[Cite as Dieringer v. Sawmiller,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY

SANDRA DIERINGER, ET AL.,

PLAINTIFFS-APPELLANTS, CASE NO. 2-12-04

v.

BRADLEY O. SAWMILLER, ET AL., OPINION

DEFENDANTS-APPELLEES.

Appeal from Auglaize County Common Pleas Court Trial Court No. 2011-CV-0080

Judgment Affirmed

Date of Decision: October 22, 2012

APPEARANCES:

J. Alan Smith and Austin M. Klaus for Appellants

Brian J. Bradigan for Appellees, Bradley Sawmiller and Dana Gilbert

Christopher W. Carrigg and Jennifer M. Brill for Appellee, Motorists Mutual Insurance Company

Michael W. Sandner and Joshua M. Kin for Appellee, Grange Insurance Company Case No. 2-12-04

ROGERS, J.

{¶1} Plaintiffs-Appellants, Sandra Dieringer and Michael Dieringer

(collectively, the “Dieringers”), appeal the judgment of the Court of Common

Pleas of Auglaize County granting summary judgment in favor of Defendant-

Appellee, Motorists Mutual Insurance Company (“Motorists Mutual”), on the

Dieringers’ request for a declaratory judgment. On appeal, the Dieringers contend

that the trial court erroneously granted summary judgment because there is a

genuine issue of material fact as to whether Sandra suffered a “bodily injury” that

is covered under the terms of their insurance policy with Motorists Mutual. For

the reasons that follow, we affirm the trial court’s judgment.

{¶2} This matter arose from an automobile accident on September 8, 2010.

Bradley Sawmiller, a minor, was driving his automobile in a westbound direction

on Parkway Drive in St Mary’s Township when he struck Nancy Hertenstein, who

was walking westbound on the side of the street. Hertenstein was severely injured

and she died as a result. At the time of the accident, Hertenstein was walking with

Sandra, her sister. Although Sawmiller’s automobile did not strike Sandra, she

witnessed the accident and its resulting effect on her sister. Sandra has suffered

significant emotional distress from the accident.

{¶3} When the accident occurred, the Dieringers had an automobile

insurance policy with Motorists Mutual (the “Policy”). The Policy included a

-2- Case No. 2-12-04

medical payment provision that read as follows: “We [Motorists Mutual] will pay

for reasonable expenses incurred for necessary medical and funeral services

because of bodily injury * * *.” (Docket No. 1, Policy, p. 5). Additionally, the

Policy contained the following uninsured motorist provision:

We will pay compensatory damages which an insured is legally entitled to recover from the owner or operator of: 1. An uninsured motor vehicle as defined in Sections 1., 2., and 4. of the definition of an uninsured motor vehicle because of bodily injury * * *. 2. An uninsured motor vehicle as defined in Section 3. of the definition of an uninsured motor vehicle because of bodily injury sustained by an insured. Id. at 17.

Further, the Policy defined “bodily injury” as “bodily harm, sickness or disease,

including death that results.” Id. at 1. The Dieringers sought recovery for

Sandra’s injuries from the accident under the foregoing provisions. But, Motorists

Mutual rejected their claim.

{¶4} On April 13, 2011, the Dieringers filed their complaint alleging

various personal injury claims against Sawmiller, his parents, and unidentified

persons allegedly responsible for the negligent entrustment of the automobile to

Sawmiller. Michael, Sandra’s husband, asserted derivative claims for loss of

consortium. The Dieringers also requested a declaratory judgment as to their

rights and Motorists Mutual’s duties under the Policy.

{¶5} After discovery was taken, including Sandra’s deposition, Motorists

Mutual filed its motion for summary judgment on January 13, 2012. One of the

-3- Case No. 2-12-04

bases for the motion was that Sandra did not suffer any bodily injury, as that term

is defined in the Policy’s medical payment and uninsured motorist provisions, and

that consequently Sandra’s injuries were not covered.1

{¶6} On February 6, 2012, the Dieringers filed their opposition to the

motion for summary judgment. They argued that Sandra’s Posttraumatic Stress

Disorder (“PTSD”) caused physical injuries, which brought her injuries under the

terms of the Policy. Several medical studies and reports regarding PTSD-related

physical injuries were attached to the Dieringers’ opposition.

{¶7} Also attached was the affidavit of Dr. Joel Steinberg, a board-certified

psychiatrist and internist. Dr. Steinberg’s affidavit indicated that on August 2,

2011, he “performed a comprehensive psychiatric evaluation” of Sandra that

lasted two hours and 20 minutes. (Docket No. 51. Exhibit 1, p. 1). He also

indicated that Sandra underwent four psychological tests, took seven written tests

regarding her emotional health, and answered a health questionnaire. Dr.

Steinberg also stated that he reviewed the accident report and Motorists Mutual’s

motion for summary judgment and its recitation of the Policy’s definition of

bodily injury.

{¶8} Based on these items, Dr. Steinberg attested that as a result of

Sandra’s witnessing the accident, she “is suffering from significant psychiatric

1 We note that Motorists Mutual also argued in its motion that summary judgment was appropriate because the Dieringers were not “insureds” under the Policy’s terms. The trial court did not address this contention and Motorists Mutual has not raised it on appeal, so we need not consider it.

