Recent Decision by Mississippi Supreme Court Adopts “Quick Child” Test, Ending Viability Inquiries for Unborns in Wrongful Death Actions
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66 Federal Credit Union, et al. v. Tucker, 853 So. 2d 107 (Miss. 2003)
The above decision was rendered on interlocutory appeal on August 21, 2003 and involved, among other claims, a claim for the wrongful death of a fetus where the mother miscarried approximately 19 weeks into her pregnancy. In Tucker, the Court declined to draw a line at viability, and thereby conclusively established that viability is no longer the proper standard to determine whether an unborn child is a “person” who may recover under Mississippi’s wrongful death statute. Prior cases had held that the statute created a cause of action for an unborn child where the fetus was viable at the time of death. Sweeney v. Preston, 642 So. 2d 332 (Miss. 1994); Terrell v. Rankin, 511 So. 2d 126 (Miss. 1987); Rainey v. Horn, 72 So. 2d 434 (Miss. 1954) (extending viability test to wrongful death beneficiaries).
The Tucker Court adopted Mississippi’s criminal standard which requires that a child be “quick” (a child that has developed such that it is capable of movement in the mother’s womb) in order for a crime to exist for the death of that fetus. See, Miss. Code Ann. § 97-3-37 (Rev. 2000). Based on the adoption of this standard, the Court held under Miss. Code Ann. § 11-7-13 that a cause of action exists for a non-viable fetus who is “quick in the womb,” as the unborn is to be considered a “person” under the statute. The Court noted that prior Mississippi cases had held that a 7-month old fetus was “quick” and that Georgia jurisprudence–relied on heavily by the Court–had established that an unborn child may be “quick” in the womb between the tenth week and fourth month of pregnancy. See Sitton v. State, 760 So. 2d 28, 30 (Miss. Ct. App. 1999); Citron v. Ghaffari, 542 S.E.2d 555, 556-57 (Ga. Ct. App. 2000). The determination of whether a child is “quick” in the womb is a question for the jury, preferably assisted by expert testimony.
An earlier case, Childs v. General Motors Corp., 73 F.Supp. 2d 669 (N.D. Miss. 1999), held on an Erie guess that a Mississippi state court would extend the holding in Rainey and conclude that a non-viable fetus at the time of his sibling’s death would be considered a wrongful death beneficiary. (“…[A] preborn child should be entitled to wrongful death benefits as long as he or she was in utero at the time the tortious act was committed. Whether the child has reached the stage of prenatal viability is of no concern.”) (citing Justice Mills’ concurrence in In re: Estate of Davis, 706 So. 2d 244, 249 (Miss. 1998)).
The Tucker decision makes it imperative at heir determination hearings to inquire whether any “quick child” existed at the time of the decedent’s death which would be considered a beneficiary under the statute. It is also necessary to question the natural father of a deceased child as to any pregnancies “outside” the marriage, as the wrongful death statute does not distinguish between half- and whole-blood siblings as beneficiaries. Of course, in cases involving the death of a pregnant woman, based on this decision, there could exist two wrongful death claims for the beneficiaries, depending on whether the child was “quick” at the time of the mother’s death.
Without proper questioning involving wrongful death beneficiaries, and a determination by the Court that any unborn potential heirs were “quick” at the time of their sibling’s or parent’s death, an heir could make an argument that proper court determination of the heirs and approval of the settlement was not obtained.
The question would then turn upon whether the “one suit” rule as to wrongful death actions would be applied and enforced. The Mississippi Supreme Court has shown a willingness to enforce this statutory mandate, even when the result was harsh. See Curry v. Turner, 832 So. 2d 508, 517 (Miss. 2002) (Minor childrens’ wrongful death claims against store owner and murderer’s family members were barred by 3-year statute of limitations, as a personal representative and administratrix was appointed to represent childrens’ interest and amendment to add defendants and claims did not relate back to original action against murderer only.) Most recently, the Court addressed similar issues in Lee, et al. v. Thompson, et al., 2003 Miss. LEXIS 407 (Sept. 11, 2003), and again upheld the harsh effects of a limitations period against minor claimants.
However, Curry notes the difficulty and inconsistency the Court has had on related issues. See Thiroux v. Austin, 749 So. 2d 1040, 1041 (Miss. 1999) (Savings statute applied to save minor heirs’ wrongful death claims where the father was killed and legal guardian brought suit over three and a half years later.) Given the fact that a child could be “quick” in the womb without the knowledge of a person who might be charged with bringing a claim on their behalf, constitutional issues raised in the dissents in Curry could arise to unduly complicate what was intended to be a speedy, final settlement of all claims where liability is clear.
Of final note is Justice Cobb’s rationale for a “moment of conception” test in her separate concurrence and for which the majority expressed support. Although the proper case may certainly extend the Tucker holding to a “moment of conception” test, the majority declined to adopt that standard on the basis that such facts were not before it in Tucker, as there was clearly no question that the fetus was “quick” in the womb.