Lead Opinion
OPINION
STATEMENT OF THE CASE
Brittаny Horn appeals the trial court's dismissal of her wrongful death claim under Indiana Trial Rule 12(B)(6). We address the following issues on appeal:
1. Whether a viable fetus is a "child" under Indiana's child wrongful death statute, Indiana Code Section 34-23-2-1 ("the statute").
2. Whether the statute, as interpreted by our supreme court in Bolin v. Wingert,764 N.E.2d 201 (Ind.2002), violates Article I, Section 28 of the Indiana Constitution.
We affirm.
FACTS AND PROCEDURAL HISTORY
On July 10, 2001, Horn was six-months pregnant and a passenger in Eric Seott's vehicle. Seott and Horn were traveling southbound on Highway 41 in Evansville when they came upon a northbound vehicle driven by Kristi Hendrickson. As Scott turned off Highway 41 and onto Riverside Drive, the two vehicles collided. Horn's unborn fetus died as a result of this collision.
On July 10, 2008, Horn filed a two-count complaint against Hendrickson, alleging that the stoplight which guarded the intersection where the collisiоn occurred was red when Hendrickson entered it, that Horn's fetus was viable at the time of the collision, and that Hendrickson is liable for both Horn's injuries and the death of Horn's viable fetus. Hendrickson moved to dismiss Horn's child wrongful death claim under Trial Rule 12(B)(6). In particular, Hendrickson conceded for purposes of her motion to dismiss that Horn's six-month-old fetus was viable at the time of the collision, but she argued that under our supreme court's decision in Bolin, Indiana does not recognize a wrongful death claim for the death of an unborn child. Following a hearing, the trial court granted Hendrickson's motion and dismissed Horn's child wrongful death claim. This appeal ensued.
DISCUSSION AND DECISION
Standard of Review
A Trial Rule 12(B)(6) motion to dismiss for failure to state a claim upon which relief may be granted tests the legal sufficiency of a claim rather than the facts supporting the claim. Gorski v. DRR, Inc.,
~Here, Hendrickson moved to dismiss Horn's child wrongful death claim on the ground that the decision in Bolin precluded Horn's claim. As we discuss in detail, below, the court in Bolin,
Issue One: Indiana's Child Wrongful Death Statute
In Bolin, Rebecea Bolin's cаr was struck from behind by a vehicle driven by Brandon Wingert. The impact proximately caused Bolin to misearry her eight- to ten-week-old fetus. The trial court granted Wingert's motion for summary judgment on the Bolins' claim for the wrongful death of their unborn child. This court affirmed the trial court. Our supreme court granted transfer and in the first and second sentences of its unanimous opinion stated: "In a case of first impression under Indiana's Child Wrongful Death Statute, we address the question whether an eight-to ten-week-old fetus fits the definition of 'child' We conclude that it does not." Bolin,
Despite Horn's arguments to the contrary, our supreme court's opinion in Bolin means that her viable fetus was not a "child" as defined under the statute. It is true that, in appellate opinions, statements not necessary for the determination of the issues presented are nonbinding obiter dictum. See Koske v. Townsend Eng'g Co.,
Our supreme court's holding in Bolin is nevertheless clear: only a child "born alive" fits the definition of "child" under the child wrongful death statute ("the statute"). Id. In reaching that conclusion, the court declared a "bright line" test. Despite the salient factual difference here, namely, that Horn's fetus was viable, the Bolin opinion categorically precludes all parents from bringing a wrongful death claim for the death of a viable or nonviable fetus.
It is not this court's role to reconsider or declare invalid decisions of our supreme court. As we explained in Dragon v. State,
We are bound by the decisions of our supreme court. Supreme court precedent is binding upon us until it is changed either by that court or by legislative enactment. While Indiana Appellate Rule 65(A) authorizes this [clourt to criticize existing law, it is not this court's role to "reconsider" supreme court decisions.
- Rtill, our supreme court has sometimes revisited previously decided issues. In Mullin v. City of South Bend,
Likewise, in Baldwin v. Reagan, T15 N.E.2d 832, 337 (Ind.1999), in a unanimous opinion, our supreme court declared that Article I, Section 11 of the Indiana Constitution "prohibits police stops of motorists except on the reasonable suspicion required by [Brown v. State,
Put another way, our supreme court's words and opinions are not carved in stone, and it is not inappropriate for the parties or the judges of this court to ask the court to reconsider earlier opinions. Writing separately in Miller v. Mayberry,
At least one other state supreme court has changed its mind when asked to revisit precedent on a nearly identical issue. In Aka v. Jefferson Hosp. Ass'n, Inc.,
In Moragne v. States Marine Lines, Inc.,
[A] judicious consideration of precedent cannot be as threatening to public faith in the judiciary as continued adherence to a rule unjustified in reason, which produces different results for breaches of duty in situations that cannot be differentiated in policy.
