Judgment On The Pleadings – “Physical Distress” Is Not “Bodily Injury”

Attorney Chris Pickett won judgment on the pleadings for his client Acuity, with the court declaring that Acuity did not owe a duty to defend or indemnify its named insureds against an underlying case for negligent infliction of emotional distress. In this insurance coverage dispute, Acuity issued a commercial general and excess liability policies to Amalgamated Transit Union Local 241. Local 241’s Financial Secretary, Sandra Simmons, sued Local 241 and several of its officers alleging negligent infliction of emotional distress and negligent supervision. Simmons claimed that the conduct caused her “severe emotional distress, physical distress, anguish, humiliation and harm.” Local 241 and its officers tendered their defense to Acuity. Acuity denied the tenders and filed a complaint seeking a declaratory judgment that Simmons’ underlying complaint did not allege bodily injury and, in any event, was subject to the Employment Related Practices Exclusion. In cross-motions for judgment on the pleadings, Local 241 argued that the court should consider Simmons’ answers to interrogatories in the underlying case wherein Simmons was asked whether she suffered a bodily injury, to which Simmons answered, “Yes.” In the same interrogatories, Simmons listed various medical care providers who treated her for her injuries. Local 241 argued this was additional evidence of a “bodily injury.” Acuity argued, and the court agreed, that Simmons’ own opinion or legal conclusion as to whether she suffered a “bodily injury” was irrelevant to the analysis. Rather, it was for the court to consider the factual allegations and decide whether there was any potential claim for a physical injury to Simmons’ body, as was required to meet the Acuity policy definition of bodily injury. The court held that “physical distress” was insufficient to meet that definition.

Acuity v. Local 241, no. 13 CH 4842 (December 11, 2014).