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State Farm Mutual Automobile Insurance Co. v. Naomi Luebbers6/14/2005
held that a viable fetus is not a "human being" within the meaning of the vehicular homicide statute and also noted that, under the common law, "until born alive there was no human being," id. at 773-74, 652 P.2d at 1224-25 (majority opinion and Wood, J., specially concurring); Salazar v. St. Vincent Hospital, 95 N.M. 150, 153, 619 P.2d 826, 829 (Ct. App. 1980), holding that a viable fetus was a "person" within the meaning of the New Mexico Wrongful Death Act; and Neeley v. Union Potash & Chemical Co., 47 N.M. 100, 109, 137 P.2d 312, 317 (1943), stating that a viable fetus falls within the meaning of the term "dependent" under the New Mexico Workers' Compensation Act.
Luebbers concedes that a non-viable fetus that does not survive a prenatal injury has no right of action. But she argues that Brian Jr. survived and lives, thereby rebutting any presumption against viability. Luebbers relies on the Miller Court's observation that " urrently, every jurisdiction allows a right of recovery for prenatal injuries provided the child survives." Miller, 120 N.M. at 656, 905 P.2d at 196. Brian Jr.'s survival does play a role, but it is different than that contemplated by the Miller quote.
New Mexico appellate courts have not addressed specifically the issue of whether a surviving child, injured prenatally, is an insured at the time of his injury. New Mexico has only had occasion to address wrongful death claims for children who died as a result of prenatal injuries. Id.; see also Salazar, 95 N.M. at 153, 619 P.2d at 829 (holding that the law in New Mexico recognized viable fetuses as persons at the time New Mexico's Wrongful Death Act was adopted and recognizing a wrongful death claim for the death of a viable fetus). The factual differences between this case and Miller and Salazar are obvious. Miller and Salazar involved fatal bodily injuries suffered by the fetus in utero. Brian Jr. did not suffer a bodily injury, was born alive, and continues to live. Thus, the historical, medical, and legal issues surrounding the legal status of fetuses that gave rise to the issue of viability in Miller and Salazar are not present here.
Brian Jr. seeks recovery for loss of his Father's parental society and consortium. Given the nature of the claim for loss of consortium, Brian Jr.'s injury could only occur and damages accrue after his successful birth and survival. As the Supreme Judicial Court of Massachusetts noted in a case similar to ours:
If the viability of the fetus is not dispositive in cases of prenatal injury when the infant is born alive, then viability should not be dispositive in cases, such as the present one, where the alleged injury occurred after birth. The time in which the fetus became viable has no connection with the injury allegedly suffered by the child. Thus, viability of the fetus at the time of injury to the parent should not be the dispositive issue in separating those children who may recover for loss of consortium from those who may not.
Angelini v. OMD Corp., 575 N.E.2d 41, 45 (Mass. 1991). Angelini held that "a child who was (1) conceived before his or her parent suffered non-fatal injuries caused by the negligence of a defendant, and (2) subsequently born alive, is not as matter of law precluded from recovering for loss of parental consortium". Id. at 45-46.
The same concept was recognized by the Ninth Circuit Court of Appeals in Crumpton v. Gates, 947 F.2d 1418 (9th Cir. 1991). Crumpton involved a claim by a surviving child under 42 U.S.C. ยง 1983 for loss of his liberty interest in familial relations with his father. Crumpton, 947 F.2d at 1419. Young Crumpton was a two-month-old fetus when his father was killed by the poli
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