Alabama Farm Bureau Mut. Cas. Ins. Co. v. Pigott

• Decision Date: 06 February 1981
• Citation: 393 So.2d 1379
• Parties: ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY v. Thad Ira PIGOTT, as Administrator of the Estate of Patrick Pigott, deceased, etal. 79-543.
• Court: Alabama Supreme Court

Page 1379

393 So.2d 1379

15 A.L.R.4th 537

ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY v. Thad Ira PIGOTT, as Administrator of the Estate of Patrick Pigott, deceased, etal.

79-543.

Supreme Court of Alabama.

Feb. 6, 1981.

Olin W. Zeanah and William J. Donald, III of Zeanah, Donald & Hust, Tuscaloosa, for appellant.

James G. Lee of Lee, Barrett & Mullins, Tuscaloosa, for appellees.

SHORES, Justice.

This is a declaratory judgment action by Alabama Farm Bureau Mutual Casualty Insurance Company (Farm Bureau) which seeks a determination regarding its rights and obligations concerning Thad Ira Pigott, as administrator of the estate of Patrick Pigott, deceased, under the uninsured motorist and medical payment provisions of certain automobile liability insurance policies issued by that insurance company. The trial judge held that Patrick Pigott, an unborn child at the time of an automobile accident in which his mother was involved, was an insured within the meaning of these policy provisions. From the judgment so holding this appeal is taken.

The issue to be resolved is whether Patrick Pigott, deceased, an unborn child at the time of the accident in which his mother was involved, was at that time, within the meaning of the policies, a relative of the named insured, Thad Ira Pigott, and a resident of the named insured's household.

This case was submitted to the trial court on a stipulation of facts and documentary evidence. The facts are that Tamera ("Tammy") Faye Pigott was insured in an automobile accident on Alabama Highway 69 near Northport, Alabama, on January 3, 1979. She was riding as a passenger in an automobile driven by Brenda Jean Jones, an uninsured motorist. As a result of the accident, Brenda Jones died and Tammy Pigott was rendered comatose.

At the time of the accident, Tammy Pigott was residing with her natural mother, Anita Boyd Pigott, and her adoptive father, Thad Ira Pigott, and was pregnant, of which fact Thad Pigott was unaware. She was then unmarried and had never been married.

On March 8, 1979, Tammy Pigott while still in a comatose state, gave birth to Patrick Pigott, who died one day later. Hospital records show that Patrick Pigott's gestational age at birth was between 28 and 30 weeks. Due to her comatose condition, Tammy Pigott was declared non compos mentis and Thad Ira Pigott was appointed guardian of her estate and administrator of the estate of Patrick Pigott. Suit was brought against Edward Morgan, as administrator of the estate of Brenda Jones, and others, by Thad Ira Pigott, individually, as guardian of the estate of Tammy Pigott, and as administrator of the estate of Patrick Pigott, deceased, alleging, inter alia injuries to the unborn child and the resultant death of Patrick.

Four policies of automobile liability insurance issued by Farm Bureau to Thad Ira Pigott, as named insured, on four automobiles owned by him, were in effect on the date of the accident. The provisions of these policies pertinent to this case, identical in each policy, read as follows:

INSURING AGREEMENT III UNINSURED MOTORIST

Coverage M Damages for Bodily Injury Caused by Uninsured Automobiles.

The Company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages except punitive damages (other than for death) from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called "bodily injury," sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile....

(a) Insured. The unqualified word "Insured" means

(1) the First Named Insured as stated in the policy and while residents of the same household, the spouse of any such Named Insured and relative of either....

INSURING AGREEMENT I THE AUTOMOBILE

Coverage C Medical Payments.

To pay the reasonable expense of necessary medical, dental, x-ray, eyeglasses, hearing aids, surgical, ambulance, hospital, professional nursing, funeral services and prosthetic devices, all incurred within one year from date of accident....

DEFINITIONS INSURING AGREEMENTS I AND II

Named Insured means the individual so designated in the declarations and also includes the spouse, if a resident of the same household.

Insured under Coverages A, B, C, C-1, and C-2, the unqualified word "insured" includes (1) the named insured, and also includes (2) his relatives, (3) any other person while using the automobile, provided the actual use of the automobile is with the express permission of the named insured, and (4) under Coverages A and B any person or organization legally responsible for the use thereof by an insured as defined under the three subsections above.

