NATIONAL CAS. COMPANY v. NORTHERN TRUST BANK OF FL, NA,, 3D00-3023.

• Decision Date: 19 December 2001
• Docket Number: No. 3D00-3023.,3D00-3023.
• Citation: 807 So.2d 86
• Parties: NATIONAL CASUALTY COMPANY, Appellant, v. NORTHERN TRUST BANK OF FLORIDA, N.A., as guardian of the property of Kara Goodman, a minor, incompetent; Lisa Goodman, a minor through her legal guardians and parents, Barbara Goodman and Terry Goodman; Barbara Goodman, individually; Terry Goodman, individually; Lourdes Hainlin, and The Miami Jewish Home & Hospital for the Aged, Inc., Appellees.
• Court: Florida District Court of Appeals

807 So.2d 86

NATIONAL CASUALTY COMPANY, Appellant, v. NORTHERN TRUST BANK OF FLORIDA, N.A., as guardian of the property of Kara Goodman, a minor, incompetent; Lisa Goodman, a minor through her legal guardians and parents, Barbara Goodman and Terry Goodman; Barbara Goodman, individually; Terry Goodman, individually; Lourdes Hainlin, and The Miami Jewish Home & Hospital for the Aged, Inc., Appellees.

No. 3D00-3023.

District Court of Appeal of Florida, Third District.

December 19, 2001.

Rehearing Denied February 27, 2002.

Conroy, Simberg & Ganon, Fort Myers; Robert S. Glazier, Miami, for appellant. Medvin, Tropp and Joshua D. Medvin, Coral Gables; Searcy, Denney, Scarola, Barnhart, & Shipley, West Palm beach; Caruso, Burlington, Bohn & Compiani and Barbara Compiani, West Palm Beach, for appellees.

Before COPE, FLETCHER and RAMIREZ JJ.

COPE, J.

The question presented is whether a child has a cause of action against his or her mother, based on the mother's prenatal negligence which led to an automobile accident, occasioning prenatal injury. We conclude that the cause of action does exist under the circumstances of this case.

While appellee Barbara Goodman was seven months pregnant, she was involved in an automobile accident. For present purposes it is taken as an established fact that Ms. Goodman was partially at fault in the automobile accident. There was injury to the fetus, which was delivered the next day.

Northern Trust Bank of Florida, N.A., was appointed guardian of the minor child, Kara Goodman. Northern Trust filed suit against Ms. Goodman, among others, for negligent driving, leading to the collision and serious injury to the unborn child. National Casualty Company issued the automobile insurance policy which covers Ms. Goodman for this accident.

National Casualty brought a declaratory judgment action arguing that no cause of action should be recognized for a child against that child's mother, based on the mother's prenatal negligence. The trial court ruled that Florida would recognize such a claim. This appeal follows.

In our view, the determination by the trial court that the cause of action exists (to the extent of insurance coverage) is a logical extension of existing Florida law. We agree with Judge Gerstein's opinion, which states:

Florida has applied the Born Alive Doctrine to allow a lawsuit premised in tort against a third party [for] negligently inflicting pre-natal personal injury, after the child is born alive. Day v. Nationwide Mut. Ins. Co., 328 So.2d 560 (Fla. 2d DCA 1976). Florida law also allows an unemancipated minor child to maintain a negligence action against a parent to the extent of the parent's available liability insurance coverage. Ard v. Ard, 414 So.2d 1066 (Fla.1982). Since a child born alive may maintain a cause of action against a third party for injuries sustained in utero, and a child may sue her mother in tort for negligence, it follows that a child born alive may maintain a cause of action against her mother based upon the negligence of the mother

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