Morris Manning & Martin, LLP

Insurance Law Analysis: Impact Rule Trumps Choice of Law Rules


The "impact rule" limits "recovery for [negligent infliction of] emotional distress . . . [to where] there is some impact on the plaintiff, and that impact must be a physical injury."  See Lee v. State Farm Mut. Ins. Co., 533 S.E.2d 82, 84 (Ga. 2000). Accord, e.g.,Barker v. Fox & Associates, 192 Cal. Rptr. 3d 511, 529 (Cal. Ct. App. 2015); Noveshen v. Bridgewater Associates, LP, 47 F. Supp. 3d 1367, 1377 (S.D. Fla. 2014); Frogley v. Meridian Joint Sch. Dist. No. 2, 314 P.3d 613, 624 (Idaho 2013); Owens v. Connections Cmty. Support Programs, Inc., 840 F. Supp. 2d 791, 799 (D. Del. 2012) (applying Delaware law); Sherwood v. Oregon Dep't of Transp., 11 P.3d 664, 671 (Or. Ct. App. 2000); Anderson v. Scheffler, 752 P.2d 667, 669 (Kan. 1988).

Some states do not apply the impact rule, thereby allowing recoveries for negligent emotional distress without an impact.  See SCI Alabama Funeral Services, Inc. v. Brown, 770 So. 2d 97, 101 (Ala. Civ. App. 1999). Accord, Osborne v. Keeney, 399 S.W.3d 1, 15 (Ky. 2012); Clark v. Children's Mem'l Hosp., 955 N.E.2d 1065, 1085 (Ill. 2011); Pierce v. Casas Adobes Baptist Church, 782 P.2d 1162, 1165 (Ariz. 1989); Johnson v. D.C., 728 A.2d 70, 77 (D.C. 1999); Bovsun v. Sanperi, 461 N.E.2d 843, 844 (N.Y. 1984); Resavage v. Davies, 86 A.2d 879, 880 (Md. 1952).  Georgia follows the impact rule, but Alabama does not. 

In Coon v. Med. Ctr., Inc.,  No. A15A0884, Ga. Ct. App., Nov. 20, 2015 (reconsideration denied Dec. 15, 2015), the Georgia Court of Appeals addressed whether Georgia's impact rule would bar recovery, notwithstanding that Alabama law otherwise would apply.  The plaintiff delivered a stillborn baby, which the hospital switched with another stillborn baby prior to release for burial.  After the funeral for the plaintiff's baby, the hospital discovered the error.  The hospital paid to recover and bury the correct body, and the plaintiff sued for negligent infliction of emotional distress.

It was undisputed that Alabama law would allow the case to go forward, notwithstanding the absence of a physical impact to the plaintiff, and under Georgia's choice of law rules, Alabama law would apply.  Id. at *3.  The question was whether the Court would apply Alabama law where doing so would require Georgia courts to recognize a cause of action rejected in Georgia. After considering the question, a majority of the Court held that Georgia's public policy trumped the application of its choice of law principles.  As a result, Georgia’s impact rule applied.

An Illinois federal court reached the opposite conclusion in Schwarz v. Nat'l Van Lines, Inc., 375 F. Supp. 2d 690 (N.D. Ill. 2005).  In that case, an Oregon resident sued an Illinois mover for negligent infliction of emotional distress after it delayed delivery of her belongings for four months.  Illinois, the forum state, strictly applied the impact rule to this type of case, whereas Oregon allowed for an exception.  Weighing the various interests of Oregon and Illinois, the court determined that Oregon’s interests were greater, since that is where the plaintiff developed depression and received treatment.  Id. at 703.  As such, applying Oregon law to the impact rule issue, the plaintiff was allowed to maintain a cause of action without showing a physical injury. Id.

For more information, please contact the authors, Lew Hassett and Hillary Kinsey.


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