FOR PUBLICATION

ATTORNEY FOR APPELLANTS:            ATTORNEYS FOR APPELLEES:

DANIEL A. BARFIELD                JAMES D. JOHNSON
Gerling Law Offices                     MAX E. FIESTER
Evansville, Indiana                    Rudolph, Fine, Porter & Johnson, LLP
                            Evansville, Indiana

ATTORNEY FOR AMICUS CURIAE:
JOHN H. SHEAN
Shean Law Offices
Bloomington, Indiana

BRITTANY HORN, Individually, and         )

BRITTANY HORN, as parent and Natural             )
Guardian of LIBBY ANN SCOTT, Deceased,           )
                                                 )
    Appellants-Plaintiffs                        )
                                                 )
        vs.                                      )    No. 82A05-0402-CV-83
                                                 )
KRISTI L. HENDRICKSON and                        )

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 23 of the Indiana Constitution.

We affirm.

(Citations omitted); see also Stytle v. Angola Die Casting Co., 806 N.E.2d 339, 345 (Ind. Ct. App. 2004) (citing Computer Co., Inc. v. Davidson Indus., Inc., 623 N.E.2d 1075, 1079 (Ind. Ct. App. 1993), overruled on other grounds). And as Justice Sullivan noted in Floyd v. State, 650 N.E.2d 28, 35 (Ind. 1994), the Court of Appeals is well aware of the controlling precedents of our supreme court and has no desire to proceed in conflict with them. We are an intermediate appellate court. Thus, Horn’s request that we reconsider the holding in Bolin is inappropriate.
    Still, our supreme court has sometimes revisited previously decided issues. In Mullin v. City of South Bend, 639 N.E.2d 278, 283-84 (Ind. 1994), the court reaffirmed that a governmental entity owes no duty to the public at large and adopted the test set forth in City of Rome v. Jordan, 426 S.E.2d 861, 863 (Ga. 1993), to decide whether such an entity owes a private duty to a particular individual. Then, five years later, in Benton v. City of Oakland City, 721 N.E.2d 224, 228 (Ind. 1999), the court revisited the issue, returned to the general principle that a governmental entity, with limited exceptions, owes a “duty to use ordinary and reasonable care under the circumstances[,]” and concluded that the test adopted in Mullin should only be applied when a governmental unit is alleged to have breached a duty to provide emergency services. Both opinions were unanimous and authored by Justice Sullivan.
    Likewise, in Baldwin v. Reagan, 715 N.E.2d 332, 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, 653 N.E.2d 77, 79-80 (Ind. 1995), and Taylor v. State, 639 N.E.2d 1052, 1054 (Ind. Ct. App. 1994)].” But only a few months later in State v. Gerschoffer, 763 N.E.2d 960, 966 (Ind. 2002), the court disregarded Baldwin, and held that sobriety checkpoints, in which police stop motorists without probable cause or reasonable suspicion, do not per se violate Article I, Section 11.     
    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, 506 N.E.2d 7, 12 (Ind. 1987) (Shepard, C.J., concurring), Chief Justice Shepard agreed with the majority that the pecuniary loss rule had been the court’s long-standing interpretation of the previous version of the child wrongful death statute. But the Chief Justice also stated that he did “not believe that the separation of powers prohibits the judicial department from altering its view on the meaning of the statute” which “is still simply a matter of judicial construction.” Id.
    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., 42 S.W.3d 508, 512 (Ark. 2001), the Arkansas Supreme Court overruled its earlier interpretation of Arkansas’ wrongful death statute and held that a viable fetus is a “person” within the meaning of that statute. If our supreme court were to overrule Bolin, it would do no harm. As discussed below, for more than thirty years, from 1971 until Bolin was decided in 2002, tortfeasors had no legitimate expectation of immunity from a wrongful death cause of action for the prenatal death of a viable fetus.
    In Moragne v. State Marine Lines, Inc., 398 U.S. 375, 403 (1970), when the United States Supreme Court overruled longstanding precedent and recognized a wrongful death action under general maritime law, the court stated:
[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 Bolin “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.

