In Utero Injuries
Questions on Liability Coverage and Problems for Employers
By David Thamann, JD, CPCU, ARM
From the April 2007 issue of Claims Magazine
If an employee is injured during the course of employment, that employee, in most circumstances, will receive scheduled workers' compensation benefits. However, what happens if the employee is pregnant at the time of injury, and the fetus is injured in the same accident? Does the fetus have a right, after birth, to sue the employer for his injuries, or does the exclusive remedy of the workers' compensation system prevent any such lawsuit?
With millions of pregnant women on the job these days, the issue of in utero injuries has implications for employers and their liability insurance coverage. The standard workers' compensation and employer's liability insurance policy provides that the insurer will pay all sums that the named insured employer legally must pay as damages for consequential bodily injury to a child of the injured employee, provided that these damages are the direct consequence of bodily injury to the employee in the course of employment. What this means is that the employer's liability insurance policy will pay for injuries to a child if the child's claims are deemed to derive from the employee/parent's work-related injuries. As an example, if the pregnant mother is exposed to lead paint during the course of employment, she is injured by being so exposed, and the fetus is injured by being exposed to the same poisonous condition. The fetus suffers bodily injury as a consequence of the mother's work-related injury, and any bodily injury claims that the child may make after birth are handled under the terms of the employer's liability policy.
Direct or Consequential?
Of course, is anything so simple, so cut-and-dried? Who is to say that the fetus did not suffer a direct injury due to the lead paint (or any other type of hazardous) exposure? Has the fetus suffered injury just as a consequence of being in the womb of a woman who is exposed to a hazardous contaminant, or has the hazard directly impacted on the fetus? The facts of each particular in utero injury claim would have to be examined in order to answer questions like these. However, there is a decision from the Supreme Court of Washington that affords some general guidelines. The case is Meyer v. Burger King Corporation, 26 P3d 925 (Wash. 2001).
In this case, the employee (Meyer) and her husband, on behalf of themselves and their child, brought an action against the employer, seeking damages for injuries sustained by the child in utero when the very pregnant Meyer lost her footing on a slippery floor at work, fell against a table, and struck her lower abdomen on the corner of a table. Meyer claimed that that blunt trauma to her abdomen caused an abruption of the placenta in which the placenta partially detached from Meyer's uterine wall. This in turn, it was claimed, caused a loss of oxygen to the fetus in utero, and this loss of oxygen resulted in the child being born several hours later with severe injuries.
The employer argued that the state's workers' compensation law barred family members' claims against employers that arise out of injuries suffered by employees in the course of employment.
Surprising Court Decision
When the case got to the Washington Supreme Court, the court said that it had to decide whether the claims in the case derived from the injuries to the worker, or whether the claims derived from injuries suffered independently of the injuries to the worker. To this end, the court noted that the mother did not claim physical injuries caused by the slip and fall; rather, the claims in the case involved allegations of injury personal to the child. Because of this, the court found that the child's injuries were independent from the injuries to the mother and this allowed the child to bring a cause of action for negligence for prenatal injuries.
The employer had also argued that it was impossible to separate the child's injuries from her mother's because it was the workplace injury to the mother that allegedly caused the abruption of the placenta. The employer claimed that the child's injuries were no different in nature from the mother's in that they did not occur at a different time than her mother's, and they did not have a different causal factor than her mother's. But, the court rejected this argument by pointing out that the child's injury was to her brain due to lack of oxygen, while the mother's injury was to her womb and placenta. The court said that while the mother and child in utero are physically connected, an injury to one is not necessarily an injury to the other. The particular facts of the incident need to be taken into consideration by courts.
In further support of the claim by the child, the court said that the workers' comp statute in the state did not bar family members and dependents who are independently injured by an employer's negligence from bringing a claim. And, the court cited other jurisdictions that unanimously concluded that prenatal injuries are separate, rather than derivative, even when the injury occurs simultaneously with the mother's work-related injuries. (The cases cited are from the following states: Hawaii, California, Colorado, Indiana, Georgia, Pennsylvania, Alaska, North Dakota, Louisiana, Michigan, Tennessee, and Texas.)
Back to Basics
So, the thrust of the Meyer case—and the other cases listed in the Meyer decision—is that a newborn injured in utero can have a claim against the mother's employer as a separate and distinct party from the injured mother, as a party directly injured by the negligence of the employer. If that is the case, the workers' compensation and employer's liability insurance policy of the employer is not going to apply to a claim by the child since that policy responds to consequential injury claims. Where does the employer then look for liability coverage? Well, there is always the good old reliable commercial general liability (CGL) coverage form.
The CGL form does have an employer's liability exclusion, but this applies to bodily injury to an employee, and not to bodily injury suffered directly by a child in utero. Of course, the employer must be aware of the other exclusions on the CGL form that could prevent liability coverage, since each exclusion has to be examined for its own possible applicability to any claim. As an example, if a claim by the child is based on injuries due to the use of an auto owned by the employer and used by the employee/mother in the course of employment, the auto exclusion on the CGL form would prevent coverage for the child's claim. An employer needs to read his general liability form, whether a standard form or a company-specific form, to see if there are any exclusions that might apply to the bodily injury claims of a child injured in utero.
In sum, there are liability exposures that employers face if an in utero injury occurs.
These exposures will arise once the child is born alive (a requirement for the granting of retroactive relief to a child who suffered injuries before the birth), and can continue for many years since the statute of limitations on personal injuries to a minor will not begin to run until after the minor reaches legal adulthood. To adequately face these exposures, an employer will need more than the workers' compensation and employer's liability insurance policy. A general liability policy should be used as a complement to the employer's liability insurance.