-4- Case No. 2-12-04

symptomatology [and] has psychiatric problems she never had before September

8, 2010, including my diagnosis that she is suffering from Posttraumatic Stress

Disorder * * *.” Id. at 2-3. Dr. Steinberg went on to state that Sandra’s symptoms

amount to a bodily injury under the Policy because PTSD causes the following

physical harms:

[PTSD] causes brain cell damage and objectively verifiable physical injury to the human brain; [PTSD] shortens the life expectancy of persons who suffer from it; [PTSD] causes atrophy of the memory circuits (hippocampal gyrus); [PTSD] is associated with the development of a number of other somatic (bodily) problems, such as the premature development of coronary artery disease and other conditions. Id. at 3.

{¶9} After hearing the arguments, the trial court granted Motorists Mutual’s

motion for summary judgment on February 7, 2012. The trial court’s judgment

included the following relevant language:

While [the Dieringers’] theory is well reasoned, it flies in the face of existing case law that consistently excludes [PTSD] injuries from coverage under similar [policy] language. Following the line of cases in Ohio that the appellate courts have consistently applied [finding that] posttraumatic distress is not a bodily injury, the court declines [the Dieringers’] request to overturn the body of case law that consistently has declined to recognize the cause of action being pursued * * *. (Docket No. 52, p. 1-2).

As a result, the trial court found that the Policy’s provisions for medical payments

and uninsured motorist coverage did not cover Sandra’s injuries, dismissed the

Dieringers’ claim against Motorists Mutual, and certified its order under Civ.R.

-5- Case No. 2-12-04

54(B).2 The Dieringers’ claims against the other defendants remain before the

trial court, where the proceedings have been stayed pending the disposition of this

appeal.

{¶10} The Dieringers filed this timely appeal, presenting the following

assignment of error for our review.

Assignment of Error No. I

THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE MOTORISTS BECAUSE GENUINE ISSUES OF MATERIAL FACT EXISTED AS TO WHETHER APPELLANT SANDY DIERINGER SUFFERED “BODILY INJURY” AS THE RESULT OF THE AUTOMOBILE/PEDESTRIAN ACCIDENT WHICH OCCURRED ON SEPTEMBER 8, 2010. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF THE APPELLEE MOTORISTS BECAUSE IN ORDER TO DO SO THE JUDGE HAD TO IMPROPERLY WEIGH THE UNDISPUTED MEDICAL EVIDENCE AND COMPLETELY IGNORE THE UNOPPOSED AFFIDAVIT OF JOEL STEINBERG, M.D. WHICH CLEARLY STATED THE OPINION OF DR. STEINBERG THAT SANDY DERRINGER SUFFERED “BODILY INJURY” AS DEFINED BY THE MOTORIST POLICY AND FURTHER THE AFFIDAVIT PROVIDED UNDISPUTED EVIDENCE THAT RECENT ADVANCEMENTS IN MEDICAL SCIENCE HAVE SHOWN THAT POSTTRAUMATIC STRESS DISORDER (AND/OR EXPOSURE TO EXTREME EMOTIONAL TRAUMA) CAUSES ACTUAL (OBJECTIVELY VERIFIABLE) PERMANENT PHYSICAL INJURY TO THE HUMAN BRAIN. THEREFORE THE TRIAL COURT COULD NOT 2 We note that the trial court’s judgment only referred to the Policy’s uninsured motorist provision and that Motorist Mutual’s motion only discussed that provision and the medical payment provision. However, the Dieringers’ complaint asserted that both these provisions and the Policy’s property damage section covered Sandra’s injuries. Since the property damage section, like the medical payments and uninsured motorist provisions, only covers “bodily injuries,” we read the trial court’s judgment to bar coverage for Sandra’s injuries under all of the provisions alleged in the Dieringers’ complaint.

-6- Case No. 2-12-04

DECIDE THE ISSUE AS A MATTER OF LAW BECAUSE IT WAS AN ISSUE OF FACT TO BE SUBMITTED TO THE JURY.3

{¶11} In their sole assignment of error, the Dieringers argue that the trial

court improperly granted summary judgment in favor of Motorists Mutual and that

instead the evidence shows that there is a genuine issue of material fact as to

whether Sandra suffered a bodily injury that is covered under the Policy.

Specifically, the Dieringers argue that the trial court improperly weighed the

evidence, ignored Dr. Steinberg’s affidavit, and disregarded medical evidence that

PTSD causes physical injury. We disagree.

Summary Judgment Standard

{¶12} An appellate court reviews a summary judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co.,

(8th Dist.

1999). Accordingly, a reviewing court will not reverse an otherwise correct

judgment merely because the lower court utilized different or erroneous reasons as

the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton

Heidelberg Distr. Co.,

,

, ¶ 25 (3d Dist.),

citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Ed.,

This is an entirely improper form for an assignment of error. Assignments of error must indicate the purportedly erroneous trial court judgment and provide a concise statement of the assignment’s basis. See Russell v. United Missionary Baptist Church,

(12th Dist. 1994) (describing the purposes of assignments of error and issues presented); Loc.R. 11(B) (“Assignments of error * * * should be specifically applied to the error claimed.”). This paragraph-long assignment of error is clearly not concise and it provides an extended outline of argument, which is neither appropriate nor suggested. As a result, future assignments of error should not be presented for our review in this manner.

