Miller v. Highlands Ins. Co., 75--1446
| Decision Date | 06 August 1976 |
| Docket Number | No. 75--1446,75--1446 |
| Citation | 336 So.2d 636 |
| Parties | Kathryn MILLER et al., Appellants, v. HIGHLANDS INSURANCE COMPANY et al., Appellees. |
| Court | Florida District Court of Appeals |
Gilbert A. Haddad and Peter A. Miller of Preddy, Haddad, Kutner, Hardy & Josephs, Miami, for appellants.
Samuel Tyler Hill of Hinckley & Shores, Fort Lauderdale, for appellees Allstate and Stern.
This is an appeal from the trial court's order dismissing with prejudice, for failure to state a cause of action, the claim of Kathryn Miller, as personal representative of her deceased unborn child.
The material facts alleged in the complaint are as follows: Kathryn Miller was a passenger in an automobile which was involved in an accident. At the time of the accident she was seven or more months pregnant with the child of her husband. The unborn child was viable, capable of sustaining its own life outside the womb, and would have survived but for the accident. As a direct and proximate result of the defendant's negligence the unborn child was killed.
In determining whether the complaint states a cause of action, the trial court and this court on appeal must assume all the well-pleaded allegations of the complaint to be true. Hopke v. O'Byrne, 148 So.2d 755 (Fla.1st DCA 1963).
The Probate Division of the Circuit Court of Broward County appointed Kathryn Miller to be personal representative of her deceased unborn child. In her representative capacity she claims compensation on behalf of herself and her husband pursuant to the 'Florida Wrongful Death Act', Sections 768.16--768.27, Florida Statutes (1973).
An action for wrongful death is entirely a creature of statute, being unknown to common law. If Kathryn Miller and her husband have a cause of action for the wrongful death of their unborn, viable child it must be based on § 768.19, which provides:
'When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person or watercaft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony.'
The primary issue on this appeal, and the question which we must first decide, is whether an unborn, viable child, killed as a direct and proximate result of another's negligence, is a 'person' within the intent of § 768.19. If so the parants have a cause of action and the trial judge should not have dismissed the complaint. If not, the trial judge was correct and should be affirmed.
The Florida Supreme Court has not ruled on this point. In Stokes v. Liberty Mutual Insurance Co., 213 So.2d 695 (Fla.1968), the Supreme Court held a stillborn fetus not to be a Minor child within the contemplation of the former 'Wrongful Death of a Minor Act', Section 768.03, Florida Statutes (1965) 1, and denied recovery to the parents of a stillborn fetus. The holding of Stokes does not control the present case. As pointed out by the Supreme Court:
(At 697.)
'We are not here called upon to determine whether the stillborn fetus is a 'person' . . . under the last two cited sections.' (At 698.)
(At 700.)
A condition of recovery under § 768.19 is that '. . . the event would have entitled the person injured to maintain an action and recover damages if death had not ensued . . .' We first consider whether under Florida law the Miller child, if it had survived and had been born alive, would have been entitled to maintain an action and recover damages for its prenatal injuries. A similar question has recently been considered by the Second District Court of Appeal in the case of Day v. Nationwide Mutual Insurance Co., 328 So.2d 560 (Fla. DCA 1976). In a well reasoned opinion the Second District held that a child born alive, having suffered prenatal injuries at any time after conception, has a cause of action against the tortfeasor. Our determination in this case does not have to be as broad. For the purposes of this appeal we assume that the unborn child at the time of its prenatal injury was viable. However, we accept the rationale of Day v. Nationwide Mutual Insurance Co., supra, and hold that the Miller child, if it had survived and had been born alive would have been entitled to maintain an action and recover damages for its prenatal injuries.
We now reach the crucial question of whether an unborn but viable child is a 'person' within the meaning of § 768.19. The Supreme Court in Stokes, supra, pointed out that the first American case allowing recovery for the wrongful death of a viable, stillborn fetus was Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838 (1949). Thereafter divergent views developed and the court in Stokes, supra, at page 699, was able to cite numerous cases from other jurisdictions, one group holding that a viable fetus is a person and the other holding that a viable fetus is not a person. The passage of time has not closed the gap.
