
liability issues. A majority of the panel found that the Dowdys
had valid NIED claims, awarding Barbara and Asa Dowdy each
$250,000, comprised of $100,000 in compensatory damages for
severe emotional distress and $150,000 in punitive damages. In
the process, the arbitrators found that both Dowdys suffered
physical consequences from the shock of observing their daughters
body after the accident.
After the arbitrators made their award, the parties
again moved for judgment in the superior court. State Farm
argued that the policy did not cover what State Farm described as
the Dowdys hospital NIED claim. The Dowdys argued that judgment
should be entered based on the arbitrators award. The superior
court denied State Farms motion and granted the Dowdys motion.
The court decided that the State Farm UIM policy covered the
Dowdys NIED claims.
The court concluded based on the factual findings of
the arbitrators that the parents both suffered bodily injury. In
accordance with its prior decision that if the Dowdys
demonstrated valid NIED claims they were necessarily injured in
the same accident as their daughter, the court reaffirmed that
the in the same accident requirement of the policy was satisfied.
Based on these conclusions the court decided that the Dowdys were
entitled to recover $100,000 each under the separate UIM policy
limits plus prejudgment interest, attorneys fees, and costs.
CONTENTIONS ON APPEAL
State Farm appeals from the judgment on the merits. It
raises two main points although it expresses each of them in a
number of different ways. State Farms first point is that the
Dowdys do not have valid NIED claims and that to have valid
claims the Dowdys would have had to have witnessed the accident
or at least have viewed Heather at the accident scene before any
material change occurred. Second, State Farm contends that the
Dowdys did not suffer bodily injury in the same accident as their
daughter, and therefore there was no remaining coverage available
to them. Because we agree with State Farms second point, we find
it unnecessary to address the other points raised by State Farm
on appeal.
The Dowdys cross-appeal, raising a question as to the
award of attorneys fees. We do not discuss this question because
it is mooted by our decision on State Farms appeal.
STANDARD OF REVIEW
This appeal involves a ruling on summary judgment and
presents a question of law. We therefore apply a de novo
standard of review, adopting the rule of law that is most
persuasive in light of precedent, reason, and policy.14 We also
review de novo as a question of law the interpretation of
insurance policy language.15 Insurance policies are construed in
such a way as to honor a lay insureds reasonable expectations.16
Policy language is construed in accordance with ordinary and
customary usage.17 Ambiguities in an insurance policies are to be
construed most favorably to an insured, but ambiguities only
exist when there are two or more reasonable interpretations of
particular policy language.18
DISCUSSION
Were the Dowdys Injured in the Same Accident as Their
Daughter Within the Meaning of the Policy?
The arbitration that was conducted in this case fell
within the coverage of Alaskas Uniform Arbitration Act.19 Under
the act both findings of fact and legal conclusions are
unreviewable, even in the case of gross error.20 As already
noted, much of State Farms briefing is devoted to the proposition
that the arbitrators erred as a matter of law in finding that the
facts of this case supported an NIED claim. But we may not
review this question because of the doctrine of arbitrable
unreviewability. We thus confine this opinion to the question of
policy coverage.
State Farms argument on this point is that the coverage
it provides is not necessarily coextensive with NIED liability.
State Farm contends that even if the arbitrators decision
concerning the Dowdys entitlement to NIED awards is correct (or
incorrect but insulated from judicial review), per-person
coverage under the UIM policy does not extend to the Dowdys
claims because the Dowdys were not injured in the accident with
Heather.
The Dowdys argue that the in the same accident
requirement of separate coverage is necessarily satisfied because
the arbitrators have determined that the Dowdys have compensable
NIED bystander claims and this determination is legally correct
and, in any case, not subject to judicial review on its merits.
In accordance with the standard of review that we
employ in interpreting the language of insurance policies, the
question here is, could a reasonable person expect that policy
language providing coverage for damages due to bodily injury to
two or more persons in the same accident would apply to the
Dowdys who were not in the accident with their daughter, did not
witness it, and did not come upon it shortly after it occurred?
In our view this question must be answered in the negative.
The accident referred to by the policy in the context
of this case is, of course, the collision between the vehicles
driven by Kirk Jackson and Heather Dowdy. When it occurred Asa
and Barbara Dowdy were miles away. They did not view the scene
of the accident before Heather was transported to the hospital.
The arbitrators found that the accident occurred at 3:00 p.m.,
but Barbara Dowdy did not learn of the accident until 5:00 p.m.
