This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-1741

Twin Cities Glaziers Architectural

Metals & Glass Workers Local # 1324,

Appellant,

vs.

Western National Insurance Group,

Respondent.

Filed February 11, 1997

Affirmed

Lansing, Judge

Hennepin County District Court

File No. 9519600

Roger A. Jensen, Mitchell W. Converse, Peterson, Bell, Converse & Jensen, P.A., 3000 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for Appellant)

James T. Martin, Dan T. Ryerson, Gislason, Martin & Varpness, P.A., 7600 Parklawn Avenue South, Suite 444, Edina, MN 55435 (for Respondent)

Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

This is an appeal from a district court's summary judgment declaring that a general liability insurer was not obligated to defend the insured labor union in age discrimination litigation. The litigation did not involve allegations of "bodily injury" arguably covered by the policy, and we affirm.

F A C T S

William Worth, a journeyman glazier, sued Twin Cities Glaziers (TCG) alleging that their procedures for referring unemployed members to potential employers resulted in age discrimination. TCG is a union that serves as a broker/employment agency for its members, who are glaziers and glass workers. When Worth joined TCG in March 1986, he was told that TCG responded to potential employers' requests for referrals by referring only the name of the member who had been unemployed the longest.

After 1988 TCG did not find regular work for Worth. Worth sued TCG claiming that TCG's changing its referral policy to refer the names of all unemployed members instead of the name of the longest unemployed member resulted in age discrimination.

Between February 1989 and February 1993, TCG was insured by respondent Western National Insurance Group (Western National). TCG tendered defense of the lawsuit to Western National, who rejected the tender, claiming that Worth's alleged emotional anguish and distress was not accompanied by "bodily injury," which was necessary for coverage under TCG's policy. Western National also claimed that the alleged age discrimination did not constitute an "occurrence" within the meaning of the policy.

D E C I S I O N

An insurer that breaches its duty to defend is liable to the insured for attorneys' fees incurred in defending the underlying action. See SCSC Corp. v. Allied Mut. Ins. Co., 536 N.W.2d 305, 316 (Minn. 1995). The insurer has the burden of "showing that all parts of the cause of action fall clearly outside the scope of coverage." Jostens, Inc. v. Mission Ins. Co., 387 N.W.2d 161, 166 (Minn. 1986). If any part of the cause of action arguably falls within the scope of coverage, the insurer must defend. Inland Constr. Corp. v. Continental Cas. Co., 258 N.W.2d 881, 883 (Minn. 1977). "The interpretation and construction of an insurance contract is a question of law, subject to de novo review." Haarstad v. Graff, 517 N.W.2d 582, 584 (Minn. 1994).

Western National's policy insured TCG for "bodily injury" damages for which TCG became liable. Worth's complaint alleged emotional anguish and distress, without specifically alleging bodily injury. Because emotional distress is an injury to the psyche rather than the body, an allegation of emotional distress does not trigger coverage for "bodily injury." Garvis v. Employers Mut. Cas. Co., 497 N.W.2d 254, 257 (Minn. 1993).

Emotional distress accompanied by appreciable physical manifestations does constitute "bodily injury" within the meaning of an insurance policy. Id. at 258. The Minnesota Supreme Court has expressed caution in allowing damages for emotional distress:

We have not been anxious to expand the availability of damages for emotional distress. * * * This reluctance has arisen from the concern that claims of mental anguish may be speculative and so likely to lead to fictitious allegations that there is a potential for abuse of the judicial process. * * * Thus, we have been careful to limit the availability of such damages to "those plaintiffs who prove that emotional injury occurred under circumstances tending to guarantee its genuineness."

Lickteig v. Alderson, Ondov, Leonard & Sween, P.A., 556 N.W.2d 557, 560 (Minn. 1996), see Leaon v. Washington County, 397 N.W.2d 867, 875 (Minn. 1986) (physical manifestations test is "designed to assure the genuineness of the alleged emotional distress").

No bright line has emerged for determining precisely what types of physical manifestations amount to bodily injury. In a recent case addressing an insurer's duty to defend against a sexual harassment claim, we held that the bodily injury requirement was satisfied when the underlying complaint specifically alleged bodily injury and the allegation was supported with deposition testimony on sleeplessness, sluggishness, neck and back pain, chest pain, a displaced rib, heart ailments, and headaches. Meadowbrook, Inc. v. Tower Ins. Co., 543 N.W.2d 418 (Minn. App. 1996), rev'd on other grounds ____ N.W.2d ____ (Minn. Feb. 6, 1997).

Unlike the plaintiff in Meadowbrook, Worth did not allege bodily injury in his pleadings. In his deposition Worth claimed problems with anger, temper, crying, a loss of self-esteem, and depression requiring prescription antidepressant medication. The supreme court has not recognized depression as a physical manifestation of bodily injury. See Leaon v. Washington County, 397 N.W.2d 867, 875 (Minn. 1986) (depression, anger, fear, bitterness, and temporary loss of weight did not satisfy physical manifestations test for purpose of a claim for negligent infliction of emotional distress). Cf. Anderson v. AMCO Ins. Co., 541 N.W.2d 8, 11 (Minn. App. 1995) (complaint seeking recovery for panic attacks and wage loss resulting from emotional distress, for which plaintiff received psychological treatment, did not allege bodily injury covered by no-fault policy). Worth also claimed that his emotional problems resulted in high blood pressure, problems sleeping, and temporary weight loss of approximately ten or fifteen pounds. We conclude that these generalized physical complaints referred to in his deposition are not enough to convert Worth's lawsuit for emotional anguish and distress into a lawsuit for bodily injury. See Meadowbrook, ____ N.W.2d ____, slip op. at 12 n.19 ("Only when actual facts within the insurer's knowledge clearly establish the existence * * * of an obligation to defend, will this court hold that the complaint is not controlling.") (emphasis added).

We also note that in Meadowbrook, the supreme court held that the insurer had no duty to defend a complaint alleging hostile work environment harassment because of a policy exclusion for "bodily injury to any employee of the insured arising out of and in the course and scope of his employment by the insured." Western National's policy contains an identical exclusion.

Affirmed.