Injury at the workplace can bring a lot of complication into one’s life, but for female workers who are pregnant, the complications could become even greater. If a pregnant worker’s unborn child is injured on the job, the worker will be eligible for workers’ compensation benefits, but what about the child–will he or she have a right to sue the employer for damages after birth?
In California, the rule is that an unborn infant’s injuries may not be remedied by a personal injury suit unless they are separate and distinct from the employee’s injuries. If the unborn child’s injuries are determined to be collateral to or derivative from the employee’s injuries, workers’ compensation is the only remedy available.
For employers, then, the question in such cases will be whether the liability insurance part of their workers’ compensation policy covers injuries to the child. The answer is that it does, but it is based on the injury to the employee parent.
Employers often bank on their commercial general liability policy for insurance protection against claims of newborns. It would apply in such cases, provided there is no exclusion in the policy.
Obviously, employers are concerned about their exposure to claims and lawsuits stemming from injuries to pregnant workers and their future children. The workers themselves should be able to count on compensation when they suffer injury due to the negligence of an employer. Injuries to unborn children can lead to lifelong impairments, and satisfactory compensation in such cases is only fair.
Source: Property Casualty 360, “In-Utero Injuries: Another Risk Exposure for Employers,” David D. Thamann, May 14, 2013.