Gulf Life Ins. Co. v. Brown

• Decision Date: 01 December 1986
• Docket Number: No. 72787,72787
• Citation: 351 S.E.2d 267,181 Ga.App. 72
• Parties: GULF LIFE INSURANCE COMPANY v. BROWN et al.
• Court: Georgia Court of Appeals

Page 267

351 S.E.2d 267

181 Ga.App. 72

GULF LIFE INSURANCE COMPANY v. BROWN et al.

No. 72787.

Court of Appeals of Georgia.

Dec. 1, 1986.

C.G. Jester, Jr., Rome, Guerry R. Moore, Atlanta, for appellant.

Edward Benton, Macon, Edward W. Clary, Homer, for appellees.

BENHAM, Judge.

On October 20, 1983, Gulf Life Insurance Company ("Gulf Life") issued a life insurance policy covering Benny R. Brown, his wife, and their children, as well as future additions to the family. At that time, the Browns had two children and were expecting a third. On May 3, 1984, after a 39-week gestation period, Mrs. Brown gave birth to a stillborn baby, Dustin Chad Brown, whose death resulted from intrauterine fetal asphyxiation. The Browns filed a claim with Gulf Life, seeking death benefits of $10,000 under the policy, but coverage was denied based on the stillborn birth. The Browns filed suit, and Gulf Life answered and moved for summary judgment, contending that the stillborn child was not a "person" covered under the policy. The trial court denied Gulf Life's motion for summary judgment, and this interlocutory appeal followed.

As far as we can determine, the issue presented here is one of first impression: Does a life insurance policy which covers after-acquired dependents but which does not define the term "person" cover a stillborn child? The insurance policy in question provides benefits for dependent children and defines them as follows: "(a) natural child; (b) step-child; or (c) legally adopted child. The child must depend primarily upon you for support and maintenance. The child must be unmarried and not have reached his/her 19th birthday at issue."

We will begin with a discussion of the history of prenatal injuries and death, not because the history is necessarily determinative, but because it sheds light on the subject. The debate over when life begins is almost as old as life itself. But, for legal purposes, the discussion must begin with Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884), which concerned a wrongful death action for an unborn child. In denying relief, Dietrich stated that an unborn child was still part of the mother. The issue was considered again in Allaire v. St. Luke's Hosp., 184 Ill. 359, 56 N.E. 638 (1900). While Allaire followed the ruling in Dietrich, a noteworthy dissent registered by Justice Boggs stated that a fetus should be recognized when it becomes viable and capable of existing separately from its mother. In another wrongful death action in 1949 for the loss of a fetus, Minnesota in Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838 (1949), recognized a right of action for the loss of a viable fetus. Cases allowing actions following Verkennes did so by recognizing a viable fetus as a "person" or "in life." Action for Death of Unborn Child, 15 A.L.R.3d 992, 993. There can be no real discussion of injuries and death without mentioning the seminal case of Bonbrest v. Kotz, 65 F.Supp. 138 (D.C.1946). Bonbrest was a medical malpractice case wherein the infant-plaintiff sought recovery for prenatal injuries sustained during delivery. In allowing recovery, Bonbrest represented a sharp break with the past by recognizing a right of recovery after the fetus attained viability.

It is interesting to note that Georgia entered the controversy of when life begins early on in the significant decision of Powell v. Augusta, etc., R. Co., 77 Ga. 192, 3 S.E. 757 (1887). While not allowing an action for the death of an unborn fetus, Powell did recognize a cause of action for injuries due to a miscarriage, thereby placing some importance on the life of a fetus. Admittedly, Powell and succeeding cases looked more to the damage done to the mother by the loss than to any damage done to the fetus. However, such an approach adds strength to appellee's argument here because benefits under a life insurance policy are designed to compensate the survivors and not the deceased.

Over the years, the issues of fetal injury and fetal death have been considered, in a criminal context, in numerous cases, such as Sullivan v. State, 121 Ga. 183, 48 S.E. 949 (1904). There the court interpreted the word "child" in the Penal Code to mean "an unborn child so far developed as to be ordinarily quick, so far developed as to move or stir in the mother's womb ... Rex v. Phillips, 3 Campbell [73, 77 (170 Eng.Rep. 1310) (1811) ]." Id. at 187, 48 S.E. 949. Cf. also Summerlin v. State, 150 Ga. 173, 103 S.E. 461 (1920). The most significant of these earlier discussions took place in Tucker v. Howard Carmichael & Sons, 208 Ga. 201, 65 S.E.2d 909 (1951). There, a cause of action was allowed on behalf of a child who suffered a prenatal, but not fatal, injury at the hands of a negligent party carrying its mother to a hospital. Tucker, quoting from Blackstone, Book I, page 130, of Blackstone's Commentaries on the Laws of England, stated: "The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb ... An infant in ventre sa mere, or in the mother's womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours." Id. at 203, 65 S.E.2d 909. Tucker is significant in that it represents for the first time a recognition by the courts of Georgia of the rights of a prenatal fetus separate and apart from its mother.

Tucker was quickly followed by Porter v. Lassiter, 91 Ga.App. 712, 87 S.E.2d 100 (1955), which allowed a lawsuit on behalf of a child who was injured after having become quick in the womb; and Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 93 S.E.2d 727 (1956), which held that "[i]f a child born after an injury sustained at any period of its prenatal life can prove the effect on it of a tort, it would have a right to recover." Id. at 504, 93 S.E.2d 727. (Emphasis supplied.) The latest word on prenatal injuries by Georgia courts came in McAuley v. Wills, 251 Ga. 3 (5), 303 S.E.2d 258 (1983), where the Georgia Supreme Court, after mentioning a long list of Law Review articles, including "Note, The Law and the Unborn Child; The Legal and Logical Inconsistencies," 46 Notre Dame Lawyer, 349 (1971), recognized the right to recover for prenatal injury by stating "[t]o the extent that the trial court ruled that a person owes no duty of care toward an unconceived child ... [cases] show that, at least in some situations, a person should be under a duty of care toward an unconceived child." Unquestionably, Georgia cases show a clear tendency toward placing a high premium on human life and an unmistakable willingness to recognize a fetus as a person at a time prior to actual delivery.

There can be no real and meaningful discussion of the issues of prenatal injuries, prenatal death, and what constitutes a "person" without consideration of the United States Supreme Court's landmark decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). While Roe v. Wade declared certain abortion statutes unconstitutional as being overly broad and vague and violative of the Fourteenth Amendment, it also touched on the issue of what constitutes a "person" for Fourteenth Amendment purposes. The State argued unsuccessfully that a fetus is a person and that it was therefore a violation of the Fourteenth Amendment to prevent the State from regulating abortions to protect life. Roe spoke to the issue: "The Constitution does not define 'person' in so many words ... But in nearly all these instances [where 'person' is mentioned in the Constitution], the use of the word is such that it has application only postnatally ... All this, together with our observation, ... persuades us that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." Id. at 179, 93 S.Ct. at 739.

If we were considering a Fourteenth Amendment question--which we are not--our discussion would end here, and we would reverse the trial court's denial of summary judgment to Gulf Life. However, the discussion of what constitutes a "person" for Fourteenth Amendment purposes may be different from what constitutes a "person" for insurance purposes, as evidenced by the U.S. Supreme Court's statement in Roe v. Wade: "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." Id. at 181, 93 S.Ct. at 739.

Our extensive discussion of the historical development of the law of prenatal injuries and death, while not dispositive of the issue, does illuminate vital portions of the question...