Stokes v. Liberty Mut. Ins. Co.

• Decision Date: 10 July 1968
• Docket Number: No. 36839,36839
• Citation: 213 So.2d 695
• Court: Florida Supreme Court
• Parties: Maerine STOKES, Individually, and Arthur Lee Stokes, Petitioners, v. LIBERTY MUTUAL INSURANCE COMPANY, a Massachusetts corporation authorized to do business in the State of Florida as an insuror, and the American Arbitration Association, a New York corporation, Respondents.

Page 695

213 So.2d 695

Maerine STOKES, Individually, and Arthur Lee Stokes, Petitioners, v. LIBERTY MUTUAL INSURANCE COMPANY, a Massachusetts corporation authorized to do business in the State of Florida as an insuror, and the American Arbitration Association, a New York corporation, Respondents.

No. 36839.

Supreme Court of Florida.

July 10, 1968.

Rehearing Denied Sept. 23, 1968.

Fuller & Brumer, Bolles, Goodwin & Ryskamp, Miami, for petitioners.

Blackwell, Walker & Gray and James E. Tribble, Miami, for respondents.

Howard Hadley, Gainesville, of Law Offices of Philip Barton, Gainesville, amicus curiae.

THORNAL, Justice.

By certiorari we review a decision of a district court of appeal which passes upon a question of great public interest according to the accompanying certificate which brings with it our jurisdiction to decide the matter. Fla.Const. Art. V, § 4(2), F.S.A.; Stokes v. Liberty Mutual Insurance Co., 202 So.2d 794 (3d Dist.Ct.App.Fla.1967).

The question which we must answer is suggested by the certificate: Whether parents have a cause of action under the Wrongful Death of Minors Act, Fla. Stat. § 768.03 (1965), F.S.A., for the death of a stillborn child resulting from prenatal injuries.

In the circuit court Liberty Mutual sought a declaratory decree. It named as defendants Maerine Stokes and her husband, Arthur Lee Stokes. Also included was the American Arbitration Association. It was alleged that the Stokes had sought arbitration before the Association pursuant to the terms of an uninsured motorist clause in an automobile policy issued to them by Liberty. The Stokes based their claim on Fla. Stat. § 768.03 (1965), F.S.A., alleging the wrongful death of a stillborn child as a result of the negligence of an uninsured motorist. In the trial court it was stipulated that: (1) Mrs. Stokes was about seven months pregnant at the time of the accident on February 27, 1965, and, (2) the question of the viability of the fetus was Immaterial to a determination by the chancellor. The stillbirth occurred on March 4, 1965. The Stokes filed a demand for arbitration by the Association. They claimed damages for injuries to Mrs. Stokes. Our present problem, however, stems from their alleged parental claim for the wrongful death of the fetus based upon Fla. Stat. § 768.03, F.S.A., supra.

The chancellor entered a final decree which: (1) held that recovery for the death of the stillborn fetus could not be accomplished under § 768.03, supra; (2) permanently enjoined the Stokes from further prosecuting their alleged claim based upon the death of the fetus; and (3) permanently enjoined the Association from entering any award against Liberty based upon such a claim. On appeal the Third District Court of Appeal affirmed. Stokes v. Liberty Mutual Insurance Co., supra.

The case presents a problem of initial impression in Florida. However, our jurisdiction derives from the petition for certiorari buttressed by the so-called 'certificate of great public interest'. We, therefore, proceed directly to the merits.

For clarity of presentation, we provide at the outset definitions of certain words that will appear with some frequency. We take these definitions from Stedman's Medical Dictionary, (2nd lawyers' ed. 1966). They are as follows:

(1) Fetus--'(The) product of conception from the end of the eighth week to the moment of birth.'

(2) Stillborn--'Born dead.'

(3) Viable--'Capable of living; denoting a fetus sufficiently developed to live outside of the womb.'

(4) Viability--'Capable of living; the state of being viable;'

(5) Quick--'Pregnant with a child the movement of which is felt.'

For similar definitions reference may be had to Dorland's Illustrated Medical Dictionary (24th ed. 1965).

It is agreed that the Stokes must recover, if at all, on the right of action created by § 768.03, supra, which reads in part as follows:

(1) Whenever the death of any minor child shall be caused by the wrongful act, negligence, carelessness or default of any individual * * * the father of such Minor child, or if the father be not living, the mother may maintain an action against such individual * * * and may recover, not only for the loss of services of such Minor child, but in addition thereto, such sum for the mental pain and suffering of the parent (or both parents) if they survive, as the jury may assess.' (Emphasis added).

