Miccolis v. AMICA Mut. Ins. Co., 89-408-A

• Decision Date: 01 March 1991
• Docket Number: No. 89-408-A,89-408-A
• Parties: Eileen MICCOLIS, p.p.a. Jane Doe Miccolis (a viable fetus who died intestate, in ventre sa mere) v. AMICA MUTUAL INSURANCE COMPANY et al. ppeal.
• Court: Rhode Island Supreme Court

Page 67

587 A.2d 67

Eileen MICCOLIS, p.p.a. Jane Doe Miccolis (a viable fetus who died intestate, in ventre sa mere)

v.

AMICA MUTUAL INSURANCE COMPANY et al.

No. 89-408-Appeal.

Supreme Court of Rhode Island.

March 1, 1991.

Richard A. Ciccone, Ciccone & Coughlin Law Associates, Inc., Providence, for plaintiff.

Paul V. Reynolds, Boyer, Reynolds & DeMarco, David Whitman, Michele Lataille, Hanson, Curran & Parks, Providence, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on the plaintiff's appeal from partial summary judgment entered in the Superior Court on behalf of the three defendants. We affirm. The facts of the case insofar as they are pertinent to this appeal are as follows.

On August 7, 1985, plaintiff Eileen Miccolis was a passenger in a motor vehicle owned and operated by defendant Raymond C. Ruggieri that collided with another vehicle operated by defendant James J. Kiley. As a result of this accident plaintiff filed a complaint in Providence County Superior Court on August 2, 1988, against defendant AMICA Mutual Insurance Company (AMICA) (based upon the uninsured/underinsured provisions of her own insurance policy) in addition to defendants Ruggieri and Kiley, for their alleged negligence in causing the collision. In addition to claiming damages for her own personal injuries, in count 2 of her complaint plaintiff sought damages for the wrongful death of her five-week old fetus.

Relying upon the complaint, the answers to interrogatories, and the affidavit of Dr. Donald Ross Coustan, defendant AMICA filed a motion for summary judgment on count 2 of plaintiff's complaint. The defendants Ruggieri and Kiley filed similar motions.

Although plaintiff admitted that conception had occurred approximately five weeks prior to the accident, her complaint alleged the wrongful death of a "viable fetus." Doctor Coustan, who is the director of the Division of Maternal-Fetal Medicine at Women and Infants Hospital of Rhode Island, refuted the contention that a fetus is viable at five weeks. In his affidavit, he stated that "any fetus which has a gestational age of less than 20 weeks or which has a fetal weight of less than 500 grams is non-viable, that is, it does not have a reasonable potential for subsequent survival if it were to be removed from the uterus." Doctor Coustan based his opinion upon statutory rules, his education and experience, and reliable and reputable texts such as Williams Obstetrics (17th ed.1985), which defines viability as identifying "a reasonable potential for subsequent survival if the fetus were to be removed from the uterus." Doctor Coustan indicates that even if plaintiff was pregnant, at five weeks gestation the fetus was not viable and did not have the potential for subsequent survival outside the uterus. Although Dr. Coustan attributed the positive pregnancy test to a blighted ovum (a fertilized ovum in which development has become arrested) rather than a pregnancy with a healthy fetus, we are required to view the facts in the light most favorable to the plaintiff when considering a defendant's motion for summary judgment and we shall therefore assume, without deciding, that plaintiff was five weeks pregnant at the time of the accident for purposes of this opinion.

Summary judgment was entered in favor of all three defendants in respect to count 2 at a hearing held on June 13, 1989. After examining the record and the testimony of plaintiff, the trial justice determined that the fetus was not viable and that in light of Presley v. Newport Hospital, 117 R.I. 177, 365 A.2d 748 (1976), there could be no recovery on a wrongful-death claim. The plaintiff filed this appeal on June 23, 1989.

The sole question to be decided on this appeal is whether a nonviable five-week-old fetus is a "person" for purposes of our wrongful-death statute. Rhode Island's wrongful-death statute, G.L.1956 (1985 Reenactment) § 10-7-1, provides in pertinent part:

"Liability for damages for causing death.--Whenever the death of a person shall be caused by the wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who, or the corporation which, would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured."

The plaintiff maintains that the term "person" as used in the act should be expanded to include a nonviable fetus. She argues that viability is not a relevant consideration in the context of the wrongful-death statute. This contention is based in part upon plaintiff's belief that Sylvia v. Gobeille, 101 R.I. 76, 220 A.2d 222 (1966), which eliminates viability requirements for children who are injured prenatally but are subsequently born alive, must also eliminate viability considerations for injuries that result in fetal death. Plaintiff argues that it would be "logically inconsistent" to disregard viability in one situation and not in the other. We disagree.

Sylvia, constituted a departure from a general rule enunciated by our court in Gorman v. Budlong, 23 R.I. 169, 49 A. 704, 55 A.L.R. 118 (1901). In that case we followed an opinion written by Justice Holmes for the Massachusetts Supreme Judicial Court in Dietrich v. Inhabitants of Northhampton, 138 Mass. 14 (1884). The holding in Gorman and Dietrich was to the effect that regardless of the viability of the fetus, or whether the fetus was born alive, a negligence action may not be maintained on its behalf, nor may the next-of-kin maintain a wrongful death action for prenatal injuries.

In Sylvia, we specifically overruled Gorman to the extent that it stood for the principle that there may be no recovery for prenatal injuries, even though the child is born alive. In Sylvia, a child who was injured in utero prior to viability was subsequently born alive, bearing the personal injuries that resulted from defendant's negligence in failing to prescribe a particular drug. This court was not called upon to decide if and when a fetus qualified as a "person," entitled to legal rights and privileges, since there was a child born alive, albeit injured, who was bringing the action through her father and next friend. Rather we were called upon to determine the role of viability at the time of the injuries. We decided that a child born alive has a right to bring suit against one who has negligently inflicted prenatal injuries, regardless of the child's viability when the injuries were sustained. Our primary reason for that ruling was to "protect a child's right to commence life unhampered and unimpaired by damage negligently caused to his body or mind by another." Sylvia v. Gobeille, 101 R.I. at 78, 220 A.2d at 223. Once the child is born alive, an injury inflicted prior to viability is no less actionable than one sustained after viability. Id. See Kalafut v. Gruver, 239 Va. 278, 389 S.E.2d 681 (1990) and Labree v. Major, 111 R.I. 657, 306 A.2d 808 (1973) (citing both Rhode Island and Massachusetts law in respect to a child born alive).

In the present case the injured fetus was not subsequently born alive. Therefore, if the line between nonliability and liability for...