Business & Insurance Litigation Newsletter for Indiana

Unborn Child May Be Covered by Underinsured Insurance

In Progressive Ins. Co., Inc. v. Bullock, 841 N.E.2d 238 (Ind. Ct. App. 2006), the Court addressed the issue of whether injuries to an unborn child may be covered by the parents' underinsured motorist coverage. Misty Bullock was thirty-eight weeks pregnant when she was involved in an automobile accident. Her son was born one week later and suffered from injuries caused by the collision. The Bullocks filed a claim for underinsured benefits with Progressive, and Progressive denied the claim based partly on its contention that the son did not qualify as a "person" under the contract.

The Court began its analysis by noting that Indiana recognizes a preconception tort which allows recovery for children who suffer injuries in utero, but that the existence of the tort would not determine liability, as Progressive's duty to the Bullocks turned on contractual obligations as defined by the policy rather than tort law. The Progressive policy provided coverage to "a person residing in the same household as you, and related to you..." The policy did not, however, as emphasized by the Court, define the term "person." Therefore, the Court found that whether the term "person," which is defined as a human being, includes a thirty-eight week-old fetus is ambiguous. Since Progressive drafted the language, the ambiguity was construed in favor of coverage and Progressive's motion for summary judgment was denied.