66 Federal Credit Union v. Tucker

• Citation: 853 So.2d 104
• Decision Date: 21 August 2003
• Docket Number: No. 2001-IA-00358-SCT.,2001-IA-00358-SCT.
• Parties: 66 FEDERAL CREDIT UNION, Mississippi Auto Recovery, Inc., and Grant Brownlee, Individually and as Agent and Employee of Mississippi Auto Recovery, Inc., Dr. Scott Nelson and Bolivar Leflore Medical Alliance, LLP, v. Tracy TUCKER.
• Court: United States State Supreme Court of Mississippi

853 So.2d 104

66 FEDERAL CREDIT UNION, Mississippi Auto Recovery, Inc., and Grant Brownlee, Individually and as Agent and Employee of Mississippi Auto Recovery, Inc., Dr. Scott Nelson and Bolivar Leflore Medical Alliance, LLP, v. Tracy TUCKER.

No. 2001-IA-00358-SCT.

Supreme Court of Mississippi.

August 21, 2003.

Terry R. Levy, Jackson, Audrey Carolyn Curry, Thomas C. Gerity, Ridgeland, Clinton M. Guenther, Greenwood, attorneys for appellants.

Ellis Turnage, Cleveland, attorney for appellee.

EN BANC.

SMITH, Presiding Justice, for the Court.

¶ 1. The case at bar is an interlocutory appeal presenting the Court with the first impression issue of whether our wrongful death statute, Miss.Code Ann. § 11-7-13 (Supp.2002), creates a cause of action for the death of a non-viable fetus, en ventre sa mere. Consistent with the language found in Miss.Code Ann. § 97-3-37 (Rev. 2000), we hold that the wrongful death statute, Miss.Code Ann. § 11-7-13 (Supp. 2002), includes an unborn child that is "quick" in the womb as a "person."

FACTS

¶ 2. Tracy Tucker bought an automobile from a dealership in Cleveland, Mississippi. She financed the purchase through 66 Federal Credit Union ("Credit Union"), her employer's credit union. Tucker pledged the car as collateral for the loan under the terms of the loan documents in which she gave the Credit Union the right to take possession of the car "without going to court and without giving advance notice" upon default. The following year, her account was in default. The Credit Union contacted Mississippi Auto Recovery, Inc. ("MARI") to repossess Tucker's car. MARI assigned Grant Brownlee to repossess the car.

¶ 3. On February 5, 1997, Brownlee attempted to repossess the car. The attempt failed. Tucker maintained possession of the car despite the delinquent account. Tucker alleges that during the course of the attempted repossession, a "breach of the peace" occurred. The Credit Union, MARI and Brownlee deny the allegation.

¶ 4. Tucker contends that she was approximately five months pregnant at the time of the repossession attempt. Dr. Scott Nelson saw Tucker on the eve of the attempted repossession for a complaint of vaginal itching. He treated her symptoms and performed an ultrasound which indicated a 19-week-old fetus. Tucker also alleges that Dr. Nelson made a negligent diagnosis. She argues that if the death of the fetus was caused by infection, then Dr. Nelson and his employer, Bolivar Leflore Medical Alliance, LLP, are liable for the wrongful death of the fetus.

¶ 5. On the evening of the attempted repossession, Tucker experienced stomach pains and was admitted to Bolivar County Hospital. She was released the next day and readmitted that same night for continued itching. On February 8, three days after the attempted repossession, Tucker miscarried.

¶ 6. Tucker filed this lawsuit against 66 Federal Credit Union, Mississippi Auto Recovery, Inc. and Grant Brownlee, an agent and employee of Mississippi Auto Recovery, Inc. Tucker allegedly incurred damages as a result of the attempted repossession of her automobile. Tucker asserts that those defendants are liable for negligent repossession, negligent misrepresentation, breach of the peace, assault and battery, negligence, intentional and negligent infliction of emotional distress, conversion and wrongful death. She also alleged that Dr. Scott Nelson and Bolivar County Medical Alliance, LLP committed medical malpractice that resulted in the wrongful death of her fetus.

¶ 7. All of the defendants filed motions for partial summary judgment claiming that the death of a non-viable fetus does not give rise to a wrongful death action. All parties and the trial court agree that the fetus was not viable at the time of the miscarriage. The trial court entered an order denying the motions for partial summary judgment on Tucker's wrongful death claim. The trial court certified interlocutory appeal to this Court which we granted. See M.R.A.P. 5.

DISCUSSION

¶ 8. The issue before the Court is whether Mississippi's wrongful death statute creates a cause of action for the death of a non-viable fetus en ventre sa mere.¹ This is a case of first impression. The standard of review is de novo.

