Allegations of Emotional Injury Require Defense Until Physical Injury Disproved, Even if No Physical Injury Alleged

Abouzaid v. Mansard Garden Associates, LLC (N.J. June 21, 2011)

Under New Jersey law, a cause of action exists for negligent infliction of emotional distress based upon witnessing injury to a family member.  Based on Portee v. Jaffe, 84 N.J. 88 (1980), it was an action for the unique emotional distress suffered by a bystanders when loved ones are killed or injured.  The elements are:  (1) death or serious injury of another caused by the defendant’s negligence; (2) a marital or intimate relationship between the plaintiff and the injured person; (3) seeing the injury or death; and (4) severe emotional distress as a result.  Bodily injury is not a requirement for a successful Portee claim.

Two mothers asserted Portee claims as a result of watching their children get caught in a fire.  The fire was caused when a contractor hired by a landlord used paint thinner on a kitchen floor.  The paint thinner was ignited by the oven’s pilot light, and sent out flash of fire, which spread quickly and engulfed three young boys.  Their mothers, who were not injured in the fired, heard the explosion and saw their sons “engulfed by a fireball.”  As a result, the mothers brought Portee claims. 

The landlord’s insurer denied defense of the Portee claims, contending that no bodily injury had been alleged and since bodily injury was not a requirement of a Portee claim, could not be assumed.  New Jersey courts had previously held that emotional injury accompanied by physical distress constituted “bodily injury” within the meaning of insurance.   Courts held that because emotional distress claims required physical injury, there was a possibility of a duty to indemnify and therefore a duty to defend existed. 

With regard to Portee claims, which do not require physical manifestation to be actionable, the New Jersey Supreme Court held that “severe” emotional distress in most cases, bear with it a physical component.  Therefore, it could be assumed that a Portee claim included bodily injury, requiring an insurer to defend until physical injury has been conclusively disproven.

For a copy of the decision click here Sarah Delaney and Sharon Angelino

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