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Car Accident Damages for the Unborn

Studies show that the most common death in children, under age 15, is unintentional injury. Studies also show the most common cause of unintentional injury to children are car accidents. Car accidents are common and occur on a consistent basis. Some states, such as the State of Florida, require certain amounts of insurance coverage in the event of an automobile collision. This insurance coverage may pay for damages in the event of an injury cause by a collision. All persons, including children, whom are injured in a car accident, caused by the negligence of another, have the right to recover for these damages. However, there is some confusion regarding the rights of an unborn child involved in a car accident. In other words, if a pregnant woman is in a car accident, questions revolve around whether the fetus has an independent right to recover damages as if it were a live child strapped to a car seat. The answer depends on whether the unborn child survives the accident long enough to reach a live birth.

CAR ACCIDENTS IN GERNERAL

Automobile negligence possess the same general elements as any other negligence case. Duty. Breach. Causation. Damages. All drivers have a duty to other drivers, passengers and pedestrians on the roads and highways. This duty is breached when they fail to operate their automobile in a prudent manner. If that breach is the cause of an injury, then the “at-fault” driver is liable for the negligent operation of their automobile. Injuries may include minor soft tissue injuries. Injuries may also include serious bodily trauma and even death. An injured person then has the right to pursue a legal cause of action against the negligent party.

THE BORN ALIVE DOCTRINE.

The focus of this article is whether an unborn fetus has the same right, to a legal cause of action against a negligent driver, as anyone else involved in a car accident. As mentioned, the answer depends on the life status of the fetus. If a pregnant woman is involved in serious car accident which causes her to deliver a dead fetus, then the child will have no independent legal right to sue. In that case, only the mother will have the right bring a claim for such a loss. The circumstances change, however, if the fetus reaches life outside the womb.

Florida follows what is known as the Born Alive Doctrine. The Born Alive Doctrine is explained in the 1997 Florida Supreme Court case of State v. Ashley. The Born Alive Doctrine holds that a child who is injured before birth, and is born alive, is a person entitled to all rights under both the Florida Constitution and the Constitution of the United States. The Born Alive Doctrine goes on to hold that if a child suffers prenatal injuries, at the hands of a negligent party, the child has a legal cause of action if the child is born alive. Specifically, Florida courts have stated that “a child born alive may recover for damages for its personal injuries occurring when it was a fetus.”

This ultimately means that if a pregnant woman is in an automobile collision, she as well as her baby, will be able to file a claim if the child survives the accident. This could have a significant impact on insurance coverage payouts. For example, a body injury insurance plan may be what is known as a “10/20 policy”. This means that in the event of an accident, the insurance company will pay a maximum of $10,000 person but no more than $20,000 for the entire accident. Likewise, a “50/100 policy” indicates the insurance payout will be up to $50,000 for one person but no more than $100,000 for the entire accident. Let’s go with the 50/100 policy. If a pregnant woman is injured in a car accident, and her fetus dies before birth, she will only be able to recover $50,000 because the unborn child did not survive to allow an independent claim. However, under the Born Alive Doctrine, the family can seek to recover the entire $100,000, because the injured child has he right to a claim that is separate and independent of the mother’s.

HAVE YOU BEEN INVOLVED IN AN ACCIDENT WITH AN UNBORN CHILD?

We hope that no one ever experiences a serious motor vehicle collision involving children or a pregnant woman. However, the personal injury lawyers at the Watson Firm are familiar with the legal detail regarding injuries to unborn children. If you are involved in such an incident, you and the unborn child could be entitled to money damages for ensuing medical bills, as well as pain and suffering. The Watson Firm would be honored to discuss your case with you to determine the likelihood of you receiving these damages.