If an employee is injured during the course of employment, thatemployee, in most circumstances, will receive scheduled workers'compensation benefits. However, what happens if the employee ispregnant at the time of injury, and the fetus is injured in thesame accident? Does the fetus have a right, after birth, to sue theemployer for his injuries, or does the exclusive remedy of theworkers' compensation system prevent any such lawsuit?

With millions of pregnant women on the job these days, the issueof in utero injuries has implications for employers and theirliability insurance coverage. The standard workers' compensationand employer's liability insurance policy provides that the insurerwill pay all sums that the named insured employer legally must payas damages for consequential bodily injury to a child of theinjured employee, provided that these damages are the directconsequence of bodily injury to the employee in the course ofemployment. What this means is that the employer's liabilityinsurance policy will pay for injuries to a child if the child'sclaims are deemed to derive from the employee/parent's work-relatedinjuries. As an example, if the pregnant mother is exposed to leadpaint during the course of employment, she is injured by being soexposed, and the fetus is injured by being exposed to the samepoisonous condition. The fetus suffers bodily injury as aconsequence of the mother's work-related injury, and any bodilyinjury claims that the child may make after birth are handled underthe terms of the employer's liability policy.

Direct or Consequential?

Of course, is anything so simple, so cut-and-dried? Who is tosay that the fetus did not suffer a direct injury due to the leadpaint (or any other type of hazardous) exposure? Has the fetussuffered injury just as a consequence of being in the womb of awoman who is exposed to a hazardous contaminant, or has the hazarddirectly impacted on the fetus? The facts of each particular inutero injury claim would have to be examined in order to answerquestions like these. However, there is a decision from the SupremeCourt of Washington that affords some general guidelines. The caseis Meyer v. Burger King Corporation, 26 P3d 925 (Wash. 2001).

In this case, the employee (Meyer) and her husband, on behalf ofthemselves and their child, brought an action against the employer,seeking damages for injuries sustained by the child in utero whenthe very pregnant Meyer lost her footing on a slippery floor atwork, fell against a table, and struck her lower abdomen on thecorner of a table. Meyer claimed that that blunt trauma to herabdomen caused an abruption of the placenta in which the placentapartially detached from Meyer's uterine wall. This in turn, it wasclaimed, caused a loss of oxygen to the fetus in utero, and thisloss of oxygen resulted in the child being born several hours laterwith severe injuries.

The employer argued that the state's workers' compensation lawbarred family members' claims against employers that arise out ofinjuries suffered by employees in the course of employment.

Surprising Court Decision

When the case got to the Washington Supreme Court, the courtsaid that it had to decide whether the claims in the case derivedfrom the injuries to the worker, or whether the claims derived frominjuries suffered independently of the injuries to the worker. Tothis end, the court noted that the mother did not claim physicalinjuries caused by the slip and fall; rather, the claims in thecase involved allegations of injury personal to the child. Becauseof this, the court found that the child's injuries were independentfrom the injuries to the mother and this allowed the child to bringa cause of action for negligence for prenatal injuries.

The employer had also argued that it was impossible to separatethe child's injuries from her mother's because it was the workplaceinjury to the mother that allegedly caused the abruption of theplacenta. The employer claimed that the child's injuries were nodifferent in nature from the mother's in that they did not occur ata different time than her mother's, and they did not have adifferent causal factor than her mother's. But, the court rejectedthis argument by pointing out that the child's injury was to herbrain due to lack of oxygen, while the mother's injury was to herwomb and placenta. The court said that while the mother and childin utero are physically connected, an injury to one is notnecessarily an injury to the other. The particular facts of theincident need to be taken into consideration by courts.

In further support of the claim by the child, the court saidthat the workers' comp statute in the state did not bar familymembers and dependants who are independently injured by anemployer's negligence from bringing a claim. And, the court citedother jurisdictions that unanimously concluded that prenatalinjuries are separate, rather than derivative, even when the injuryoccurs simultaneously with the mother's work-related injuries. (Thecases 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 inthe Meyer decision–is that a newborn injured in utero can have aclaim against the mother's employer as a separate and distinctparty from the injured mother, as a party directly injured by thenegligence of the employer. If that is the case, the workers'compensation and employer's liability insurance policy of theemployer is not going to apply to a claim by the child since thatpolicy responds to consequential injury claims. Where does theemployer then look for liability coverage? Well, there is alwaysthe good old reliable commercial general liability (CGL) coverageform.

The CGL form does have an employer's liability exclusion, butthis applies to bodily injury to an employee, and not to bodilyinjury suffered directly by a child in utero. Of course, theemployer must be aware of the other exclusions on the CGL form thatcould prevent liability coverage, since each exclusion has to beexamined for its own possible applicability to any claim. As anexample, if a claim by the child is based on injuries due to theuse of an auto owned by the employer and used by theemployee/mother in the course of employment, the auto exclusion onthe CGL form would prevent coverage for the child's claim. Anemployer needs to read his general liability form, whether astandard form or a company-specific form, to see if there are anyexclusions that might apply to the bodily injury claims of a childinjured in utero.

In sum, there are liability exposures that employers face if anin utero injury occurs.

These exposures will arise once the child is born alive (arequirement for the granting of retroactive relief to a child whosuffered injuries before the birth), and can continue for manyyears since the statute of limitations on personal injuries to aminor will not begin to run until after the minor reaches legaladulthood. To adequately face these exposures, an employer willneed more than the workers' compensation and employer's liabilityinsurance policy. A general liability policy should be used as acomplement to the employer's liability insurance.

David Thamann is managing editor for the Fire, Casualty, andSurety Bulletins.