Dieringer v. Sawmiller

[Cite as Dieringer v. Sawmiller, 2012-Ohio-4880.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
SANDRA DIERINGER, ET AL.,
PLAINTIFFS-APPELLANTS, CASE NO. 2-12-04
v.
BRADLEY O. SAWMILLER, ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Auglaize County Common Pleas Court
Trial Court No. 2011-CV-0080
Judgment Affirmed
Date of Decision: October 22, 2012
APPEARANCES:
J. Alan Smith and Austin M. Klaus for Appellants
Brian J. Bradigan for Appellees, Bradley Sawmiller and Dana Gilbert
Christopher W. Carrigg and Jennifer M. Brill for Appellee,
Motorists Mutual Insurance Company
Michael W. Sandner and Joshua M. Kin for Appellee, Grange
Insurance Company
Case No. 2-12-04
ROGERS, J.
{¶1} Plaintiffs-Appellants, Sandra Dieringer and Michael Dieringer
(collectively, the “Dieringers”), appeal the judgment of the Court of Common
Pleas of Auglaize County granting summary judgment in favor of Defendant-
Appellee, Motorists Mutual Insurance Company (“Motorists Mutual”), on the
Dieringers’ request for a declaratory judgment. On appeal, the Dieringers contend
that the trial court erroneously granted summary judgment because there is a
genuine issue of material fact as to whether Sandra suffered a “bodily injury” that
is covered under the terms of their insurance policy with Motorists Mutual. For
the reasons that follow, we affirm the trial court’s judgment.
{¶2} This matter arose from an automobile accident on September 8, 2010.
Bradley Sawmiller, a minor, was driving his automobile in a westbound direction
on Parkway Drive in St Mary’s Township when he struck Nancy Hertenstein, who
was walking westbound on the side of the street. Hertenstein was severely injured
and she died as a result. At the time of the accident, Hertenstein was walking with
Sandra, her sister. Although Sawmiller’s automobile did not strike Sandra, she
witnessed the accident and its resulting effect on her sister. Sandra has suffered
significant emotional distress from the accident.
{¶3} When the accident occurred, the Dieringers had an automobile
insurance policy with Motorists Mutual (the “Policy”). The Policy included a
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medical payment provision that read as follows: “We [Motorists Mutual] will pay
for reasonable expenses incurred for necessary medical and funeral services
because of bodily injury * * *.” (Docket No. 1, Policy, p. 5). Additionally, the
Policy contained the following uninsured motorist provision:
We will pay compensatory damages which an insured is legally
entitled to recover from the owner or operator of:
1. An uninsured motor vehicle as defined in Sections 1., 2., and 4.
of the definition of an uninsured motor vehicle because of bodily
injury * * *.
2. An uninsured motor vehicle as defined in Section 3. of the
definition of an uninsured motor vehicle because of bodily injury
sustained by an insured. Id. at 17.
Further, the Policy defined “bodily injury” as “bodily harm, sickness or disease,
including death that results.” Id. at 1. The Dieringers sought recovery for
Sandra’s injuries from the accident under the foregoing provisions. But, Motorists
Mutual rejected their claim.
{¶4} On April 13, 2011, the Dieringers filed their complaint alleging
various personal injury claims against Sawmiller, his parents, and unidentified
persons allegedly responsible for the negligent entrustment of the automobile to
Sawmiller. Michael, Sandra’s husband, asserted derivative claims for loss of
consortium. The Dieringers also requested a declaratory judgment as to their
rights and Motorists Mutual’s duties under the Policy.
{¶5} After discovery was taken, including Sandra’s deposition, Motorists
Mutual filed its motion for summary judgment on January 13, 2012. One of the
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bases for the motion was that Sandra did not suffer any bodily injury, as that term
is defined in the Policy’s medical payment and uninsured motorist provisions, and
that consequently Sandra’s injuries were not covered.1
{¶6} On February 6, 2012, the Dieringers filed their opposition to the
motion for summary judgment. They argued that Sandra’s Posttraumatic Stress
Disorder (“PTSD”) caused physical injuries, which brought her injuries under the
terms of the Policy. Several medical studies and reports regarding PTSD-related
physical injuries were attached to the Dieringers’ opposition.