She was permitted to view her daughters body at the hospital
sometime after 6:30 p.m. Asa Dowdy learned of the accident about
7:40 p.m., rushed to the hospital, and viewed Heathers body
shortly after 8:00 p.m. To conclude that either Barbara or Asa
Dowdy were injured in the same accident with Heather would
stretch the meaning of that phrase beyond any generally accepted
usage.
There is case law in other jurisdictions that lends
support to this conclusion. In Liberty Mutual Fire Insurance Co.
v. Dennison, the Supreme Court of Hawaii was presented with an
NIED claim.21 The plaintiff did not witness the auto accident in
which his son was injured but he arrived at what was described as
the triage area some thirty minutes after the accident occurred.22
The plaintiff suffered serious emotional distress as a result of
viewing his son in the triage area.23 Under a Hawaii statute, no
tort recovery was available except for a person who sustained
injury in a motor vehicle accident.24 The Hawaii Supreme Court
stated that the issue before it was
whether [the plaintiff], who was not a
passenger in the . . . car [in which his son
was a passenger], did not witness the car
accident, and arrived down the street from
the collision approximately thirty minutes
after the accident occurred, sustained his
emotional distress in the car accident for
purposes of [the statute in question].[25]
The court answered no to this question, but suggested that if the
father had witnessed the accident the statute would be satisfied.26
In reaching these conclusions, the Dennison court relied on an
earlier Hawaii case, First Insurance Co. of Hawaii v. Lawrence,27
which had similarly held that NIED claimants who did not at least
witness the accident in which their relative was killed were not
in the accident for purposes of the statute: Although the Smiths
claim that their emotional distress claims arose out of a motor
vehicle accident in which Christopher was killed, none of the
Smiths sustained their accidental harm in the accident.28
Both Dennison and Lawrence cited cases from other
jurisdictions holding that separate per-person (or per-accident)
limits were available to NIED plaintiffs who had directly
witnessed an accident giving rise to their injuries. The cases
relied on in Dennison are Employers Casualty Insurance Co. v.
Foust,29 Crabtree v. State Farm Insurance Co.,30 Wolfe v. State
Farm Insurance Co.,31 and State Farm Mutual Automobile Insurance
Co. v. Ramsey.32
Of these cases only Crabtree explicitly discusses the
in the same accident language. In Crabtree a woman witnessed an
accident in which her husband was injured.33 He was riding a
motorcycle and she was following him in her car.34 The Louisiana
Supreme Court held that the in the same accident language in a
State Farm policy was satisfied:
Mrs. Crabtree saw her husband violently
struck and severely injured by an oncoming
car. She suffered mental pain and anguish
precisely because she witnessed the event
which caused the severe injuries to her
husband. The same accident which caused Mr.
Crabtrees bodily injury also caused Mrs.
Crabtrees bodily injury.[35]
In Louisiana, NIED bystander claims can be maintained by persons
who view an accident that causes injury to a relative, or by
persons who soon after such an accident come upon the accident
scene. Such claims are referred to as Lejeune claims.36 The
Louisiana Supreme Court observed that it was not deciding whether
a person who meets the Lejeune requirements but who was not
timely present at the immediate scene of the incident has
incurred his or her bodily injury in the same accident as the
bodily injury to the original injured party.37 Thus the court did
not decide whether non-witness NIED claimants who come upon the
scene of an accident soon after it occurs would satisfy the in
the same accident requirement. The question in the present case
is at least a full step removed from the question reserved in
Crabtree because the Dowdys did not suffer their injuries as a
result of coming upon the scene of the accident.
The Dowdys contend that our decision in Allstate
Insurance Co. v. Teel38 indicates that they satisfy the in the
same accident requirement. Teel involved a coverage question
arising out of an NIED claim. The plaintiffs son was injured in
an automobile accident while a passenger in a car driven by
OFlanagan.39 Plaintiff asserted an NIED claim under OFlanagans
UIM policy issued by Allstate. Allstate claimed that coverage
was not available to the plaintiff under its policy because she
was not an insured person under OFlanagans UIM coverage which,
under the policy, included any other person who is legally
entitled to recover because of bodily injury to . . . an occupant
of [the insureds] auto . . . .40 Allstate contended that since
the plaintiff had an NIED claim and this claim was a direct
rather than a derivative claim under our case law, plaintiffs
claim was not because of bodily injury to her son. We rejected
this argument on the grounds that the because of language was
broad enough to encompass an NIED claim:
The injuries suffered by an individual
entitled to recover under the bystander
exception to NIED claims, though not
derivative, are the natural and probable
consequence of contemporaneously witnessing
the bodily injury suffered by someone with
whom they have a close relationship. We
therefore conclude that a party who has met
the burden of proving his or her NIED claim
would satisfy the causal requirement between
the accident and the injury that the Allstate
policy requires.[41]
Unlike in Teel, the policy language in the present case requires
that a person seeking separate per-accident coverage be injured
in the same accident. If the requirement for coverage were
simply that the plaintiffs had suffered injury because of the
injuries to their daughter, a substantially different coverage
question would be presented.
