policy terms, and because the birth took place within Bellefonte's policy period, Bellefonte should be responsible for Roussel's potential liability to the children. As provided in both policies, "occurrence means an accident" and pursuant to Brenneman v. St. Paul Fire and Marine Insurance Co., 411 Pa. 409, 413, 192 A.2d 745, 747 (1963), an accident is defined as "an unanticipated event." The controversy thus centers around when this "unanticipated event" may be considered to have occurred. Transamerica's position is that the deformed birth was the "unanticipated event," whereas Bellefonte argues that the "unanticipated event" was at the time the drug caused the deformities.
To support its contention, Transamerica claims that, where there is a time interval between the act and the damage, it is the time of the damage rather than the time of the act allegedly causing the damage which determines the date of the occurrence. Accordingly, Transamerica cites Deodato v. Hartford Insurance Company, 143 N.J.Super. 396, 404, 363 A.2d 361, 365 (1976), in which the court found that the alleged negligent construction of a roof within the insurers policy period was not the insurable "occurrence," rather the "occurrence" was the time "the complaining party was damaged." See also Muller Fuel Oil Co. v. Insurance Company of North America, 95 N.J.Super. 564, 232 A.2d 168 (1967).
Transamerica contends that the "complaining party was damaged" at the time of birth when the deformities became apparent. The Court, however, recognizes the principle that there can't be "negligence in the air," relating to the notion that some harm or damage must be sustained before a cause of action arises in tort. Based on the evidence, Transamerica would be hardpressed to argue that bodily injury did not occur to the fetuses before birth. Expert testimony reveals that a limb deformity, if caused by the drug, would have occurred within the forty-fourth day of pregnancy because it is within this period that the limbs develop. Deposition of Dr. Robert L. Brent, pp. 10, 15, 16, 46, 55, 64 and 66. This time period was shown to be within the period of Transamerica's coverage. The mere fact of birth should not overshadow the fact that the drug (if responsible for the injury) caused irreversible damage to the fetus within the policy period.
Both the Kushnir and Denko actions pray for relief for injuries sustained by the deformed children as well as injuries sustained by their parents. There is little doubt that both the children and the parents have and will continue to suffer from the deformities. Pennsylvania and New Jersey recognize that "the tortious injury of a child gives rise to two causes of action; one on behalf of the child . . . ; and the other for the parents themselves." Hunt v. Yeatman, 264 F. Supp. 490, 491 (E.D.Pa.1967); Orr v. Orr, 36 N.J. 236, 176 A.2d 241 (1961). At the time the drug affected the fetuses by causing their limbs to begin to grow in a deformed manner, the childrens' causes of action had accrued. An insurable "occurrence" had then occurred within the Transamerica policy period.
The deformed birth of the children gave rise to separate and distinct causes of action in the parents. The birth of the children is an event that is distinguishable from the event which caused injury to the fetuses while in the womb. The deformed births were unexpected and unintended events which fit the definition of "occurrence" under both insurance policies. The births of the deformed children resulted "in bodily injury . . . neither expected nor intended . . ." to the children's parents. It would be inaccurate to contend that at birth bodily injury was sustained by the child, because the child's injury had occurred previously while in the womb, and the birth had no effect on the damage sustained by the child while in the womb.
On the other hand, the parents sustained no discernable injuries until they became aware of the childrens' deformities at birth. The damages sought by the parents relate primarily to increased medical and child-rearing expenses resulting from the birth of deformed children, and the emotional trauma sustained in connection with the deformities suffered by the children. Whatever may be the ultimate scope and extent of these damages, it is clear that they did not begin to accrue until the occurrence at birth.
The result of this analysis is that the Court finds there were two "occurrences"; hence, two tortious actions obtain. The first, that of the child, happened when the fetus suffered deformities while in the womb during the Transamerica policy period. The second, that of the parents, happened when the child was born during the Bellefonte policy period. Two separate and independent "occurrences" resulted from the mothers' ingestion of Roussel's drugs and each insurer must accept responsibility resulting from the "occurrence" within its respective policy period. Because the Court must limit its ruling in accordance with the motions presented, all of which seek to impose exclusive liability upon one of the insurers, all the motions for summary judgment must be and are denied. Nevertheless, the Court has sought to manifest its intent of what is viewed to be the proper, ultimate resolution of this case.
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