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Guyer v. Hugo Publishing Co.11/26/1991
Rehearing Denied January 6, 1992.
Certiorari Denied May 27, 1992.
LOYD GUYER AND HIS WIFE GENIVA GUYER, INDIVIDUALLY AND NEXT OF KIN OF JOHN DOE GUYER, THEIR DECEASED MINOR SON, APPELLANTS,
v.
HUGO PUBLISHING COMPANY, A CORPORATION; OKLAHOMA FARMERS MUTUAL INSURANCE COMPANY, A CORPORATION; AND, JAMES BOONE, APPELLEES.
Appeal from the District Court of Choctaw County; James R. Wolfe, Judge.
Joe A. Stamper, Antlers, for appellants.
Michael G. Smith, and Gil Steidley, McAlester, for appellees.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
MEMORANDUM OPINION
The opinion of the court was delivered by: GARRETT, Presiding Judge.
Loyd Guyer and Geniva Guyer (collectively, Guyer), individually and as next of kin of John Doe Guyer, their deceased minor son, brought an action against Hugo Publishing Company, a corporation, Oklahoma Farmers Mutual Insurance Company, a corporation, and James Boone, for injuries and damages resulting from an automobile accident. Boone was an employee of Hugo Publishing Company and was driving its pickup truck in the performance of his duties at the time of the accident. The insurance company portion of this action has been bifurcated and is not a part of this appeal.
In their Petition Guyer alleged several causes of action. The first cause of action was for the wrongful death of John Doe Guyer, a three and one half (3 1/2) month old fetus carried by Geniva Guyer at the time of the accident. She had a miscarriage one (1) month after the accident. Included in this first cause of action are medical expenses incurred, loss of anticipated services and support, loss of love and companionship, and destruction of the parent child relationship. The second cause of action was for pain and suffering and emotional distress associated with the miscarriage. The third cause of action was for loss of consortium by Loyd Guyer. The fourth cause of action was against the Insurance Company. Guyer amended the petition and added a fifth cause of action for property damage to their car. The fourth and fifth causes of action are not a part of this appeal.
Appellees answered and filed a Motion for Summary Judgment. They contend that Oklahoma does not recognize a cause of action for wrongful death of a nonviable fetus, which is a fetus incapable of living outside the uterus. They rely on Evans v. Olson, 550 P.2d 924 (Okl. 1976). Attached as evidentiary material was a deposition of Geniva Guyer stating the fetus was four and one half (4 1/2) months old at the time of the miscarriage; a pathology report calling the fetus "previable"; and a copy of Evans.
Guyer responded, also citing Evans and cases from other jurisdictions, but attaching no evidentiary materials as required by Rule 13, Rules for District Courts, 12,Ch. 2, App.
The trial court sustained Appellees' Motion and entered summary judgment. Guyer contends the trial court erred in holding that no cause of action exists for the death of a nonviable fetus and for the resultant damages, including medical expenses, loss of child (sic), pain and suffering and emotional distress of Geniva Guyer and loss of consortium by Loyd Guyer.
When reviewing a grant of summary judgment, we will examine the pleadings and evidentiary materials to determine what facts are material to the Plaintiff's cause of action and whether the evidentiary materials introduced indicate a substantial controversy as to a material fact. Ross v. City of Shawnee, 683
Page 1 2 Oklahoma Personal Injury Attorneys
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