The Dowdys argue that because the arbitrators found
that they have valid NIED claims, this necessarily means that
they are entitled to separate per-person UIM limits. They base
this conclusion on Crabtree, discussed previously, and three
other opinions involving State Farm policies decided in other
jurisdictions. The other cases relied on by the Dowdys are State
Farm Mutual Automobile Insurance. Co. v. Jakupko,42 State Farm
Mutual Automobile Insurance Co. v. Connolly ex rel. Connolly,43
and State Farm Mutual Automobile Insurance Co. v. D.L.B. ex rel.
Brake.44 But each of these cases involved NIED claims of
witnesses to an underlying accident.45 It was therefore possible
to say, as the Louisiana court did in Crabtree, that the mental
distress that the witnesses suffered was an injury that occurred
in the same accident that physically involved the relatives of
the NIED plaintiffs.46 But since the Dowdys were far removed from
the accident involving their daughter, the same conclusion is not
possible here.
The Arizona case cited by the Dowdys, Connolly, makes
it clear that in Arizona the in the same accident requirement is
satisfied because NIED plaintiffs must be in the zone of danger
to be entitled to a recovery:
Significantly, Arizona cases require that the
negligent infliction of emotional distress
plaintiff must have been in the zone of
danger to recover. Thus, the successful
plaintiff has been directly affected by the
tortfeasors negligence. Unlike a loss of
consortium claim, in which the tortfeasors
injury to one person indirectly affects
another person by affecting the emotional,
physical, and/or financial relationship
between the injured party and the plaintiff,
a plaintiff who successfully asserts a
negligent infliction of emotional distress
claim has directly experienced the
tortfeasors negligence, and that negligence
has caused the plaintiff to suffer such
severe emotional distress that physical
injury results. The tortfeasor did not
merely affect the plaintiff by injuring
someone close to the plaintiff, so the injury
to the plaintiff is not solely due to the
bodily injury to another person. Instead,
the negligent infliction of emotional
distress plaintiffs injury is due to the
unique experience of having witnessed, at
such close range as to be in the zone of
danger, the event that caused the injury to
the other person. In other words, the
negligent infliction of emotional distress
claimants physical injury results from the
accident, not solely from the injury to the
other person.
In short, if a person has a valid
negligent infliction of emotional distress
claim, she has suffered a bodily injury
arising from the same accident as the other
injured party.[47]
In Alaska, unlike Arizona, the NIED tort is not limited
to the zone of danger. Similarly, unlike the other jurisdictions
relied on by the Dowdys, the NIED tort is not limited to
witnesses to an accident. Thus it is not possible to say that
all plaintiffs with NIED claims that are valid under Alaska law
are necessarily injured in the same accident as their injured
relatives.
Our focus when this case was before us previously was
on the question of whether coverage issues should be decided
judicially or at arbitration. We did not decide whether the
absence of coverage could be determined as a matter of law. But
that is the question now and under the facts and circumstances
presented it seems plain that the in the same accident language
of the policy cannot reasonably be construed to cover the Dowdys
NIED claim. The Dowdys were not injured in an accident. Rather,
they were injured as a result of the death of their daughter in
an accident. The policy provided coverage for their resulting
injuries but only under their daughters per-person coverage.
Since the limits for that coverage have been exhausted, they have
no remaining policy coverage under which they may recover
damages.
CONCLUSION
For the reasons stated the judgment of the superior
court is REVERSED.
_______________________________
1 This case is before us for the second time. Unless
otherwise noted, the following facts are taken from our previous
decision. State Farm Mut. Auto. Ins. Co. v. Dowdy, 111 P.3d 337
(Alaska 2005).
2 Id. at 338-39.
3 Id. at 339.
4 In our prior opinion in this case we stated that the
Dowdys had three policies with $100,000/$300,000 limits each.
Id. at 339. That was the representation made in the Dowdys brief
and it was not contested by State Farm. On the record as now
presented there is uncertainty as to whether the Dowdys had
three, or only one, $100,000/$300,000 policy. State Farms
complaint alleges that there is one policy and this allegation
was admitted by the Dowdys. The superior courts decision on
remand from this court and after arbitration only refers to one
policy and to available limits of $100,000 per person for the
Dowdys NIED claims even though the arbitrators awarded $250,000
to each of the Dowdys. The judgment from which this appeal is
taken likewise recognizes only one policy and awards to each of
the Dowdys $100,000 plus interest, costs, and attorneys fees.