Here, our supreme court's interpretation of the child wrongful death statute. in Bo-lin "produces different results for breaches of duty in situations that cannot be differentiated in policy." Id. Thus, while Bolin controls on the issue of whether Horn's viable fetus is deemed a "child" under the statute, we write to explain why we believe the court should reconsider the Bolin opinion.
Britt v. Sears
The court in Bolin set forth the four most common resolutions to the issue whether parents of an unborn child may recover under a child wrongful death statute: (1) permit recovery only for the death of children "born alive," (2) permit recovery only for the death of "viable" unborn children, (8) permit recovery for the death of unborn children that are "quick," and (4) permit recovery for the death of any unborn child. Bolin,
As the court explained in Bolin,
At common law, a person killed by another's tortious acts had no right to recover damages The victim's depen'dents or other heirs therefore had no recognized cause of action, either. This inequity gave rise to wrongful death statutes, first in England in 1846, and soon thereafter in every United States jurisdiction. Indiana's wrongful death statutes are found at Indiana Code § 34-28-1-1 (general wrongful death statute), § 34-28-1-2 (death of adult persons), and § 34-23-2-1 (injury or death of children).
(Citation omitted). Before it was recodi-fied, the child wrongful death statute was found at Indiana Code Section 34-1-1-8. For many years prior to 1987, the statute provided in relevant part:
The father and mother jointly, or either of them by naming the other parent as a co-defendant to answer as to his or her interest, or. in case of divorcee or dissolution of marriage the person to whom the custody of the child was awarded, may maintain an action for the injury or death of a child[.]
But that version of the statute did not define the term "child."
Until 1987, Indiana had followed the pecuniary loss rule, which provided that damages for the loss of love and affection of a child were not compensable in an action for the wrongful death of a minor child. In Miller,
Only one month after the Miller opinion, the legislature approved Public Law 306-1987, which significantly amended Section 34-1-1-8.
As our supreme court observed in Bolin,
It is true that the legislature has expressly referred to viable unborn children in other parts of the Indiana Code. But we cannot agree that "[t]he fact that the legislature did not expressly include unborn children within the definition of 'child' in the [statute]" means that only children born alive fit within the definition of "child." Bolin, 764 N.E2d at 207. Instead, given that Britt was established law in 1987 when the statute was amended, if the legislature had intended to exclude viable unborn children from the definition of "child," it would have clearly expressed its intention to nullify Britt when it defined the term "child." See Burke v. Town of Schererville,
Statutes in Part Materia
Our second concern with Bolin is that the court did not apply a fundamental rule of statutory construction, namely, the rule that in construing a particular statute, related statutes are in pari mate-ria and should also be considered to effectuate legislative intent. "'Where statutes address the same subject, they are in pari materia, and we harmonize them if possible." Hall Drive Ins., Inc. v. City of Fort Wayne,
In concluding that the term "child" only includes children born alive, the court in Bolin addressed four "concepts" that appear in the statute's definition of "child": "an (1) unmarried, (2) individual, (8) without dependents, (4) who is less than twenty years of age."
[The stаtute] defines a child as [an individual] under age twenty or under age twenty-three, if the child is enrolled in an institution of higher education or vocational school. It is possible for a person under age twenty or [under age twenty-three] in college or vocational school to be married and/or have children. If a person in that situation were to die as a result of a tort[,] and [the statute] did not exclude married persons and those with dependents from coverage ..., the wife and/or children of the «deceased [under the general wrongful death statute], and the deceased parents [under the statute], would all have claims for loss of love and affection.*699 The logical conclusion to be drawn is that[ ] by defining a child as someone who [is] "unmarried" «and "without dependents[,]" the [Wegislature showed that it did not intend to permit for recovery under both statutes Apparently, it was the [HMegislature's judgment that onee a person becomes an "adult" by marrying, having a child, graduating [from] college or vocational school, or reaching the age of twenty, the parents' connection with the child may be. too tenuous (or nonexistent) to support a claim for the loss of love and affection.