{¶7} Also attached was the affidavit of Dr. Joel Steinberg, a board-certified
psychiatrist and internist. Dr. Steinberg’s affidavit indicated that on August 2,
2011, he “performed a comprehensive psychiatric evaluation” of Sandra that
lasted two hours and 20 minutes. (Docket No. 51. Exhibit 1, p. 1). He also
indicated that Sandra underwent four psychological tests, took seven written tests
regarding her emotional health, and answered a health questionnaire. Dr.
Steinberg also stated that he reviewed the accident report and Motorists Mutual’s
motion for summary judgment and its recitation of the Policy’s definition of
bodily injury.
{¶8} Based on these items, Dr. Steinberg attested that as a result of
Sandra’s witnessing the accident, she “is suffering from significant psychiatric
1
We note that Motorists Mutual also argued in its motion that summary judgment was appropriate because
the Dieringers were not “insureds” under the Policy’s terms. The trial court did not address this contention
and Motorists Mutual has not raised it on appeal, so we need not consider it.
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Case No. 2-12-04
symptomatology [and] has psychiatric problems she never had before September
8, 2010, including my diagnosis that she is suffering from Posttraumatic Stress
Disorder * * *.” Id. at 2-3. Dr. Steinberg went on to state that Sandra’s symptoms
amount to a bodily injury under the Policy because PTSD causes the following
physical harms:
[PTSD] causes brain cell damage and objectively verifiable physical
injury to the human brain;
[PTSD] shortens the life expectancy of persons who suffer from it;
[PTSD] causes atrophy of the memory circuits (hippocampal gyrus);
[PTSD] is associated with the development of a number of other
somatic (bodily) problems, such as the premature development of
coronary artery disease and other conditions. Id. at 3.
{¶9} After hearing the arguments, the trial court granted Motorists Mutual’s
motion for summary judgment on February 7, 2012. The trial court’s judgment
included the following relevant language:
While [the Dieringers’] theory is well reasoned, it flies in the face of
existing case law that consistently excludes [PTSD] injuries from
coverage under similar [policy] language. Following the line of
cases in Ohio that the appellate courts have consistently applied
[finding that] posttraumatic distress is not a bodily injury, the court
declines [the Dieringers’] request to overturn the body of case law
that consistently has declined to recognize the cause of action being
pursued * * *. (Docket No. 52, p. 1-2).
As a result, the trial court found that the Policy’s provisions for medical payments
and uninsured motorist coverage did not cover Sandra’s injuries, dismissed the
Dieringers’ claim against Motorists Mutual, and certified its order under Civ.R.
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54(B).2 The Dieringers’ claims against the other defendants remain before the
trial court, where the proceedings have been stayed pending the disposition of this
appeal.
