Alma Evans Trucking v. Roach, 20200
| Decision Date | 24 February 1986 |
| Docket Number | No. 20200,20200 |
| Parties | ALMA EVANS TRUCKING and/or Utah State Insurance Fund, Plaintiffs and Appellants, v. Heather Ann ROACH, minor daughter of Isaac Robertson, deceased, Defendants and Respondents. |
| Court | Utah Supreme Court |
Elliot K. Morris, James R. Black, Salt Lake City, for plaintiffs and appellants.
David L. Wilkinson, Atty. Gen., Stephen G. Schwendiman, Asst. Atty. Gen., Salt Lake City, for defendants and respondents.
Remona Roach, pro-se.
Plaintiffs seek review of an order of the Industrial Commission awarding death benefits to a posthumous child of a deceased worker, effective the date of the worker's death, which was about three weeks before the child was born.
On April 18, 1984, Isaac Robertson was killed in a trucking accident arising out of or in the course of his employment with plaintiff Alma Evans Trucking. On May 11, a daughter was born to Remona J. Roach. The child, Heather Ann Roach, is the daughter of the deceased, Isaac Robertson. The mother, Remona J. Roach, is not entitled to death benefits, but the child, Heather, is entitled to death benefits under U.C.A., 1953, § 35-1-68. An administrative law judge ordered benefits to be paid into a trust fund for Heather and commenced benefits April 19, the day following Robertson's death.
Plaintiffs seek review of the award, contending that Heather's benefits should start with the day of her birth and not with the date of Robertson's death.
Section 35-1-68 awards benefits to certain wholly dependent persons at the time of the worker's death. Under section 35-1-71, a child under the age of eighteen years is presumed to be wholly dependent for support upon a deceased employee. That section defines a "child" as including a posthumous child.
We believe that the legislature used the word "child" in its ordinary and usual sense, viz., a child which has been born. Also, we believe by its very definition a posthumous child is not a posthumous child until it is born. Black's Law Dictionary (Rev. 4th ed. 1968) defines a posthumous child as "one born after the death of its father; or, when the Caesarean operation is performed, after that of the mother." Until the child is born, it is usually referred to as a child in utero or a fetus. While the legislature had the power to award benefits to a child in utero, it clearly did not do so. It limited its award to children, including posthumous children. The unborn child in the instant case was neither "posthumous" nor a "child" until she was born.
In this interpretation, we are supported by the only case cited to us which is on point. In Smith v. Highway Commission, 78 Ind.App. 301, 134 N.E. 225 (1922), the court interpreted a statutory provision virtually identical to our section 35-1-71 defining the word "child" to include posthumous children. Said the court:
The legislature has declared that the term "child" as used in section 38 of the Workmen's Compensation Law, (Laws 1919, c.57) "shall include posthumous children." However, we are of the opinion that the legislature did not intend that compensation should be awarded to a posthumous child prior to its birth.
Our analysis finds support in Burns v. Alcala, 420 U.S. 575, 95 S.Ct. 1180, 43 L.Ed.2d 469 (1975), where the United States Supreme Court rejected the argument that "child" included a child in utero. The Court held in interpreting the Social Security Act that an unborn child was not a "dependent child" so as to...
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