Brief of Appellant at 22 (citation omitted, emphasis added). And, as Horn notes, the legislature continued along this path in 1999 when it enacted the adult wrongful death statute, which defines an "adult person" as an unmarried individual who does not have dependents and who is not a child, as defined in Indiana Code Section 34-28-2-1. See Ind.Code § 84-23-1-2. Moreover, in order for a parent or child of the adult person to recover damages under the statute, the parent or child has the burden of proving "a genuine, substantial, and ongoing relationship with the adult person[.]" I.C. § 34-28-1-2(f).
When Indiana's three wrongful death statutes are read together in pari materia, it seems clear that the terms "unmarried," "without dependents," "less than twenty years of age," and "less than twenty-three years of age and ... enrolled in an institution of higher education or ... vocational school" were not included in the statute's definition of "child" in order to exclude an unborn viable fetus. Rather, the legislature included those terms to avoid the enactment of redundant statutes and the duplication of wrongful death claims.
Our long-standing decision in Britt, the legislature's failure to clearly repudiate Brift, and an examinаtion of the language used to: define "child" which correlates perfectly with the other wrongful death statutes, all indicate that the Bolin opinion read a "born alive" requirement into the statute which is not there. As this court stated in Mitchell v. State,
A Viable Fetus Is An Individual
Finally, the pivotal word in the statute is "individual." In order to be a child under the statute, one must be an unmarried individual without dependents who is less than twenty years of age or less than twenty-three years of age and is enrolled in an institution of higher education or in a vocational school or program. LC. § 34-23-2-1(a) (emphasis added). The word "individual" is not defined. We give undefined words in statutes their plain, ordinary meaning. See Armstead v. State,
In Bolin, 764 N.EZ2d at 206, our supreme court addressed use of the term "individual" as follows:
The words chosen by the legislature to define "child" have accepted public meanings 'that point in a similar direction. Black's Law Dictionary defines "individual" as "existing as an indivisible entity." Webster's Dictionary says*700 among other things that an "individual" is a being "referred to by a proper name." This is language human beings use to describe to other independently living human beings.
(Citations and brackets omitted). But by definition, a viable fetus is an "individual." Indeed, the viability of the fetus proves its status as a separate and distinct entity. As already noted, our legislature has defined the term "viability" to mean "the ability of a fetus to live outside the mother's womb." I.C. § 16-18-2-865. A viable fetus is a fetus that can live independently from its mother.
Advances in obstetrics and neonatology have compelled the courts in all jurisdictions to abandon the early common law notion established 120 years. ago in Dict-rich v. Inhabitants of North Hoaompton,
This case is not about a zygote or an embryo or when life begins. This case is not about any of the controversial issues associated with the United States Supreme Court's opinion in Roe v. Wade,
In Bolin,
In 1884, in an early landmark case, the Supreme Judicial Court of Massachusetts rejected a wrongful death claim where the mother fell, the fall caused a miscarriage, and the child died shortly after his premature birth. Dietrich,
The holding in Bolin that parents in Indiana cannot recover for the wrongful death of a viable fetus is a return to the 19th century when, in tort law, a fetus and its mother were considered one and the same. We do not believe that the Indiana legislature intended to turn the clock back a century when it modified the child wrongful death statute in 1987. For the reasons explained herein, should Horn seek transfer, we would encourage our supreme court to address Horn's arguments and reconsider its interpretation of Indiana Code Sectiоn 34-28-2-1.
Issue Two: Article I, Section 23
Horn also raises multiple federal and state constitutional attacks on Bolin's interpretation of the statute. Specifically, Horn asserts that Indiana Code section 34-23-2-1, as interpreted by Bolin, is unconstitutional. Because we conclude that Horn's argument under Article I, Section 23 should be dispositive, we only address that constitutional claim.
The appellant in Bolin did not raise any constitutional claims. Accordingly, Horn presents an issue of first impression regarding Article I, Section 23, namely, whether the child wrongful death statute, as interpreted by Bolin, violates Indiana's Equal Privileges and Immunities Clause. Because there are no inherent differences between the parents of a child born alive and the parents of a viable fetus, we conclude that the statute, as interprеted in Bolin, violates Article I, Section 23.
In Collins v. Day,
First, the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics which distinguish the unequally treated classes. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated.
As the court further explained in Collins,
[tlhe distinctions must involve something more than mere characteristics which will serve to divide or identify a class. There must be inherent differences in situation related to the subject-matter of the legislatiоn which require, necessitate, or make expedient different or exclusive legislation with respect to the members of the class.
