Coverage for bodily injury has long been standard in commercial general liability (CGL) policies. The term “bodily injury” is generally defined as “bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom.” But over the years, many courts have addressed the scope of what bodily injury encompasses – including whether emotional harm or biological harm constitutes bodily injury.
Emotional Harm without Physical Symptoms
Many courts have analyzed whether bodily injury includes emotional injury, with or without accompanying physical harm. When there is emotional harm absent physical injury, the vast majority of courts have held that coverage does not apply – that the ordinary meaning of the term “bodily injury” unambiguously connotes a physical problem. However, not all courts have agreed. One court bucking the trend was the New York Court of Appeals, which held that emotional distress was enough to constitute bodily injury when tenants were present for a ceiling collapse during a renovation of their apartment. The tenants’ claims that they suffered emotional distress did not allege physical injury. The landlord’s CGL policy defined bodily injury as “bodily injury, sickness or disease,” and the court held that the average reader of this policy might reasonably conclude that the definition included mental as well as physical sickness. “Emotional trauma may be as disabling as physical injury,” the court stated in deciding that the policy language was ambiguous enough to allow for inclusion of pure mental injury.1
Emotional Harm with Physical Symptoms
When emotional distress results in physical symptoms, most courts have held that the distress meets the bodily injury requirement under the CGL policy. For instance, one court held that physical manifestations of emotional distress, such as migraines, stomach aches and nausea, constituted bodily injury2, while another stated “the allegation of high blood pressure [in addition to emotional distress] is deemed by this court to be an allegation of physical harm.”3 Another court held that “…mother of child hit by an automobile suffered severe fright, shock, and emotional distress, and resulting physical injuries.”4
Some courts have had trouble distinguishing between physical and emotional injuries. Stating that the distinction should be judged on a case-by-case basis, one court reversed summary judgment in favor of the insurance company, finding the appellants raised a genuine issue of material fact about whether their mental injuries were accompanied by physical manifestations.5
Biological Harm
In a variety of contexts, courts have addressed whether potential biological or cellular-level harm constitutes bodily injury. One fertile area of litigation has involved allegations of biological harm related to the use of cellular phones. Many courts have made similar holdings as the Fourth Circuit, which ruled that an insurer had a duty to defend claims alleging that radio frequency radiation emitted by cell phone use caused “adverse cellular reaction and/or cellular dysfunction through its adverse health effect[s] on the body.” The Fourth Circuit held that these allegations met the definition of bodily injury.6
At least one court explored whether exposure to lead, absent allegations of actual physical illness, met the bodily injury requirement. In a case involving lead paint, the court held that exposure constitutes bodily injury, even without symptoms of disease, and that bodily injury occurs at the time the person is first exposed to the lead.7
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1 Lavanant v. General Accident Insurance Co. of America, 79 N.Y.2d 623, 595 N.E.2d 819, 584 N.Y.S.2d 744 (1992),
2 Haralson v. State Farm Mutual Automobile Ins. Co., 564 F. Supp. 2d 616 (N.D. Tex. 2008)
3 Western Casualty & Sur. Co. v. Waisanen, 653 F. Supp. 825, 833 (D.S.D. 1987)
4 Employers Casualty Ins. Co. v. Foust, 29 Cal. App. 3d 382, 105 Cal. Rptr. 505, 507 (4th Dist. 1972)
5 Allstate Ins. Co. v. Wagner-Ellsworth, 344 Mont. 445, 188 P.3d 1042 (Mont. 2008)
6 Northern Insurance Co. of New York v. Baltimore Business Communications, Inc., No. 02-1358 (4th Cir. June 19, 2003),
7 ACE American Ins. Co. v. RC2 Corp., Inc., 568 F. Supp. 2d 946 (N.D. Ill. 2008)
