Voorhees v. Preferred Mutual Insurance Co.3/20/1991
he injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting severe emotional distress. We find that a defendant's duty of reasonable care to avoid physical harm to others extends to the avoidance of this type of mental and emotional harm.
Id. at 101, 417 A.2d 521.
The Court determined that observance of "either death or this type of serious injury is necessary to permit recovery" and that these elements would eliminate "mere conjecture and speculation," id. at 96, 417 A.2d 521, and establish "genuine suffering that flows from such harm." Id. at 98, 417 A.2d 521. These elements are not present here. See Advisory Com'n v.
Diamond Shamrock, 243 N.J. Super. 170, 578 A.2d 1248 (App.Div.1990), which held that toxic chemicals without physical injuries could not support a claim for emotional distress damages.
The observance of death or serious injury to establish "genuine suffering" undoubtedly is part of the reason why there is a distinction in insurance policies between "personal injuries" and "bodily injuries." In the absence of an indicia of genuineness provided by resulting bodily harm, such emotional disturbance may be too easily feigned, depending, as it must, very largely upon subjective testimony of the claimant. As noted above, coverage for these types of emotional disturbances may be procured by an endorsement for an additional premium to cover the additional risks.
I, therefore, would hold that the subjective claims of emotional distress, interference with the rights of privacy, humiliation, embarrassment and mental anguish, inflicted by statements alone do not come within the definition of "bodily injury" in the homeowner's insurance policy.
Furthermore, in my view, false and erroneous verbal statements concerning the competence and fitness of a claimant do not constitute an "accident." "In its most commonly accepted meaning, or in its ordinary or popular sense, [accident] may be defined as meaning: a fortuitous circumstance, event or happening; an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual and unexpected by the person to whom it happens . . . something unforeseen, unexpected, unusual, extraordinary or phenomenal, taking place not according to the usual course of things or events, out of the range of ordinary calculations." Black's Law Dictionary 14. See John's Cocktail Lounge, Inc. v. North River Ins. Co., 235 N.J. Super. 536, 541-42, 563 A.2d 473 (App.Div.1989).
In workmen's compensation, it is usually defined as an "unlooked-for mishap or untoward event which is not expected or designed." See, e.g., Dudley v. Victor Lynn Lines, 32 N.J. 479, 490, 161 A.2d 479 (1960). Under a general comprehensive liability policy, "it is an unforeseen occurrence, i.e., an 'accident.'" Malanga v. Manufacturers Cas. Ins. Co., 28 N.J. 220, 227, 146 A.2d 105 (1958).
"As used in insurance policies [an accident] is simply an undesigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force, but it does not mean the natural and ordinary consequences of a negligent act." 7A Appleman, Insurance Law and Practice § 4492, at 17 (Berdal ed. 1979). In general, courts are inclined to give the ter
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