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A woman who watched an uninsured driver strike and kill her best friend can recover for emotional distress under the uninsured motorist provision of her own auto policy, the Washington Court of Appeals, Division 1, ruled Jan. 14. The case, Trinh v. Allstate Ins., No. 48199-1-I, bears a strong resemblance to a 1998 case in which the Washington Supreme Court held just the opposite. What set this case apart, the appellate court held, is that Lien Trinh’s emotional distress had physical manifestations. Trinh’s friend was killed by a drunk driver as the friend was helping Trinh fix a flat tire. Though standing nearby, Trinh was not hit and did not need immediate medical care, the court said. But soon after, she suffered weight loss, hair loss and skin breakouts, as well as depression, anxiety and insomnia. Ultimately, she was diagnosed with posttraumatic stress disorder (PTSD), the court said. Her insurer, Allstate, refused to pay because its policy, tracking state statutory minimums, covered only “bodily injury.” In the 1998 case, Daley v. Allstate Ins., a state trooper and a colleague were both hit by an uninsured driver while helping a stranded motorist. The trooper revived his colleague with CPR, only to see him die after they were both taken to an emergency room, the supreme court recounted in its opinion. Long after his physical injuries had healed, the court wrote, the trooper began showing symptoms of PTSD. The court held that his insurer need pay only for his physical injuries, not emotional distress, even though both types of injury arose out of the same incident. In a footnote, however, the court noted that the trooper had not alleged that his “emotional distress has manifested physical symptoms, arguably, becoming a ‘bodily injury.’ “ That footnote was the foundation of the Trinh holding, although the appellate court also looked to decisions from several other states that have also found that emotional injuries accompanied by physical manifestations are compensable. The court even looked to a 1991 U.S. Supreme Court decision, Eastern Airlines Inc. v. Floyd, interpreting a “bodily injury” clause in the Warsaw Convention. The Floyd Court held that airline passengers may not recover for purely emotional injuries under the convention, but reserved judgment on emotional injuries with physical manifestations. Allstate’s attorney, Colleen Barrett of Seattle’s Barrett & Worden, warned that the Trinh decision could open a litigation floodgate, since arguably all emotional reactions result in physiological changes, if only at the cellular level. She said her client has not yet decided whether to seek review by the state supreme court. Betsylew Miale-Gix, a Seattle solo practitioner who represented Trinh, discounted Barrett’s worries. The appellate court and other states that take a similar approach have focused on physical changes that are outwardly discernible. She added that the decision restores a balance disrupted by Daley. Echoing the comments of Judge Charles W. Johnson, who dissented in Daley, she said that there is no question that the trooper and her client would have recovered if the drivers at fault were insured.

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