Dunn v. Rose Way, Inc., 68019

• Decision Date: 18 May 1983
• Docket Number: No. 68019,68019
• Citation: 333 N.W.2d 830
• Parties: Michael E. DUNN, Administrator of the Estate of Donna Lynn Dunn; Michael E. Dunn, Administrator of the Estate of Emily Raye Dunn; Michael E. Dunn, Administrator of the Estate of Infant Dunn; and Michael E. Dunn, Individually, Appellants, v. ROSE WAY, INC.; John Gaylard Smith; Ford Motor Company; Ila R. Plasencia and Jean M. Davis, Appellees.
• Court: Iowa Supreme Court

Page 830

333 N.W.2d 830

Michael E. DUNN, Administrator of the Estate of Donna Lynn Dunn; Michael E. Dunn, Administrator of the Estate of Emily Raye Dunn; Michael E. Dunn, Administrator of the Estate of Infant Dunn; and Michael E. Dunn, Individually, Appellants, v. ROSE WAY, INC.; John Gaylard Smith; Ford Motor Company; Ila R. Plasencia and Jean M. Davis, Appellees.

No. 68019.

Supreme Court of Iowa.

May 18, 1983.

Rehearing Denied June 9, 1983.

Theodore T. Duffield and Jeffrey A. Boehlert, of Patterson, Lorentzen, Duffield, Timmons, Irish & Becker, Des Moines, for appellants.

Larry Seckington and Eric F. Turner of Herrick, Langdon & Langdon, Des Moines, for appellees Rose Way, Inc. and Smith.

H. Richard Smith and Randall H. Stefani of Ahlers, Cooney, Dorweiler, Haynie & Smith, Des Moines, for appellee Ford Motor Co.

Considered en banc.

HARRIS, Justice.

This is an interlocutory appeal from a trial court ruling which on defendants' motion dismissed six counts of a tort suit petition. Plaintiff-father brought the suit as a result of a traffic accident that killed his wife, his two-year-old daughter, and his unborn but viable child. We affirm in part, reverse in part and remand.

At the time of the accident Donna Dunn, who was seven and a half months pregnant, was traveling with her two-year-old daughter Emily west on a Des Moines freeway. Donna was driving a 1979 automobile which she and her husband owned. As she approached an exit ramp she saw two cars stopped ahead in the center of the three west-bound lanes. The two cars, driven by defendants Plasencia and Davis, had been involved in a minor collision. Neither car was disabled but both drivers were out of their cars and talking. Donna was either stopped or was slowing to a stop behind the parked cars when a tractor-trailer owned by defendant Rose Way and driven by defendant Smith plowed into the rear of Donna's car. It burst into flames; Donna, Emily, and the unborn child were all killed.

Defendants in this action are Plasencia and Davis (the two drivers), Rose Way (owner of the tractor-trailer), Smith (truck driver), and Ford Motor (manufacturer of Donna's vehicle). Counts III, XI, and XII were brought for the estate of the unborn, but viable child. They seek recovery under Iowa Code § 611.20. Counts VI, XVII, and XVIII were brought by plaintiff as the surviving parent of the unborn child under Iowa R.Civ.P. 8. The latter three counts seek recovery for damages resulting from deprivation of the unborn child's companionship, society, and services.

Our scope of review is most familiar:

A motion to dismiss admits, and is decided solely upon, all facts well pleaded. [Authority.] It is only sustainable when it appears to a certainty the pleader has failed to state a claim on which relief may be granted. [Authority.]

Peffers v. City of Des Moines, 299 N.W.2d 675, 677 (Iowa 1980).

The appeal presents two questions of law. Can a wrongful death suit be brought for the death of a viable unborn child? Can a rule 8 claim be brought?

I. In McKillip v. Zimmerman, 191 N.W.2d 706, 709 (Iowa 1971), this court interpreted the word "person" in Iowa's survival statute (Iowa Code § 611.20) to exclude an unborn child as one for whom damages are allowable. In Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981), the McKillip decision and its definition of "person" in section 611.20, were held by a majority of this court to apply to a viable unborn child.

Plaintiff asks us to overrule the McKillip decision and, especially, the Weitl holding and redefine "person" so as to allow wrongful death recovery for the viable unborn child here. It would unduly extend this opinion and yield little of precedential value to repeat the views of the majority and dissenting opinions in Weitl. A majority of the members of this court, not including the author of this opinion, continue to support the majority Weitl holding. Accordingly the trial court did not err in dismissing the wrongful death claim of the unborn child under Iowa Code § 611.20.

II. A question not reached in Weitl was the right of a parent to recover under Iowa R.Civ.P. 8. The rule provides: "A parent, or the parents, may sue for the expense and actual loss of services, companionship and society resulting from injury to or death of a minor child."

