66 Federal Credit Union, et al. v. Tucker


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Docket Number: 2001-IA-00358-SCT

Supreme Court: Opinion Link
Opinion Date: 08-21-2003
Opinion Author: Smith, P.J.
Holding: Affirmed and Remanded

Additional Case Information: Topic: Wrongful death - Death of non-viable fetus - Section 11-7-13
Judge(s) Concurring: Pittman, C.J., Waller, Easley and Carlson, JJ.
Non Participating Judge(s): Diaz, J.
Dissenting Author : Graves, J. GRAVES, J. WITHOUT SEPARATE WRITTEN OPINION
Dissenting Author : McRae, P.J.
Concur in Part, Concur in Result 1: Cobb, J.
Concur in Part, Concur in Result Joined By 1: Easley, J.
Procedural History: Interlocutory Appeal
Nature of the Case: CIVIL - WRONGFUL DEATH

Trial Court: Date of Trial Judgment: 02-15-2001
Appealed from: Bolivar County Circuit Court
Judge: Kenneth L. Thomas
Disposition: The trial court entered an order denying the motions for partial summary judgment on Tucker’s wrongful death claim. The trial court ruled that the fetus was not viable at the time of the miscarriage so no wrongful death claim on its behalf could prevail.
Case Number: 97-0018

Note: The case at bar is an interlocutory appeal presenting the Court with the first impression issue of whether our wrongful death statute, Miss. Code Ann. § 11-7-13 (Supp. 2002), creates a cause of action for the death of a non-viable fetus, en ventre sa mere. Consistent with the language found in Miss. Code Ann. § 97-3-37 (Rev. 2000), we hold that the wrongful death statute, Miss. Code Ann. § 11-7-13 (Supp. 2002), includes an unborn child that is “quick” in the womb as a “person.”

  Party Name: Attorney Name:  
Appellant: 66 Federal Credit Union, Mississippi Auto Recovery, Inc., and Grant Brownlee, Individually and as Agent and Employee of Mississippi Auto Recovery, Inc., Dr. Scott Nelson and Bolivar Leflore Medical Alliance, LLP




TERRY R. LEVY AUDREY CAROLYN CURRY THOMAS C. GERITY CLINTON M. GUENTHER



 

Appellee: Tracy Tucker ELLIS TURNAGE  

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Topic: Wrongful death - Death of non-viable fetus - Section 11-7-13

Summary of the Facts: When Tracy Tucker suffered a miscarriage three days after an attempt to repossess her car, she filed a lawsuit against 66 Federal Credit Union, Mississippi Auto Recovery, Inc. and Grant Brownlee, an agent and employee of Mississippi Auto Recovery, Inc., alleging negligent repossession, negligent misrepresentation, breach of the peace, assault and battery, negligence, intentional and negligent infliction of emotional distress, conversion and wrongful death. She also alleged that Dr. Scott Nelson and Bolivar County Medical Alliance, LLP committed medical malpractice that resulted in the wrongful death of her fetus. The defendants filed motions for partial summary judgment claiming that the death of a nonviable fetus does not give rise to a wrongful death action. The court entered an order denying the motions for partial summary judgment and certified interlocutory appeal to the Supreme Court.

Summary of Opinion Analysis: The issue before the Court is one of first impression, i.e., whether Mississippi’s wrongful death statute, section 11-7-13, creates a cause of action for the death of a non-viable fetus en ventre sa mere. Viable is a term applied to a newly-born infant, and especially to one prematurely born, which is not only born alive, but in such a state of organic development as to make possible the continuments of its life. Six states allow recovery for a non-viable fetus that dies while still in the womb. Section 11-7-13 creates a cause of action for the wrongful death of an unborn child where the fetus was viable at the time of death. The statute creates a general cause of action and designates its beneficiaries without specifying whether a fetus is considered a “living” “individual” or “person” whose death could give rise to such an action. Therefore, the statute includes a fetus who is “quick” in the womb as a “person” within the language of that statute and the cause of action dates from the death of the child and the determination of whether a child is “quick” in the womb is assigned to the jury as the finder of fact. The facts in this case clearly present a situation where the preborn child was “quick” in the womb, which generally occurs between the tenth week and the fourth month of pregnancy.


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