-7- Case No. 2-12-04

217, 222 (1994). Summary judgment is appropriate when, looking at the evidence

as a whole: (1) there is no genuine issue as to any material fact, and (2) the moving

party is entitled to judgment as a matter of law. Civ.R. 56(C). In conducting this

analysis the court must determine “that reasonable minds can come to but one

conclusion and that conclusion is adverse to the party against whom the motion for

summary judgment is made, [the nonmoving] party being entitled to have the

evidence or stipulation construed most strongly in the [nonmoving] party’s favor.”

If any doubts exist, the issue must be resolved in favor of the nonmoving

party. Murphy v. Reynoldsburg,

(1992).

{¶13} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact. Dresher v. Burt,

(1996). In doing so, the

moving party is not required to produce any affirmative evidence, but must

identify those portions of the record which affirmatively support his argument.

. The nonmoving party must then rebut with specific facts showing the

existence of a genuine triable issue; he may not rest on the mere allegations or

denials of his pleadings. Id.; Civ.R. 56(E).

PTSD’s Coverage as a “Bodily Injury” Under Insurance Policies

{¶14} We apply the precepts of contract interpretation when construing

insurance policies. See, e.g., Yeager v. Pacific Mut. Life Ins. Co.,

-8- Case No. 2-12-04

(1956), paragraph two of the syllabus. Insurance coverage is assessed by

interpreting the contract “in conformity with the intention of the parties or

gathered from the ordinary and commonly understood meaning of the language

employed.” King v. Nationwide Ins. Co.,

(1988). When

the policy is clear and unambiguous, the court “may look no further than the four

corners of the insurance policy to find the intent of the parties.” (Citation

omitted.) Crow v. Dooley, 3d Dist. No. 1-11-59,

.

{¶15} This matter revolves around our interpretation of the term “bodily

injury” in the Policy. Courts throughout the state have found that bodily injury

does not include emotional or mental distress. See, e.g., Bentley v. Progressive

Ins. Co., 4th Dist. No. 02CA10,

, ¶ 28 (citing cases). Most

relevantly, in Erie Ins. Co. v. Favor,

(10th Dist. 1998), the

court applied this interpretation and found that PTSD-related emotional injuries

were not bodily injuries covered under an automobile insurance policy.

at 648-

49.

{¶16} The Dieringers present a novel argument in an attempt to further

develop its case law in light of recent medical advancements. Essentially, they

claim that these advancements have allowed doctors to find that PTSD produces

significant changes in neuroanatomy, including cell damage and brain atrophy,

reduces life expectancy, and has a connection with other bodily diseases, including

-9- Case No. 2-12-04

coronary artery disease. The medical materials in the record are quite compelling

in establishing that PTSD may lead to physical injuries that are covered under the

bodily injury definition in the Policy. But, the materials do not suggest that

physical injuries are certain to follow from a PTSD diagnosis.

{¶17} The Dieringers suggest that Dr. Steinberg’s affidavit cures this

problem. The affidavit includes his medical conclusions that (1) Sandra suffers

from PTSD; and (2) she therefore has suffered physical injuries that are covered

by the Policy.4 However, there is no evidence in the record from which Dr.

Steinberg could reach the second conclusion. As noted in the medical materials

furnished by the Dieringers, there are a variety of available methods to map the

living human brain, such as X-rays, computed tomography scans, magnetic

resonance imaging, and magnetoencephalography. These methods are capable of

showing the type of physical injuries that PTSD is alleged to cause. But, the

record shows that Sandra did not undergo any of these scans. Without results

from these scans, there is no evidence that Sandra has suffered any

neuroanatomical changes, i.e. bodily injuries, as a result of her PTSD. Further, Dr.

Steinberg’s affidavit does not include any evidence that Sandra has suffered any of

the other possible physical effects from PTSD.

4 We note that while Dr. Steinberg is a preeminent physician, he is unqualified to give an opinion as to the legal applicability of an insurance policy’s provisions.

-10- Case No. 2-12-04

{¶18} In sum, the Dieringers presented evidence that PTSD has the

potential to cause physical injuries. However, they failed to present any evidence

that Sandra herself was suffering from PTSD-related physical injuries. As a result,

there is merely evidence that Sandra has a disorder that could have caused

physical injuries. Consequently, the Dieringers failed to satisfy their burden of

production to survive the summary judgment stage. In light of our finding, we

cannot find that the trial court improperly weighed the evidence or disregarded the

medical materials provided by the Dieringers with their opposition to Motorists

Mutual’s motion.

{¶19} Accordingly, we overrule the Dieringers’ sole assignment of error.

{¶20} Having found no error prejudicial to the Dieringers, in the particulars

assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW, P.J., concurs in Judgment Only. PRESTON, J., concurs.

/jlr

-11-