The uncertainty as to whether there is one policy or three turns
out not to be important in view of our decision in this case.
For purposes of discussion, we assume based on the judgment that
there was only one policy.
5 Id. at 339-40.
6 Id. at 343.
7 Id. at 342.
8 Id. at 341-43. For the purpose of examining whether
coverage issues were inextricably intertwined with the Dowdys
NIED claims, we discussed what the Dowdys would have to prove to
prevail on those NIED claims:
[T]he Dowdys must show that (1) the defendant
negligently caused injury to a close
relative, (2) the plaintiffs experienced
shock as the result of a sudden sensory
observation of the relatives injuries more or
less contemporaneously with learning of the
nature of the victims injury, and (3) the
harm suffered was severe, but need not have
resulted in physical illness or injury.
Id. at 343.
9 Id. at 343. The relevant clause in the State Farm
policy giving rise to these issues provides as follows:
The amount of coverage is shown on the
declarations page under Limits of Liability
U1 Bodily Injury, Each Person, Each Accident.
Under Each Person is the amount of coverage
for all damages due to bodily injury to one
person. Bodily injury to one person includes
all injury and damages to others resulting
from this bodily injury. Under Bodily Injury
Each Accident is the total amount of
coverage, subject to the amount shown under
Each Person, for all damages due to bodily
injury to two or more persons in the same
accident.
10 Id.
11 Id. at 342-43.
12 Case citations have been modified to reflect this
courts preferred citation style. A footnote citation was
omitted.
13 The superior court also decided that punitive damages,
if awarded, would be covered by the Dowdys UIM coverage subject
to applicable limits.
14 State Farm Mut. Auto Ins. Co. v. Lestenkof, 155 P.3d
313, 316 (Alaska 2007).
15 Simmons v. Ins. Co. of N. Am., 17 P.3d 56, 59 (Alaska
2001).
16 Allstate Ins. Co. v. Falgoust, 160 P.3d 134, 138
(Alaska 2007).
17 Id. at 139.
18 Id. at 138.
19 AS 09.43.010.180.
20 The only exception is for legal conclusions that
pertain to questions of arbitrability. Kinn v. Alaska Sales &
Serv., Inc., 144 P.3d 474, 487 (Alaska 2006).
21 120 P.3d 1115 (Haw. 2005).
22 Id. at 1117.
23 Id. at 1118.
24 Id. at 1120.
25 Id.
26 Id. at 1121-22.
27 881 P.2d 489 (Haw. 1994).
28 Id. at 495. Although the court in Lawrence was
construing the language of a statute, the court observed that
similar policy language had the same meaning:
Of particular significance is the fact
that the phrase in any one auto accident
contained in the policy coincides with the
threshold requirement of [the statute] which,
as previously noted, provides that persons or
their representatives may bring an action in
tort due to death or injury as long as they
are such person[s] in a motor vehicle
accident. Again, none of the Smiths were in
the accident.
Id. at 502-03.
29 105 Cal. Rptr. 505 (Cal. App. 1972).
30 632 So. 2d 736 (La. 1994).
31 540 A.2d 871 (N. J. Super. App. Div. 1988).
32 368 S.E.2d 477 (S.C. App. 1988).
33 Crabtree, 632 So. 2d at 737.
34 Id.
35 Id. at 745.
36 The case in which bystander claims were first
recognized in Louisiana is Lejeune v. Rayne Branch Hosp., 556 So.
2d 559 (La. 1990).
37 Crabtree, 632 So. 2d at 745 n.19.
38 100 P.3d 2 (Alaska 2004).
39 Id. at 3.
40 Id. at 4.
41 Id. at 5.
42 856 N.E.2d 778 (Ind. App. 2006), vacated by State Farm
Mut. Auto. Ins. Co. v. Jakupko, 881 N.E.2d 654 (Ind. 2008).
43 132 P.3d 1197 (Ariz. App. 2006).
44 862 N.E.2d 678 (Ind. App. 2007), vacated by State Farm
Mut. Auto. Ins. Co. v. D.L.B. ex rel. Brake, 881 N.E.2d 665 (Ind.
2008).
45 In Jakupko the NIED claimants were passengers in the
automobile involved in the underlying accident at the time of the
collision. Jakupko, 856 N.E.2d at 780.
46 See Crabtree, 632 So. 2d at 745.
47 Connolly, 132 P.3d at 1203 (citations omitted).
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