The crux of our problem is immediately apparent. We must decide whether a stillborn fetus, prenatally injured by negligence, is a Minor child within the contemplation of § 768.03. If it is, then the Stokes have a cause of action. If it is not, then the chancellor ruled correctly and the decision of the District Court should be approved.

It is not inappropriate to consider the nature of the action created by § 768.03. It is a new and independent cause of action, unknown to the common law. It recognizes the basic relationship between parent and child. It is not a derivative action in a technical sense because it awards damages suffered by the parent independently of any right of action in the deceased minor. Latimer v. Sears, Roebuck & Co., 285 F.2d 152, 86 A.L.R.2d 307 (5th Cir. 1961); Klepper v. Breslin, 83 So.2d 587 (Fla.1955); Nolan v. Moore, 81 Fla. 594, 88 So. 601 (1921).

Nolan v. Moore, supra, reminds us that since the statute is remedial in nature it should be construed so as to afford the remedy clearly intended. On the other hand, it should not be extended to create rights of action not within the intent of the lawmakers as reflected by the language employed when aided, if necessary, by any applicable rules of statutory construction. Klepper v. Breslin, supra.

The Stokes did not proceed under Fla. Stat. § 45.11, F.S.A., our so-called 'survival statute'. There, with limited exceptions, an action for a personal injury survives the injured party and may be maintained in the name of his personal representative. The action under § 45.11 is derivative because the representative recovers only such damages as were suffered by his decedent.

Similarly, the Stokes do not claim under Fla. Stat. § 768.01, F.S.A., our general 'death by wrongful act' statute. Conceivably this would be possible if they could: (1) establish a stillborn fetus as 'any person' under the statute; and (2) have someone appointed administrator of this so-called 'person' so as to be able to bring the action in the order of priority fixed by Fla. Stat. § 768.02, F.S.A. The action created by § 768.01 appears to be derivative because it gives a right of action in certain situations which would have entitled 'the party injured' to sue if death had not ensued. However, under § 768.02 the recoverable damages are those suffered by the party entitled to sue in his own right regardless of damages recoverable by the decedent. Hence the derivative aspect disappears.

We are not here called upon to determine whether the stillborn fetus is a 'person' or a 'party' under the last two cited sections. The Stokes, rather, insist that a fetus qualifies as a 'minor child' under § 768.03.

Some aspects of our instant problem should be recalled. They are:

(1) The parties stipulated that viability of the fetus is immaterial. In some states, where recovery has been allowed, viability is a critical element.

(2) The fetus was stillborn. This is not a case where the infant survived delivery and achieved the life and personality of a living person, even for a short time.

(3) We are not here concerned with the right of Mrs. Stokes to recover for her own personal injuries--including the pain and anguish of miscarriage.

(4) Here, the father sues to recover for the death of an alleged 'minor child' in the form of a stillborn, seven month old fetus. He seeks damages for the loss of services of the 'minor' and for the mental pain and suffering of his wife and himself.

Certain judicial landmarks plot the development of the concept of liability for prenatal injuries.

The seed of a rule of potential liability for the wrongful death of a fetus was revealed in Dietrich v. Inhabitants of Northampton, 138 Mass. 14, 52 Am.Rep. 242 (1884). A four to five month non-viable fetus was prematurely delivered. Justice Holmes held that the fetus was a part of the mother and not a 'person' under the Massachusetts statute. The fetus was not a separate human being. In this view, only the mother suffered damage, and she could recover solely on this basis.

In Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E. 638 (1900), the Supreme Court of Illinois denied a right of action to a surviving child who claimed that he had been injured during the latter days of his prenatal development. Denial was based on the Holmes precedent and fear of fraudulent claims. The significant dissent of Justice Boggs, however, was the beginning of the rule allowing recovery of a child born alive but who had suffered an injury prenatally during the period of viability.

It was not until Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C.1946) that the Boggs view finally gained acceptance. Here, Bette Bonbrest, who survived, was allowed to recover for injuries allegedly received in a negligent delivery. Dietrich was distinguished on the ground that the fetus there was nonviable. The Bonbrest court took note of the posthumous property rights of an unborn child and of the medical advances in detecting viability to establish fetal identity separate from the mother.

The Bonbrest rule has gained extensive modern acceptance. It should be emphasized that this rule of liability requires: (1) injury during the period of fetal viability; and (2) the child must Survive to maintain its Own action. Georgia, in Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 93 S.E.2d 727 (1956), permits recovery by a surviving child for an alleged prenatal injury at anytime subsequent to conception regardless of viability. There seems to be some tendency in this direction. Even so, it is required that the child be born alive. Torigian...