New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

David A. Paterson
Governor

Eric R. Dinallo
Superintendent

OGC Op. No. 08-07-02

The Office of General Counsel issued the following opinion on July 1, 2008, representing the position of the New York State Insurance Department.

Re: Recovery under an automobile insurance policy for loss of fetus

Questions Presented:

1. May a woman seek damages in excess of $25,000 under a $25,000/$50,000 per person/per occurrence automobile liability insurance policy for injuries that she sustained in an automobile accident caused by the insured, in addition to the loss of a fetus for which the insurer already has agreed to pay the maximum under the policy limits?

2. If the woman gives birth prematurely as a result of an automobile accident caused by the insured and the baby dies shortly thereafter as a proximate cause of the accident, may a duly appointed representative of the decedent bring an action to seek damages against the policy on behalf of the decedent who is survived by distributees who suffered pecuniary loss as a result of the infant’s death?

Conclusions:

1. No. Any damages for all serious injuries that the woman seeks under the liability policy are subject to the $25,000 policy limit, including the loss of the fetus.

2. Yes. If the baby was born “alive,” as that term is defined in New York Public Health Law § 4130(1), and then died shortly thereafter, the baby is a “covered person” under the liability policy. Thus, an appointed representative of the decedent may bring an action on behalf of the decedent who is survived by distributees, thereby triggering the $50,000 liability limits for death.

Facts:

The inquirer represents a woman who was involved in an automobile accident when she was approximately seven months pregnant. The client seeks recovery for bodily injury under an automobile liability insurance policy, which has liability limits of $25,000/$50,000 per person/per occurrence – the minimum liability coverage required in New York State. The inquirer asks whether the “loss of fetus” will serve to “double the policy” – that is, whether the loss of the fetus triggers recovery on behalf of two people under the policy. The inquirer also asks whether the policy will “double” if the baby is born alive then subsequently dies at the hospital.

In clarifying the inquiry regarding “doubling the policy”, the inquirer acknowledges that the insurer has agreed that the client is entitled to receive up to $25,000 for serious injury as a result of the loss of the fetus pursuant to Insurance Law § 5102(d). However, the inquirer asks whether the client may receive additional amounts under the policy for other “serious” injuries she sustained as a result of the accident. The inquirer also reports that the baby might have “drawn a breath” prior to dying, and asks whether the mother may seek damages under the policy as a result of the infant’s death.

Analysis:

Insurance Law §§ 5104(a) and 5102(d) are relevant to this inquiry. Insurance Law § 5104, which governs causes of action for personal injury, permits a person to initiate a lawsuit to recover non-economic loss from injuries sustained in an automobile accident only after meeting the “serious injury” threshold prescribed in New York’s no-fault statute – Article 51 of the Insurance Law. Insurance Law § 5104(a) reads in part as follows:

Notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss. (Emphasis added).

Insurance Law § 5102(d) defines “serious injury” as follows:

“Serious injury” means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined inquiry or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment. (Emphasis added).

Moreover, the automobile liability policy under which a plaintiff may recover for non-economic loss must contain certain minimum provisions, particularly with respect to policy limits, as prescribed in Vehicle and Traffic Law § 311(4)(a) and Subpart 60-1 of the New York Codes Rules and Regulations (“NYCRR”), tit. 11 (Regulation 35-A). 11 NYCRR § 60-1.1 reads in relevant part as follows:

An “owner’s policy of liability insurance”, as defined in section 311 of the Vehicle and Traffic Law, shall contain in substance the following minimum provisions or provisions which are equally or more favorable to the insured and judgment creditors, so far as such provisions relate to judgment creditors:

(a) Insurance against loss from the liability imposed by law upon the insured for damages, including damages for care and loss of services, because of bodily injury, sickness, disease or death sustained by any person and because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the ownership, maintenance, use or operation of a specific motor vehicle or motor vehicles within the State of New York, or elsewhere in the United States, in North America or Canada, subject to limits, exclusive of interest and costs, with respect to each such motor vehicle of $25,000 because of bodily injury, sickness or disease of any one person who does not die as a result of any one accident, and $50,000 because of bodily injury, sickness or disease of any one person who dies as the result of any one accident; . . . (Emphasis added).

