MADISON, Wis. (AP) — A Wisconsin man can sue a former girlfriend's insurer for the wrongful death of their fetus, which was stillborn after the woman was in a car accident, a court ruled Thursday.
Shannon Tesar, the father of the fetus, claims the woman's negligent driving was partly to blame for the 2003 accident in Wisconsin Rapids. He has filed a lawsuit seeking damages for his pain and suffering for the loss of his would-be child against the woman's auto insurer, American Family Mutual Insurance Co.
A Wood County judge had ruled that a woman has no legal duty to an unborn fetus, and therefore her insurer could not be held liable. Tesar appealed.
The District 4 Court of Appeals on Thursday overturned the decision, ruling Tesar can continue his lawsuit against American Family.
The court said the question was not whether the woman, Alicia Vander Meulen, had a legal duty for her fetus.
"The correct question is whether Vander Meulen had a duty to the world at large to use ordinary care in operating her motor vehicle," Judge Charles Dykman wrote for the three-judge panel. "With the correct question posed, the answer is easy: She did."
American Family spokesman Steve Witmer said the company was reviewing its options, which would include asking the Wisconsin Supreme Court to review the decision.
The company's lawyers had warned that allowing the lawsuit would let fathers sue mothers for a range of acts that harm fetuses during pregnancy, like eating poorly, smoking and failing to exercise. In one legal brief, they warned of "an unprecedented and invasive expansion of the law into a mother's womb."
Dykman disagreed, saying the "opinion does not invite this intrusion."
He wrote that it is routine for insurance companies to be held liable when a driver's negligence injures or kills a family member, and the death of a fetus should be treated the same way. Dykman added the opinion should be seen as limited to the facts of the specific case.
"We emphasize that no reader of this opinion should surmise that we are weighing in on whether women should be held liable for other negligent acts that harm fetuses," he wrote.
Vander Meulen was roughly 27 weeks pregnant when she was involved in the accident. After she pulled out from a Culver's restaurant into traffic, her car was hit by a pickup truck. She was seriously injured but survived, and the fetus died roughly 23 hours later while she was hospitalized.
Tesar had been involved on and off with Vander Meulen for two years, lived with her for part of her pregnancy and assisted with her prenatal care, according to court records.
He filed the lawsuit alleging that both drivers were negligent in causing the fetus' death. (American Family also insures the pickup truck driver, who was not at issue in Thursday's decision.)
A judge put the lawsuit on hold until he proved he was the father, and so Tesar filed a separate paternity action to try to establish that fact. The Wisconsin Supreme Court rejected his paternity case in 2007, saying those actions are meant to support mothers care for children and not help fathers file lawsuits.
But the court ruled that he could file a motion in the wrongful death case to prove his paternity through genetic testing. All parties now agree that he was the father.