Id. (citation omitted, emphasis added).
Regarding the first part of the Collins two-part test, Hendrickson baldly asserts that "[plarents giving birth to a child are inherently different from parents who do not have children born alive." Brief of Appellee at 14. But Hendrickson fails to articulate how those groups of parents are inherently different. Significantly, and as we have emphasized, the statute confers rights on the parents, not on the children. Thus, in evaluating the statute, the two relevant groups are parents of a child born alive and parents of a viable unborn fetus, and the question is not whether the two classes of offspring are inherently different.
Even under the relaxed serutiny of Collins,
The concurring-in-result opinion states that "The litigation cost to prove viability" is an inherent difference which justifies disparate treatment between classes of injured persons, in this case, parents. Op. at 704-05. This is a convenient character
Whether the viable fetus would have been born alive is an issue subject to proof at trial and not unlike or more difficult to prove than any other medical issue tried in Indiana courts on a daily basis. Indeed, the viability of an unborn fetus killed in utero may be proven by clinical autopsy evidence. A jury can determine whether the parents have established by a preponderance of the evidence that their viable fetus would have been born alive but for the intervening wrongful act. This is the same type of evidence the State must present to prove beyond a reasonable doubt that a defendant has murdered a viable fetus under Indiana Code Seсtion 85-42-1-1(4). In the end, the fact that parents of a viable fetus may be required to expend greater effort and resources in litigating their wrongful death claim than the parents of a child born alive does not qualify as an "inherent difference[ ] in situation" for purposes of the Equal Privileges and Immunities Clause. Id.
It is true that the parents of an unborn viable fetus who is killed by the wrongful act of another may have more difficulty in proving damages for the loss of love and affection of their child. Further, the fact that the child was born alive, which allowed the parents to touch and see the child prior to its death, is a valid consideration for the jury in awarding damages. But it is not uncommon for the parents of a stillborn fetus to hold their child, and like the parents of born alive, parents of an unborn viable fetus hаve been damaged by the loss of their progeny whose love and affection they would have enjoyed, but for the intervening wrongful act. *
Finally, although Horn did not raise the argument, the court's interpretation of "child" in Bolin raises an equal privileges and immunities problem for fathers of unborn viable children. As we have noted, our supreme court in Bolin,
CONCLUSION
We conclude that under Bolin, Horn may not bring a wrongful death claim under Indiana Code Section 34-23-2-1 because her viable fetus was not born alive. We also conclude that the Bolin opinion, as applied to these facts, renders the statute unconstitutional under the Equal Privileges and Immunities Clause of Article I, Section 28. The Article I, Section 28 issue was not raised or decided in Bolin. Nevertheless, because we do not hold that the statute is unconstitutional on its face but that it is unconstitutional as interpreted by our supreme court, we cannot reverse the trial court. Just as we have no authority to overrule Bolin directly, we cannot disregard supreme court precedent and purport to overrule Bolin indirectly on constitutional grounds. Therefore, while we agree with Horn that the statute violates the
Affirmed.
Notes
. We held oral argument at the Indiana University School of Law in Bloomington on November 11, 2004. We commend counsel for the quality of their arguments.
. Amicus curiae Indiana Right to Life, Inc., is substantively aligned with Horn аnd raises essentially the same arguments as Horn.
. Indiana Code Section 34-24-2-1 provides in relevant part:
(a) As used in this section, "child" means an unmarried individual without dependents who is:
(1) less than twenty (20) years of age; or
(2) less than twenty-three (23) years of age and is enrolled in an institution of higher education or in a vocational school or program.
. The first rule of statutory construction is that "[wlords and phrases shall be taken in their plain, or ordinary and usual sense." Ind.Code § 1-1-4-1(1). The plain, ordinary, and usual meaning of the word "child" includes "[an unborn infant a fetus." Tar American Heritage Dictionary or the English Language 332 (3d ed.1996). But as we discuss infra, the 1987 amendments to the child wrongful death statute defines "child," and, thus, we must construe that definition rather than apply the plain, ordinary, and usual meaning of the word. See Rush v. Elkhart County Plan Comm'n,
. Indiana Code Section 16-18-2-365 defines "viability" as "the ability of a fetus to live outside the mother's womb."
. P.L. 306-1987, Section 5 provides, "Because an emergency exists, this act takes effect May 8, 1987."
. In 1989, the legislature changed all references in the statute. from "ward" to "protected person." See P.L. 33-1989. In 1998, the legislature recodified the statute as Indiana Code Section 34-23-2-1. Again, the definition of "child" has remained unchanged since 1987.