(Citation omitted). Before it was recodified, 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 divorce 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.”
    In Britt v. Sears, 150 Ind. App. 487, 277 N.E.2d 20, 21 (1971), this court addressed an issue of first impression, namely, whether the father of “a full term healthy male capable of independent life” but was stillborn as a result of a fetal injury that occurred when the mother was nine months and one week pregnant could maintain a wrongful death action under Section 34-1-1-8. Acknowledging that the applicable statute did not define the term “child,” this court held “that ‘a full term healthy male capable of independent life’ with which its mother, at the time of its death in her womb, ‘was then nine months and one week pregnant’ is a ‘child’ within the meaning of the statute[.]” Id. at 27. Thus, under our 1971 decision in Britt, parents could bring a wrongful death action against a tortfeasor for causing the death of their unborn child capable of independent life. See footnote
    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, 506 N.E.2d at 8, our supreme court reaffirmed that “the pecuniary loss rule [was] the law in Indiana.” As we have noted, Chief Justice Shepard wrote a separate opinion in Miller in which he agreed that the pecuniary loss rule applied and that it “has been the long-standing interpretation given” to Section 34-1-1-8, but suggested that it would not be inappropriate for the court to revisit its long-standing interpretation of Section 34-1-1-8. Id. at 12 (Shepard, C.J., concurring in result).
    Only one month after the Miller opinion, the legislature approved Public Law 306-1987, which significantly amended Section 34-1-1-8. See footnote The 1987 amendments were important for two reasons: (1) the legislature included a definition of “child” in the statute (which is the same definition of “child” as in the current statute), and (2) the legislature expanded the damages recoverable under the statute to include damages for the loss of the child’s love and companionship. It is clear that the legislature passed the 1987 amendments primarily to expand the type of damages recoverable under the statute. See footnote But the question presented in Bolin was what the legislature intended when it defined “child” under the statute. See footnote
    As our supreme court observed in Bolin, 764 N.E.2d at 207, child wrongful death claims are “entirely a creature of statute.” And “[b]ecause [the] statute is in derogation of the common law,” the court construed it strictly against the expansion of liability. Id. However, this court’s decision in Britt was still good law in 1987. Indeed, Britt had been on the books for more than fifteen years by the time the legislature added the definition of “child” to the statute.
    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.E.2d 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, 739 N.E.2d 1086, 1092 (Ind. Ct. App. 2000) (stating we must assume that legislature is mindful of both court decisions and existing law), trans. denied. In other words, in 1987, when the legislature expanded the scope of recovery under the statute beyond the pecuniary loss rule and defined “child,” the statute unmistakably superseded Miller but did not likewise repudiate our holding in Britt that an unborn child capable of life outside the womb is a “child.”

The logical conclusion to be drawn is that[] by defining a child as someone who [is] “unmarried” and “without dependents[,]” the [l]egislature showed that it did not intend to permit for recovery under both statutes. Apparently, it was the [l]egislature’s judgment that once 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 34-23-2-1. See Ind. Code § 34-23-1-2. 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. § 34-23-1-2(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 Britt, and an examination 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, 813 N.E.2d 422, 429 (Ind. Ct. App. 2004), trans. denied, “we do not ordinarily read requirements into statutes.” And as our supreme court has stated, “[n]othing may be read into a statute which is not within the manifest intention of the legislature as ascertained from the plain and obvious meaning of the words of the statute.” Indiana Civil Rights Comm’n v. Indianapolis Newspapers, Inc., 716 N.E.2d 943, 946 (Ind. 2002). While the court’s decision in Bolin drew the line and created a “born alive” test, that test cannot be found in the statute.