{¶10} The Dieringers filed this timely appeal, presenting the following
assignment of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED BY GRANTING SUMMARY
JUDGMENT IN FAVOR OF APPELLEE MOTORISTS
BECAUSE GENUINE ISSUES OF MATERIAL FACT
EXISTED AS TO WHETHER APPELLANT SANDY
DIERINGER SUFFERED “BODILY INJURY” AS THE
RESULT OF THE AUTOMOBILE/PEDESTRIAN ACCIDENT
WHICH OCCURRED ON SEPTEMBER 8, 2010. THE TRIAL
COURT ERRED BY GRANTING SUMMARY JUDGMENT IN
FAVOR OF THE APPELLEE MOTORISTS BECAUSE IN
ORDER TO DO SO THE JUDGE HAD TO IMPROPERLY
WEIGH THE UNDISPUTED MEDICAL EVIDENCE AND
COMPLETELY IGNORE THE UNOPPOSED AFFIDAVIT OF
JOEL STEINBERG, M.D. WHICH CLEARLY STATED THE
OPINION OF DR. STEINBERG THAT SANDY DERRINGER
SUFFERED “BODILY INJURY” AS DEFINED BY THE
MOTORIST POLICY AND FURTHER THE AFFIDAVIT
PROVIDED UNDISPUTED EVIDENCE THAT RECENT
ADVANCEMENTS IN MEDICAL SCIENCE HAVE SHOWN
THAT POSTTRAUMATIC STRESS DISORDER (AND/OR
EXPOSURE TO EXTREME EMOTIONAL TRAUMA)
CAUSES ACTUAL (OBJECTIVELY VERIFIABLE)
PERMANENT PHYSICAL INJURY TO THE HUMAN
BRAIN. THEREFORE THE TRIAL COURT COULD NOT
2
We note that the trial court’s judgment only referred to the Policy’s uninsured motorist provision and that
Motorist Mutual’s motion only discussed that provision and the medical payment provision. However, the
Dieringers’ complaint asserted that both these provisions and the Policy’s property damage section covered
Sandra’s injuries. Since the property damage section, like the medical payments and uninsured motorist
provisions, only covers “bodily injuries,” we read the trial court’s judgment to bar coverage for Sandra’s
injuries under all of the provisions alleged in the Dieringers’ complaint.
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Case No. 2-12-04
DECIDE THE ISSUE AS A MATTER OF LAW BECAUSE IT
WAS AN ISSUE OF FACT TO BE SUBMITTED TO THE
JURY.3
{¶11} In their sole assignment of error, the Dieringers argue that the trial
court improperly granted summary judgment in favor of Motorists Mutual and that
instead the evidence shows that there is a genuine issue of material fact as to
whether Sandra suffered a bodily injury that is covered under the Policy.
Specifically, the Dieringers argue that the trial court improperly weighed the
evidence, ignored Dr. Steinberg’s affidavit, and disregarded medical evidence that
PTSD causes physical injury. We disagree.
Summary Judgment Standard
{¶12} An appellate court reviews a summary judgment order de novo.
Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th Dist.
1999). Accordingly, a reviewing court will not reverse an otherwise correct
judgment merely because the lower court utilized different or erroneous reasons as
the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton
Heidelberg Distr. Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d Dist.),
citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d
3This is an entirely improper form for an assignment of error. Assignments of error must indicate the
purportedly erroneous trial court judgment and provide a concise statement of the assignment’s basis. See
Russell v. United Missionary Baptist Church, 92 Ohio App.3d 736, 738 (12th Dist. 1994) (describing the
purposes of assignments of error and issues presented); Loc.R. 11(B) (“Assignments of error * * * should
be specifically applied to the error claimed.”). This paragraph-long assignment of error is clearly not
concise and it provides an extended outline of argument, which is neither appropriate nor suggested. As a
result, future assignments of error should not be presented for our review in this manner.
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217, 222 (1994). Summary judgment is appropriate when, looking at the evidence
as a whole: (1) there is no genuine issue as to any material fact, and (2) the moving
party is entitled to judgment as a matter of law. Civ.R. 56(C). In conducting this
analysis the court must determine “that reasonable minds can come to but one
conclusion and that conclusion is adverse to the party against whom the motion for
summary judgment is made, [the nonmoving] party being entitled to have the
evidence or stipulation construed most strongly in the [nonmoving] party’s favor.”
Id. If any doubts exist, the issue must be resolved in favor of the nonmoving
party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 359 (1992).
{¶13} The party moving for summary judgment has the initial burden of
producing some evidence which demonstrates the lack of a genuine issue of
material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). In doing so, the
moving party is not required to produce any affirmative evidence, but must
identify those portions of the record which affirmatively support his argument. Id.
at 292. The nonmoving party must then rebut with specific facts showing the
existence of a genuine triable issue; he may not rest on the mere allegations or
denials of his pleadings. Id.; Civ.R. 56(E).
