Death of Viable Fetus
I represent a woman who was pregnant at the time of the wreck and the unborn baby was killed. Can claim be made for the unborn baby under the tortfeasor’s liability and her UM, and are those claims separate from the claims of the mother for her own injuries?
Answer: You can recover under Oklahoma law for the unborn baby. See: Evans v. Olson, 1976 OK 611, 550 P.2d 924: Wrongful death action existed for death of unborn viable child; Nealus v. Baird, 1999 OK 98, 996 P.2d 438: also for non-viable child born alive; finally, 12 O.S. § 1053(F): Wrongful death action extends to fetus of any age. The question whether the claim for the death of the fetus triggers a separate liability or UM limit is, I think, unsettled under Oklahoma law. See: 15 ALR4th 548 entitled “Unborn Child as Insured or Injured Person Within Meaning of Insurance Policy.”
Posted on Sun, October 24, 2010
by Sharon Coleman