. As the court in Bolin noted,
. This is basically the same language this court used in Brift when describing those unborn children who fall within the meaning of "child" under our previous wrongful death statute. See
. Regarding the court's observation in Bolin,
. It is significant that our legislature defined "child" as an "individual" and not as a "person." Had the legislature used the word "person" rather than "individual," we could infer without much doubt that it interdеd to limit wrongful death claims to those arising from the death of children born alive. But by using the term "individual," the legislature indicated its intent to include not only children born alive but also unborn viable children, who are not "persons" under Roe, but who are "individuals." It may well be that the meaning of "person" and the meaning of "individual" are on a collision course. But the question of whether a fetus is a person entitled to protection under the Fourteenth Amendment rests with the United States Supreme Court. Our courts can, however, recognize that a viable fetus is an individual for purposes of Indiana's child wrongful death statute. Again, perhaps it was for that very reason. that our legislature used the term "individual" rather than the term "person" when defining a child.
. Horn also contends that Bolin's interpretation of the statute rendеrs the statute unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution and the Due Course of Law Clause of Article I, Section 12 of the Indiana Constitution.
. In Collins,
This Court anticipates that our independent state privileges and immunities jurisprudence will, evolve in future cases facing Indiana courts to assure and extend protection to all Indiana citizens in addition to that provided by the federal Fourteenth Amendment.
(Emphases added). The promise of Collins has not been realized. As Judge Barnes notes in the lead opinion in Morrison v.. Sadler, 821 NE.2d 15, 22 (Ind.Ct.App. 2005), of some ninety reported 'Equal Privileges and Immunities' cases following Collins and its clarification of Article 1, § 23 analysis, only three have finally resulted in holdings (after supreme court review) that a particular statute violated Article 1, § 23." One might well conclude that the Indiana Privileges and Immunities Clause has no teeth. See Jon Lara-more, Indiana Constitutional Developments: The Wind Shifts, 36 Imp. L.REv. 961, 962 (2003) (stating "[Allthough Indiana's 'equal privileges and immunities' language has been held to have different meaning from the Federal Equal Protection Clause, the linguistic difference has not led to significantly different outcomes, and the Indiana standard may be less restrictive of legislative classification than the federal rule.").
Concurrence Opinion
concurring in result.
I respectfully concur in result. I believe that the entirety of Horn's argument is controlled by Bolin v. Wingert,
I take issue with the majority's creation of thе interim legal status of an "individual" under the statute. Whether the majority wishes to recognize it or not, assigning a viable fetus the status of an "individual" will not be a singular or uniform definition. Rather, the majority's opinion will create a complicated, multi-tiered definition, completely dependent upon the level of care available to the mother and fetus at the time of injury. Will a fetus not be "viable" and therefore not an "individual" if the level of care at the delivery facility is a local county general hospital without appreciable advanced prenatal care? If the same fetus could be viable in a large metropolitan hospital with highly specialized prenatal care, should viability and "individual" status be subject to establishment merely on the chance of location of the place of injury? Will the new standard withstand constitutional serutiny when the injury occurs in a location where only a lower level of care is available? These are all questions ignored by the majority and that are more properly the province of the General Assembly. These issues should be resolved through proactive public policy debates in the legislative branch of government, rather than through reactive interpretation of statutory language by the judicial branch of government.
The majority also criticizes our Supreme Court for allegedly ignoring the in pari materia rule of statutory construction. Not only do I believe the criticism is unwarranted, it seems to me that the majority ignores a more fundamental rule about the separation оf powers, namely the doe-trine of legislative acquiescence. The General Assembly has been legally and constitutionally aware of the Bolin decision for all or part of four successive annual sessions and yet has not chosen to modify the statute in the way that the majority believes it should now be interpreted. The majority's interpretation should be and is unnecessary. These are the kinds of policy decisions that the Constitution of Indiana entrusts to its legislative branch of government, not to its judicial branch.
Finally, I disagree with the majority's discussion of Horn's claim under Article 1, Section 28, of the Constitution of Indiana. In Collins v. Day, our supreme court has clearly stated that disparate treatment of classes of individuals can be constitutional, so long as inherent differences rеlated to the subject matter of the legislation "require, necessitate, or make- expedient different or exclusive legislation with respect to members of the class."
For all of these reasons, I would hold that Bolin v. Wingert is dispositive of all issues raised in this case. I therefore concur in result. -