PTSD’s Coverage as a “Bodily Injury” Under Insurance Policies
{¶14} We apply the precepts of contract interpretation when construing
insurance policies. See, e.g., Yeager v. Pacific Mut. Life Ins. Co., 166 Ohio St. 71-8-
Case No. 2-12-04
(1956), paragraph two of the syllabus. Insurance coverage is assessed by
interpreting the contract “in conformity with the intention of the parties or
gathered from the ordinary and commonly understood meaning of the language
employed.” King v. Nationwide Ins. Co., 35 Ohio St.3d 208, 211 (1988). When
the policy is clear and unambiguous, the court “may look no further than the four
corners of the insurance policy to find the intent of the parties.” (Citation
omitted.) Crow v. Dooley, 3d Dist. No. 1-11-59, 2012-Ohio-2565, ¶ 8.
{¶15} This matter revolves around our interpretation of the term “bodily
injury” in the Policy. Courts throughout the state have found that bodily injury
does not include emotional or mental distress. See, e.g., Bentley v. Progressive
Ins. Co., 4th Dist. No. 02CA10, 2002-Ohio-6532, ¶ 28 (citing cases). Most
relevantly, in Erie Ins. Co. v. Favor, 129 Ohio App.3d 644 (10th Dist. 1998), the
court applied this interpretation and found that PTSD-related emotional injuries
were not bodily injuries covered under an automobile insurance policy. Id. at 648-
49.
{¶16} The Dieringers present a novel argument in an attempt to further
develop its case law in light of recent medical advancements. Essentially, they
claim that these advancements have allowed doctors to find that PTSD produces
significant changes in neuroanatomy, including cell damage and brain atrophy,
reduces life expectancy, and has a connection with other bodily diseases, including
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coronary artery disease. The medical materials in the record are quite compelling
in establishing that PTSD may lead to physical injuries that are covered under the
bodily injury definition in the Policy. But, the materials do not suggest that
physical injuries are certain to follow from a PTSD diagnosis.
{¶17} The Dieringers suggest that Dr. Steinberg’s affidavit cures this
problem. The affidavit includes his medical conclusions that (1) Sandra suffers
from PTSD; and (2) she therefore has suffered physical injuries that are covered
by the Policy.4 However, there is no evidence in the record from which Dr.
Steinberg could reach the second conclusion. As noted in the medical materials
furnished by the Dieringers, there are a variety of available methods to map the
living human brain, such as X-rays, computed tomography scans, magnetic
resonance imaging, and magnetoencephalography. These methods are capable of
showing the type of physical injuries that PTSD is alleged to cause. But, the
record shows that Sandra did not undergo any of these scans. Without results
from these scans, there is no evidence that Sandra has suffered any
neuroanatomical changes, i.e. bodily injuries, as a result of her PTSD. Further, Dr.
Steinberg’s affidavit does not include any evidence that Sandra has suffered any of
the other possible physical effects from PTSD.
4
We note that while Dr. Steinberg is a preeminent physician, he is unqualified to give an opinion as to the
legal applicability of an insurance policy’s provisions.
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{¶18} In sum, the Dieringers presented evidence that PTSD has the
potential to cause physical injuries. However, they failed to present any evidence
that Sandra herself was suffering from PTSD-related physical injuries. As a result,
there is merely evidence that Sandra has a disorder that could have caused
physical injuries. Consequently, the Dieringers failed to satisfy their burden of
production to survive the summary judgment stage. In light of our finding, we
cannot find that the trial court improperly weighed the evidence or disregarded the
medical materials provided by the Dieringers with their opposition to Motorists
Mutual’s motion.
{¶19} Accordingly, we overrule the Dieringers’ sole assignment of error.
{¶20} Having found no error prejudicial to the Dieringers, in the particulars
assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J., concurs in Judgment Only.
PRESTON, J., concurs.
/jlr
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