¶ 9. To distinguish between viability and nonviability resurrects the same distinctions that led to the adoption of the wrongful death statutes in the first place. When a family loses a potential member because of tortious conduct of another, it suffers an injury of the same order as when it loses an existing member.

¶ 10. The pertinent history surrounding the issue begins with the landmark decision, Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884), in which Justice Holmes wrote that the common law did not recognize an action for prenatal injuries to a child. That rule was based on the idea that a duty could not be owed to an unborn plaintiff since it is still part of the mother. As the right to maintain an action for wrongful death did not exist, it was cheaper to kill a person than to injure him. W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 127, at 945 (5th ed.1984). Because of the harsh results of the common law rule, state legislatures enacted wrongful death statutes to correct what was considered to be an intolerable result. Id.

¶ 11. The dissent in Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E. 638 (1900), criticized the in Dietrich rule. The Allaire dissent called for the fetus to be recognized when it becomes viable and capable of existing separately from its mother. This decision was followed by most courts until Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C.1946), which "brought about the most spectacular abrupt reversal of a well-settled rule in the whole history of the law of torts ... So rapid has been the overturn that ... it is now apparently literally true that there is no authority left still supporting the older rule." Prosser, The Law of Torts § 55, at 336, 337 (4th ed.1971). Bonbrest was a medical malpractice case where the infant-plaintiff sought recovery for prenatal injuries sustained during delivery. Bonbrest represented a sharp break with the past by recognizing a right of recovery after the fetus attained viability.

¶ 12. Along with the right to recover for prenatal injuries came questions about the required stage of development of the child when injured. Those questions asked whether the child had to be "quick" in its mother's womb, or whether the child had to be viable, or whether the child had to survive birth. A "quick child" is defined as a child "that has developed so that it moves within the mother's womb." Black's Law Dictionary 1415 (4th ed.1968). "Viable" is a "term applied to a newly-born infant, and especially to one prematurely born, which is not only born alive, but in such a state of organic development as to make possible the continuments of its life." Id. at 1737.

¶ 13. Recovery for prenatal injuries when a child is born alive is permitted in every jurisdiction in the country. See Farley v. Sartin, 195 W.Va. 671, 466 S.E.2d 522, 528 (1995)

. Six states allow recovery for a non-viable fetus that dies while still in the womb. Id. See Porter v. Lassiter, 91 Ga.App. 712, 87 S.E.2d 100, 102 (1955) (allowing recovery for the death of an unborn child "so far developed as to be ordinarily called `quick'" or capable of moving in its mother's womb); Smith v. Mercy Hosp. & Med. Ctr., 203 Ill.App.3d 465, 148 Ill.Dec. 567, 560 N.E.2d 1164 (1990)(viability of fetus not necessary to maintain wrongful death action); Danos v. St. Pierre, 402 So.2d 633, 638 (La.1981) (relying on legislative pronouncement "that a human being exists from the moment of fertilization and implantation"); Connor v. Monkem Co., 898 S.W.2d 89 (Mo.1995) (relying on statute that extends to unborn children from the moment of conception all rights enjoyed by other persons); Wiersma v. Maple Leaf Farms, 543 N.W.2d 787 (S.D.1996) (citing statutory language which shows that the clear legislative intent to encompass nonviable children in the term "unborn child."); Farley v. Sartin, 195 W.Va. 671, 466 S.E.2d 522, 533 (1995) announcing that despite the lack of legislative guidance a cause of action for the wrongful death of a nonviable fetus exists since "societal and parental loss is egregious regardless of the state of fetal development."

¶ 14. The Mississippi wrongful death statute, Miss.Code Ann. § 11-7-13, states in pertinent part:

Whether the death of any person shall be caused by any real, wrongful, or negligent act or omission, or by such unsafe machinery, way or appliances as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof ... The action for such damages may be brought in the name of the personal representative of the deceased person for the benefit of all persons entitled under the law to recover, or by widow for the death of her husband, or by the parent of a child, or in the name of a child for the death of the parent ...

(emphasis added).

¶ 15. The Mississippi, wrongful death statute creates a cause of action for the wrongful death of an unborn child where the fetus was viable at the time of death. Sweeney v. Preston, 642 So.2d 332 (Miss.1994); Terrell v. Rankin, 511 So.2d 126 (Miss.1987); Rainey v. Horn, 221 Miss. 269, 72 So.2d 434 (1954).

¶ 16. Rainey specifically addressed an action for the wrongful death of a fetus that was viable at the time of injury and death. As specifically limited to that holding, this Court did not "pass upon the question of the negligent injury or death of a foetus at an earlier age" when speaking only to:

[t]he broad principles of the common law [that] embrace the subject of our inquiry in this case. We find no sound reason why we should withhold the processes of law from an unborn child that has reached the prenatal age of viability when it is capable of a separate and independent

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