We have distinguished between the recoveries available under the survival statute, § 611.20, and under rule 8:

The right of action for wrongful or negligent death of another was unknown at common law and exists only by virtue of statute. [Authority.] In Iowa damages recoverable for the death of another are engendered by section 611.20, The Code, (survival statute) and rule 8, R.C.P., (wrongful death of minor).

....

The elements of damage recoverable under the code section and rule 8 are distinct. The rule purports to encompass all damages recoverable by a father acting in his own right and "expense" has been interpreted as having reference to "the reasonable cost incurred for medical attendance, nursing, and the like, including that of suitable burial." [Authority.]

On the other hand the survival statute relates to damages recovered for the minor's estate by an administrator or other legal representative. These latter damages are then distributed among decedent's heirs according to intestate laws.

....

We point out rule 8 is a restatement of section 10986, The Code, 1939. This or a similar statute has been in the Iowa code since the Revision of 1860. Those statutes and now rule 8 are remedial in nature, [Authority] to the extent of prescribing a means or method for obtaining redress for injuries to the father, in certain circumstances to the mother, as a consequence of the death of their unemancipated minor child. Insofar as the rule governs actions by the father seeking compensation on account of injuries to the child not resulting in death, it is perhaps only a codification of the common law.

As indicated at the outset of this division, the wrongful or negligent death of a minor gives rise in Iowa to two causes of action, one on behalf of the minor's administrator for those injuries which are personal to the decedent, section 611.20, the other on behalf of the father for loss of services during minority and expenses incurred on account of those injuries, rule 8. Actions brought under rule 8 are not for the injury to the child but for the injury to the father as a consequence of the injury to the child. [Authority.]

Wardlow v. City of Keokuk, 190 N.W.2d 439, 442-43 (Iowa 1971).

As the majority opinion in Weitl noted, Wardlow construed "loss of services" to include companionship and society. The legislature chose to agree; the wording of rule 8 now so specifies. 1973 Iowa Acts ch. 316.

Our decisions plainly establish two points: (1) rule 8 is remedial and should be construed "in the light of current social conditions," Wardlow, 190 N.W.2d at 448; Irlbeck v. Pomeroy, 210 N.W.2d 831, 833 (Iowa 1973) (rule should be "liberally construed in furtherance of its objects"), and (2) the gist of a rule 8 action is "a wrong done to the parent in consequence of injury to his child by the actionable negligence of another." Handeland v. Brown, 216 N.W.2d 574, 578 (Iowa 1974); Irlbeck, 210 N.W.2d at 833 ("Actions brought under rule 8 are not for the injury to the child but for the injury to the father as a consequence of the injury to the child."). In Irlbeck we also said: "Under rule 8 the parent has a cause of action for a legal wrong to himself independent of that of the child." Id. (Emphasis added.)

Under the second of these two points neither McKillip nor Weitl is precedent for the trial court holding on the rule 8 claims. The survival statute and rule 8 serve different functions and compensate different people for different wrongs. Under section 611.20 the wrong is done to the injured person and to that person's estate. Under rule 8 the wrong is done to a child's parents. See Wardlow, 190 N.W.2d at 442-43; Note, Iowa R.Civ.P. 8: Recent Developments, 24 Drake L.Rev. 203, 203 (1974); Note, Wrongful Death Damages in Iowa, 48 Iowa L.Rev. 666, 684 (1963).

Defendants advance several arguments in support of the trial court's ruling. Citing Weitl, they argue that an unborn child has no status under Iowa law, an argument that overlooks the fact that a parent does. They argue that a rule 8 claim would be too speculative both as to causation and damages. Weitl, they maintain, draws a bright line that is easy to apply (child must be born for the administrator to recover under § 611.20). But any general denial of liability is easy to apply. The argument really amounts to a general criticism of rule 8 and is not limited to the facts here. Whatever could be said in this regard against the claim of an unborn child could be said as well against the claim of a two-month-old child.

Defendants add a linguistic argument, asserting, "minor child" simply does not include an unborn child. The difficulty with this argument is that it depends on which dictionary is used. Webster's New International Dictionary, Third Ed. (1964), defines a child as "an unborn or recently born human being; fetus; infant; baby." This plain definition is not changed by addition of the word "minor." A minor person is simply one who has not yet reached majority, a category which certainly includes unborn persons. According to Webster's International Dictionary the word minor is derived from the Latin (minororis: smaller, less, inferior). A consideration of the real meaning of the words minor and child strongly support plaintiff's claim.

The Idaho Supreme Court had no difficulty understanding the plain meaning of these terms. Presented with a similar statute it said:

The trial court held, and it is contended here, that the cause of action authorized by I.C. § 5-310 for the death of a "minor child" does not extend to nor include a viable, unborn fetus which died of injuries, and hence was never born alive. We disagree. We hold...