Further, Estates, Powers and Trusts Law (“EPTL”) § 5-4.1(1) permits a personal representative of a decedent to bring an action for a wrongful act, neglect or default that causes the death of the decedent. That provision states in pertinent part that:

The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued. Such an action must be commenced within two years after the decedent’s death; . . .

In this case, the mother’s loss of a fetus as a result of an automobile accident meets the “serious injury” no-fault threshold that would enable her to bring an action for non-economic loss pursuant to Insurance Law § 5104(a). See Mesimeris v. U.S. 2006 WL 148911 (E.D.N.Y. 2006), aff’d 215 Fed.Appx. 42, 2007 WL 295478 (2d Cir. Jan. 26, 2007). New York courts have strictly construed the “serious injury” requirement in Insurance Law § 5102(d) in an attempt to minimize the number of automobile personal injury lawsuits filed in court. See, e.g., Zabel v. Olsen, et al., 895 F.Supp 44 (N.D.N.Y. 1995); Goodkin v. U.S., 773 F.2d 19 (2d Cir. 1985). The courts also have stated that the Legislature intended that the loss of a fetus should be viewed as a serious injury to the mother. See Doyle v. Van Pelt, 189 Misc.2d 67, 730 N.Y.S.2d 417 (Sup. Ct. Madison Co. 2001), (“the amendment [to the Insurance Law] evidences a belief, on the part of the Legislature, that the loss of a fetus, stemming from a motor vehicle accident, constitutes an “injury” to the plaintiff [mother] (were it not so, it could not be “serious” injury”)).

The policy that the inquirer described has a maximum liability limit of $25,000 for all bodily injuries sustained by an individual. Thus, if the insurer agrees to pay the inquirer’s client $25,000 for serious injury as a result of the loss of her unborn child, the policy limits will be exhausted and any other qualifying serious injuries arising out of the same accident will not be covered under the policy.

As a separate matter, courts in New York have consistently rejected wrongful death actions brought on behalf of a stillborn fetus, finding that no cause of action lies to recover damages on behalf of an unborn child. See, e.g., Endresz v. Friedberg, 24 N.Y.2d 478 (1969) (stating that “before there may be a ‘decedent’, there must, perforce, be birth, a person born alive, and, . . . it is fairly certain that the Legislature did not intend to include an ‘unborn’ fetus within the term ‘decedent’” in precluding a wrongful death action on behalf of a stillborn fetus); Maher v. Yoon, 297 A.D.2d (2nd Dept. 2002). However, where the baby was born “alive” (as that term is defined in New York Public Health Law § 4130(1))1 and then died (even shortly thereafter) as a proximate result of the automobile accident, a duly appointed personal representative of the decedent who is survived by distributees may bring a wrongful death action on behalf of decedent. See, e.g., James v. Middletown Community Health Ctr., Inc., 278 A.D.2d 280 (2nd Dept. 2000); Ferreira v. Wyckoff Heights Medical Ctr., (Civ. Ct. Kings Co. 2006).

Thus, if the baby was born alive and then died shortly thereafter,2 and therefore constitutes a “covered person” under the liability policy, the infant decedent’s duly appointed personal representative may bring an action on behalf of the decedent whose distributees suffered pecuniary loss as a result of the death. While there is no limit to the amount of damages that the personal representative may seek, any recovery sought under the liability policy in question would be subject to the $50,000 policy limit for the death of one person.

For further information you may contact Senior Attorney Camielle A. Campbell, at the New York City office.

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1 Public Health Law § 4130(1) defines “live birth” as “the complete expulsion or extraction from its mother of a product of conception, irrespective of the duration of pregnancy, which, after such separation, breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached; each product of such a birth is considered live born.”

2 Whether the baby was born “alive” is a factual matter to be proven in a court of competent jurisdiction. The Insurance Department takes no position on the matter in this case.