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Appeals Court Finds

Appeals Court Finds "Loss of Fetus" Does Not Cover Children Born Prematurely

New York's "no-fault" insurance law requires a plaintiff prove he or she suffered a "serious injury" in a lawsuit arising from a car accident. New York law providesseveral categories of serious injury, ranging from death to "significant limitation of use of a body function or system." There is also a category for "loss of a fetus," which was the subject of a recent decision by the Appellate Division, Second Department.

Leach v. Ocean Black Car Corp.

In December 2006, a pregnant woman was involved in an accident with another vehicle. The accident allegedly caused a rupture of her placenta, forcing the woman to deliver her baby prematurely via cesarean section. Thankfully, the child survived.

The woman then sued the driver and owner of the vehicle that hit her. She alleged, among other things, she suffered a serious injury under the "loss of fetus" category. The defendants moved for summary judgment, arguing the term "fetus" did not apply to a child actually born. Nassau County Supreme Court denied the motion, however, holding a "loss of fetus" extended to any accidental termination of a pregnancy, regardless of the outcome.

But in adecision issued on November 5 of this year, the Second Department reversed. The appeals court said the "plain meaning" of the term "loss of fetus" meant the death of an unborn child, not the "premature birth of a living child." Therefore, the plaintiff could not pursue a claim against the defendants on this issue.

The Second Department noted the history of New York's "loss of fetus" rule. In 1981, theAppellate Division, Third Department, held the no-fault law, which did not provide for "loss of fetus" at the time, did not cover the death of a fetus following an automobile accident. In that case, a pregnant woman nearly at term was struck by another vehicle. While an initial examination indicated her fetus was unaffected, the child was stillborn the next day. The Third Department said this type of injury, no matter how devastating, was not defined as a "serious injury" under the law, which only applied to the death of previously living persons.

In response to the Third Department's decision, the New York legislature amended the "serious injury" law in 1984 to add the "loss of fetus" category. Returning to the present case, the Second Department said the legislature clearly intended this new category apply only to the stillbirth or death of a fetus, as in the case decided by the Third Department. It should not apply to the facts of this case, where the child was born alive but premature.

Pursuing Your Serious Injury Claim

It is worth noting the plaintiff in this case appears to have other "serious injury" claims against the defendants. The Appellate Division only examined this one, limited issue. Furthermore, if the living child suffered any serious injury as a result of the accident, those claims may also be litigated.

If you suffered any serious injury, including the tragic loss of an unborn child, due to the negligence of another driver, you should not hesitate to pursue your claims against those responsible. An experienced New York accident attorney can advise you on the best course of action. Contactour office today if you need to speak with someone right away.

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