Wisconsin Judge: Man Can Sue for Death of Unborn Child
An insurance company might have to pay for the death of an unborn child caused by a 2003 traffic crash, after an appellate court reversed a Wood County Circuit Court decision Thursday.
On Feb. 13, 2003, Alicia M. Vander Meulen, then 19 of Arkdale, was pregnant when she was involved in a two-vehicle crash with a pickup truck driven by Brett R. Anderson, then 17 of Wisconsin Rapids, on Eighth Street South. As a result of the crash, Vander Meulen’s unborn child was stillborn, according to court documents.
In February 2004, Shannon E. Tesar, the unborn child’s father, filed a wrongful death suit against Anderson and American Family Insurance, the insurance company for both drivers. On July 23, 2009, Wood County Circuit Court Judge Edward Zappen Jr., now retired, granted a motion from American Family Insurance to dismiss the company from liability in the case. Thursday’s appellate court decision reverses Zappen’s ruling and sends the case back to Circuit Court.
University of Wisconsin-Madison Law Department Professor Peter Cartensen said he had not yet read the appellate court decision. However, injury or wrongful death lawsuits involving unborn children are fairly common, he said.
American Family Insurance probably will try to appeal the case to the state Supreme Court to ask it to review the decision, Cartensen predicted. Depending on what claims the suit is making, caps on restitution most likely would keep any payment from being burdensome to an insurance company. However, the number of future claims that could be filed would make it beneficial for the company to appeal, he said.
Tesar filed a claim under Vander Meulen’s insurance policy, according to court documents. In his wrongful death suit, Tesar claimed that both drivers were partially negligent, resulting in the death of the unborn baby. Zappen said it was a slippery slope to allow the lawsuit to proceed against the insurance company under Vander Meulen’s policy.
The District IV Court of Appeals opinion released Thursday addressed the arguments made by American Family Insurance attorneys. The company said the injury is too remote from the negligence, according to the decision. The court said deaths from automobile crashes are common and, although not as common, the death of a fetus is not remote from the negligence of the drivers.
The insurance company also said the case could open the way for fraudulent claims. The court’s opinion, however, stated there is no reason to suppose people will fake fetal deaths resulting from automobile crashes.
Insurance company attorneys recognized that — for the purposes of state statutes — a viable fetus is a person.