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An Albany, N.Y., appellate panel has held that a man who saw his father hit and killed by an automobile is entitled to recover for psychological injuries. The insurer apparently wrote its policy to avoid precisely the sort of liability it now faces. But the Appellate Division, 3rd Department, said an insured could read the policy two ways, and ambiguity is resolved to the benefit of the consumer. State Farm Mutual Automobile Insurance Co. v. Glinbizzi, 94868, was rooted in a fatal accident in which Nathaniel C. Glinbizzi Jr. struck and killed a pedestrian, Robert E. Tortorici, who was walking with his adult son. The son, Matthew Tortorici, unsuccessfully sought damages from State Farm under the “zone of danger” doctrine. Insurers can be liable for injuries to non-insureds who are in the immediate area of an accident involving someone who is insured. A policy covering “bodily injury, sickness or disease” encompasses the mental anguish suffered by one in the zone of danger, the state Court of Appeals said in Lavanant v. General Accident Insurance Co. of America, 79 NY2d 866 (1992). State Farm attempted to avoid Lavanant liability by modifying the standard policy definition of “bodily injury.” In the State Farm policy, coverage is provided for a “bodily injury to a person and sickness, disease or death which results from it.” The problem, according to the 3rd Department, is that provision can indeed be read as only covering “sickness, disease or death” of the person who suffered bodily injury. But it could also mean that “any sickness, disease or death to any person is covered if it results from bodily injury to the same or a different person,” the unanimous panel found. Justice Anthony T. Kane cited several precedents for the proposition that ambiguity “must be resolved in favor of the insured and against the insurer who drafted the contract.” Here, he said, State Farm’s “apparent attempt to avoid liability under the zone-of-danger doctrine” failed because the policy language is ambiguous. “The average insured owner would expect that such injuries suffered as a result of witnessing a relative’s death while in the zone of danger would be covered under this policy,” Kane wrote in an opinion joined by justices Thomas E. Mercure, D. Bruce Crew III, Anthony J. Carpinello and John A. Lahtinen. Last week’s ruling affirmed the findings of Supreme Court Justice Vincent J. Reilly Jr. of Schenectady and ordered State Farm to indemnify Glinbizzi. Appearing were Stuart M. Bodoff of Rivkin Radler in Manhattan, N.Y. for State Farm; Peter J. Hickey of Gerstenzang, O’Hern, Hickey & Gerstenzang in Albany, N.Y. for Glinbizzi; and Michael P. Delaney of Delaney & Granich in Albany for the Tortorici family. The Thanksgiving 2001 accident was one of a series of tragedies suffered by the Tortorici family. In 1994, Robert Tortorici’s mentally disturbed son, Ralph, took an Albany college class hostage and demanded to see the governor and top officials at the State University at Albany. Ralph Tortorici, who had a deformed penis, was convinced that government officials had implanted a microchip in his sex organ. The standoff ended tragically, when a student charged at Tortorici. The gun went off and the student was shot through the scrotum. At trial, the prosecution, judge and defense agreed that Tortorici suffered from a serious psychological disorder. However, since he met the legal definition of sanity in that he understood the consequences of his actions and knew that society deemed his conduct wrong, Tortorici was allowed to proceed to trial. The defendant, however, refused to take part and spent most of the trial waiting in a holding cell while the proceeding continued in his absence. Tortorici was convicted of multiple felonies and sentenced to a 20- to 47-year prison term. After the Court of Appeals upheld Tortorici’s conviction and rejected his claims of mental disease or defect, he committed suicide in prison. Family members said the father, Robert Tortorici, never got over his son’s death. After Robert Tortorici’s death in the accident, Glinbizzi was convicted of criminally negligent homicide and a drunken-driving offense. Judge Michael C. Eidens, of Schenectady County in New York, sentenced him to 1 to 4 years in prison. Judge Eidens also ordered Glinbizzi to buy a newspaper advertisement urging others to avoid his mistakes.

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