Additional cases which allow a cause of action for the death of a viable, unborn child are: Simmons v. Howard University, 323 F.Supp. 529 (D.D.C.1971); Chrisafogeorgis v. Brandenberg, 55 Ill.2d 368, 304 N.E.2d 88 (1973); Orange v. State Farm Mutual Automobile Insurance Co., 443 S.W.2d 650 (Ky.1969); Rice v. Rizk, 453 S.W.2d 732 (Ky.App.1970); O'Neill v. Morse, 385 Mich. 130, 188 N.W.2d 785 (1971); Libbee v. Permanente Clinic, 268 Or. 258, 518 P.2d 636 (1974); Baldwin v. Butcher, 155 W.Va. 431, 184 S.E.2d 428 (1971); Panagopoulous v. Martin, 295 F.Supp. 220 (S.D.W.Va.1969); Britt v. Sears, 150 Ind.App. 487, 277 N.E.2d 20 (1971); Toth v. Goree, 65 Mich.App. 296, 237 N.W.2d 297 (1971).
The view that a cause of action for the death of a viable, unborn child is not maintainable is supported by the following additional cases: Bayer v. Suttle, 23 Cal.App.3d 361, 100 Cal.Rptr. 212 (1972); McKillip v. Zimmerman, 191 N.W.2d 706 (Iowa 1971); Leccese v. McDonough, 361 Mass. 64, 279 N.E.2d 339 (1972); Henry v. Jones, 306 F.Supp. 726 (D.Mass.1969); Endresz v. Friedberg, 24 N.Y.2d 478, 301 N.Y.S.2d 65, 248 N.E.2d 901 (1969); Lawrence v. Craven Tire Co., 210 Va. 138, 169 S.E.2d 440 (1969); Justus v. Atchison, 126 Cal.Rptr. 150 (Ct.App.2d Dist.1975).
The reasons advanced by the various courts allowing a cause of action for the wrongful death of a viable, unborn child can be summarized as follows: A viable fetus in a human being. A living human being, born or not, is a person, and so is within statutes using the term 'person' in an appropriate context. A human life is destroyed when a viable fetus is killed, for when viable the child is capable of independent existence outside the womb, and it is irrational to allow liability for the death of a person to hinge on whether the fatal injuries occur just before or just after birth. It is unjust to permit recovery for prenatal injuries only if they are not so severe as to cause death; such a situation favors the wrongdoer who causes death over the one who merely causes injuries, and so enables the tortfeasor to foreclose his own liability. The trend is toward allowing recovery for prenatal injuries to viable children. (See 15 A.L.R.3d 992, 994.)
The arguments generally enlisted by the courts denying the right to maintain an action for the wrongful death of a viable unborn child are these: An unborn child is not a person, but rather is only a part of its mother and so has no jurisdical existence. At common law a child born dead could not maintain an action for prenatal injuries. When the child is killed by, rather than surviving, its injuries, there is no basis for recovery based on deformities, disabilities, increased parental responsibilities, and the like. When the unborn child is killed there is no way to compute hypothetical future benefits to beneficiaries, nor is there evidence from which to infer monetary loss to the survivors; damages would be punitive, contrary to the intent of the wrongful death statutes, and against public policy. (See 15 A.L.R.3d 992, 994.)
Basically the same arguments on both sides of the question have been made by the parties to this appeal. In determining which of the conflicting views to accept we must give appropriate weight to § 768.17, which provides:
Accordingly, in construing this statute we should not impute to the Legislature a narrow and restrictive intent. If the Legislature had intended to exclude a viable, unborn child from the meaning of the word 'person' we believe that it would have expressly done so. Since it did not, we conclude that the Legislature used the word 'person' in a broad and unrestrictive sense, intending to include a viable, unborn child. As stated by the Supreme Court in McKibben v. Mallory, 293 So.2d 48 (Fla.1974):
'. . ., our view is that when the new wrongful death...
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