Relative means a relative of the named insured who is a resident of the same household.

Construing these provisions under the facts as stipulated, the trial court concluded:

(T)he Court having considered same finds that the unborn fetus, Patrick Pigott, was a resident of the same household of Thad Ira Pigott and his spouse at the time of said accident, and that said unborn fetus was, therefore, an insured under the medical pay provisions and uninsured motorist provisions of the policies of insurance issued by Plaintiff Alabama Farm Bureau Mutual Casualty Insurance Company, to Thad Ira Pigott, said policies being identified by agreement in this cause, and it is so ORDERED.

Farm Bureau appealed and points out that the gestational age of 28 to 30 weeks at birth, on March 8, 1979, placed the unborn child at a gestational age of 19 to 21 weeks on January 3, 1979, the date of the accident. Citing Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), which held that viability occurs at the earliest at the 24th week of pregnancy, appellant asserts the unborn child was not viable at the time of the accident. Advancing its argument, appellant contends the unborn child, lacking viability, was only a "potential human life" and "not a person in being at that stage of its existence," Eich v. Town of Gulf Shores, 293 Ala, 95, 300 So.2d 354 (1974), and, consequently, could not have enjoyed the legal status of an insured person under the policies in question on the date of the accident, the event activating coverage.

Appellees counter with the argument that viability is not the issue, citing cases holding that, under the "relation back" doctrine, an unborn child may inherit property, Barnett v. Pinkston, 238 Ala. 327, 191 So. 371 (1939); share in life insurance proceeds payable to wife and children, Sauerbier v. Union Cent. Life Ins. Co., 39 Ill.App. 620 (1891); and his demise will support an action for wrongful death, Wolfe v. Isbell, 291 Ala. 327, 280 So.2d 758 (1973), regardless of viability. We agree that it is unnecessary to consider questions of viability in order to determine whether Patrick Pigott, deceased, was an insured under the pertinent policy provisions on the date of the accident.

Appellees note that Thad Ira Pigott, as administrator, has an available tort action against the uninsured motorist under the authority of Wolfe, supra, which held that a wrongful death action may be maintained for injuries to a fetus subsequently born alive, but who then dies from the injuries. Appellees add that Thad Ira Pigott, as administrator, would have been financially protected if Brenda Jones, the uninsured motorist, had complied with Alabama's "Motor Vehicle Safety-Responsibility Act" (§ 32-7-1, et seq., Code 1975) by purchasing liability insurance, since damages awarded in a wrongful death action against Brenda Jones would be paid by her liability insurer, had she been insured.

Appellees' argument is that policy considerations underlying our uninsured motorist statute (§ 32-7-23, Code 1975) are to provide the same protection to the injured party which would be available if the uninsured motorist had carried liability insurance.

This interpretation of the doctrine of coextensive coverage and this policy construction of our uninsured motorist statute were rejected in State Farm Automobile Insurance Company v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974). Appellees in that case urged this Court to adopt the rationale of Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971), wherein the Florida Supreme Court stated:

"When uninsured motorist coverage was obtained by Shelby Mullis ... for himself as the named insured, for his spouse and for his or his spouse's relatives who are residents of his household, they were given the same protection in case of bodily injury as if the uninsured motorist had purchased automobile liability insurance in compliance with the Financial Responsibility Law."

In response to that argument, this Court stated that "(w)e, however, cannot divine such an intent from the language of our Alabama statute. If it is deemed desirable to require insurance companies in Alabama to provide coverage to a certain class of persons in all policies under our 'Motor Vehicle Responsibility Act,' we think it necessary that the legislature say so specifically."

Appellant, in Reaves, supra, argued that uninsured motorist coverage was required only for the named insured, even though the liability provisions of the policy in question extended coverage to others, including relatives of the named insured who were residents of the same household. In rejecting appellant's argument, this Court said that once an automobile liability policy is issued extending coverage to a certain class of insureds under such a clause, uninsured motorist coverage must be offered to cover the same class of insureds. Thus, the mandated reciprocal extent of uninsured motorist coverage is determined by the extent of liability coverage for which the parties have contracted in the same policy, once minimal statutory liability coverage is provided, and not by the extent of liability coverage which would...