When does a “person” come into being for purposes of insurance coverage? There is scant legal guidance for this question. The most recent decision in California is nearly 30 years old, Endo Laboratories v. Hartford Insurance, 747 F.2d 1264. In Endo the Ninth Circuit U.S. Court of Appeals held that a fetus was a “person” that suffered bodily injury during the policy term, which ended before the child was born. The court relied on Civil Code §29 (now §43.1) that “[a] child conceived, but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth.” The court’s reasoning was that because the child could sue for prenatal injuries, the insurer on the risk during the prenatal period was responsible.
This issue of a fetus as a person also comes into play in workers’ compensation insurance. If the parent has been exposed to dangerous chemicals that damage a later-born child, are the child’s injuries derivative of the parent or independent? Under the workers’ compensation rules, derivative claims come within the workers’ compensation framework and a civil lawsuit cannot be maintained (California Labor Code §3601). But if the child has an independent claim, he can sue for damages.
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