(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. § 16-18-2-365. A viable fetus is a fetus that can live independently from its mother. See footnote Thus, our legislature has made it an act of murder for a person to knowingly or intentionally kill a fetus that has attained viability. See Ind. Code § 35-42-1-1(4).
    Advances in obstetrics and neonatology have compelled the courts in all jurisdictions to abandon the early common law notion established 120 years ago in Dietrich v. Inhabitants of North Hampton, 138 Mass. 14 (1884) (per Holmes, J.), that a fetus and its mother are a single entity. See Atkinson v. United States, 825 F.2d 202, 207 (9th Cir. 1987) (Noonan, J., concurring). Thus, we respectfully disagree with Bolin that a viable fetus is not an individual and that the term “individual” as used in the child wrongful death statute applies only to children born alive. See footnote
    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, 410 U.S. 113, 158 (1973), which held that the word “person,” as used in the Fourteenth Amendment, does not include the unborn. The question before us here does not concern the rights of the unborn; rather, this case is about the rights of parents. The issue here is not whether a viable fetus is a “person” but whether it is an “individual” under the statute. We believe that it is. See footnote
    In Bolin, 764 N.E.2d at 201, our supreme court noted that “[i]f a statute is susceptible to multiple interpretations . . . we must try to ascertain the legislature’s intent and interpret the statute so as to effectuate that intent.” The court also stated that our courts “presume the legislature intended logical application of the language used in the statute so as to avoid unjust or absurd results.” Id. at 204. Under Bolin’s interpretation of the statute, a person whose wrongful act results in the death of a viable fetus owes no civil duty to the parents and is not a tortfeasor, even if that same person is convicted of feticide based on the same facts. That outcome is not only incongruous, but it is also an anomaly in Indiana law. We do not believe the legislature intended such an unjust result.
    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, 138 Mass. at 14-15. The mother had a verdict for her damages. The issue was whether an action could be maintained for the wrongful death of her child. The court observed that “no case, as far as we know, has ever decided that, if the infant survived, it could maintain an action for injuries received by it” and that “a pretty large field of litigation has been left unexplored until the present moment.” Id. at 15-16. The court held that an action could not be maintained for the death of the child, who was not a person under the Massachusetts statute, and reasoned that “as the unborn child was a part of the mother at the time of the injury, any damage to it which was not too remote to be recovered for at all was recoverable by her . . . .” Id. at 17 (emphasis added). Likewise, in Bolin, our supreme court concluded that a viable fetus is not an individual under the child wrongful death statute, but that negligently injured expectant mothers are not without recourse, and the mother “may claim damages to compensate her for her miscarriage.” 764 N.E.2d at 207-08.
    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 Section 34-23-2-1.

As the court further explained in Collins, 644 N.E.2d at 78, legislative classification under Article I, Section 23 must be “based upon substantial distinctions germane to the subject matter and the object to be attained.” (Citation omitted). In other words,
[t]he 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 legislation 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 “[p]arents 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 scrutiny of Collins, See footnote there is no inherent distinction between parents of a child born alive and parents of a viable unborn fetus. Both groups of parents have the same interest at stake, namely, the wrongful death of their child, and they suffer the same loss. Both groups of parents have suffered the loss of a child by a wrongful act and are in the same class for purposes of Article I, Section 23. Any distinction between the two groups of parents is a distinction without a constitutional difference.
    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. Slip op. at 25. This is a convenient characteristic which appears “to divide or identify a class.” Collins, 644 N.E.2d at 78. But the additional litigation cost to prove viability is not an “inherent characteristic” of the parents of viable unborn children that distinguishes them from parents of children born alive.
    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 Section 35-42-1-1(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 a child born alive, parents of an unborn viable fetus have 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, 764 N.E.2d at 207-08, emphasizes that a woman’s pregnancy may be taken into account in calculating her own damages from the loss of her fetus in a negligence action. However, the same cannot be said for the father of an unborn viable child. We can discern no legitimate explanation for such disparate treatment that is reasonably related to the characteristics that distinguish fathers from mothers of unborn viable children. But that is a question left for another day. In sum, we hold that under our supreme court’s interpretation of the child wrongful death statute in Bolin, as applied to these facts, the statute violates Article I, Section 23 of the Indiana Constitution.

MATHIAS, Judge, concurring in result


I respectfully concur in result. I believe that the entirety of Horn’s argument is controlled by Bolin v. Wingert, 764 N.E.2d 2001 (Ind. 2002). This court need proceed no further.
I take issue with the majority’s creation of the 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 scrutiny 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 of powers, namely the doctrine 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 23, 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 related to the subject matter of the legislation “require, necessitate, or make expedient different or exclusive legislation with respect to members of the class.” 644 N.E.2d 72, 78 (Ind. 1994). The litigation cost to prove viability, which is likely to increase significantly as medical technology allows fetuses to achieve viability at earlier stages, is just such a difference. Very closely analogous differences and considerations support the constitutionality of the Workers Compensation Act and the Medical Malpractice Act. While reasonable persons might differ on whether to distinguish between classes of injured persons on the basis of the litigation cost of proving viability, it is the prerogative of the legislative branch to do so.
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.

(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.

(Emphases added). The promise of Collins has not been realized. As Judge Barnes notes in the lead opinion in Morrison v. Sadler, Cause No. 49A02-0305-CV-447, slip op. at 10 (Ind. Ct. App. Jan. 20, 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 Laramore, Indiana Constitutional Developments: The Wind Shifts, 36 Ind. L. Rev. 961, 962 (2003) (stating “[A]lthough 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.”).