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Voorhees v. Preferred Mutual Insurance Co.3/20/1991
!--REF-->202 N.J. Super. 195, 204-205, 494 A.2d 339 (App.Div.1985), certif. den. 103 N.J. 453, 511 A.2d 639 (1986); Great American Ins. v. Lerman Motors, Inc., 200 N.J. Super. 319, 326, 491 A.2d 729 (App.Div.1984), we held that the phrase "bodily injury" in the insuring agreement included claims for emotional distress. Wolfe v. State Farm Ins. Co., 224 N.J. Super. at 353, 540 A.2d 871.
Synthesizing these decisions, the lesson to be learned is that mental anguish qualifies as "bodily injury" at least to the extent that the emotional distress alleged does not constitute "parasitic" damages attached to an independent cause of action. See Lumbermen's v. United Serv. Auto., 218 N.J. Super. at 498, 528 A.2d 64. Where the emotional distress is the product of the impairment of a "relational interest," however, it is arguable that the damages are "parasitic" and do not trigger the duty to defend or indemnify the insured. Id. at 498-499, 528 A.2d 64.
Within that analytical framework, it is clear that mental anguish resulting from the torts of outrage and negligent infliction of emotional distress constitutes a risk insured against under Voorhees' policy. Our courts have long recognized the tort of outrage as a separate cause of action. See, e.g., 49 Prospect Street v. Sheva Gardens, 227 N.J. Super. 449, 471, 547 A.2d 1134 (App.Div.1988); Hume v. Bayer, 178 N.J. Super. 310, 316-318,
428 A.2d 966 (Law Div.1981); Hafner v. Hafner, 135 N.J. Super. 328, 333-334, 343 A.2d 166 (Law Div.1975). The outlines of the cause of action are to be found in the Restatement, Torts 2d, § 46 at 71 (1965), which reads in pertinent part:
§ 46. Outrageous Conduct Causing Severe Emotional Distress.
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
As explained in Comment b of the Restatement:
As indicated in Chapter 47, emotional distress may be an element of damages in many cases where other interests have been invaded, and tort liability has arisen apart from the emotional distress. Because of the fear of fictitious or trivial claims, distrust of the proof offered, and the difficulty of setting up any satisfactory boundaries to liability, the law has been slow to afford independent protection to the interest in freedom from emotional distress standing alone. It is only within recent years that the rule stated in this Section has been fully recognized as a separate and distinct basis of tort liability, without the presence of the elements necessary to any other tort, such as assault, battery, false imprisonment, trespass to land or the like. This Section may be regarded as an extension of the principle involved in the rules stated in §§ 21-34 as to the tort of assault.
Additional support for the recognition of the tort of outrage as a separate cause of action is found in Dean Prosser's treatise on torts. Prosser, Law of Torts (3rd ed. 1964), § 11 at 41. While it is difficult to generalize as to what type of conduct is actionable, the cases cited by Prosser and our decisions disclose the elements that must be proved. They are (1) that the actor intended to inflict emotional distress on the plaintiff or acted in reckless dis
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