Bolin v. Wingert

• Decision Date: 11 March 2002
• Docket Number: No. 87S01-0203-CV-177.,87S01-0203-CV-177.
• Citation: 764 N.E.2d 201
• Parties: Rebecca BOLIN and Calvin Bolin, Appellants (Plaintiffs Below), v. Brandon A. WINGERT, Appellee (Defendant Below).
• Court: Indiana Supreme Court

764 N.E.2d 201

Rebecca BOLIN and Calvin Bolin, Appellants (Plaintiffs Below), v. Brandon A. WINGERT, Appellee (Defendant Below).

No. 87S01-0203-CV-177.

Supreme Court of Indiana.

March 11, 2002.

Glenn A. Deig, Evansville, for Appellants.

Patricia K. Woodring, Shawn M. Sullivan, Terrell, Baugh, Salmon & Born LLP, Evansville, for Appellee. SHEPARD, Chief Justice.

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.

Facts and Procedural History

While driving on April 13, 1996, Rebecca Bolin stopped her car in the roadway, waiting for the car in front of her to turn. Brandon Wingert struck Bolin's vehicle from behind, and Bolin suffered several injuries, including a miscarriage. Bolin was eight to ten weeks pregnant at the time.

On February 5, 1998, Bolin and her husband Calvin filed suit. Count III of their complaint alleged that Wingert caused Bolin's miscarriage and requested compensation for the wrongful death of their unborn child. In response, Wingert moved for partial summary judgment, alleging that the Child Wrongful Death Statute¹ did not provide for such a recovery. The trial court granted Wingert's motion.

The Bolins appealed, and the Court of Appeals held that "child" was not expressly defined by the legislature. Bolin v. Wingert, 742 N.E.2d 36, 37 (Ind.Ct.App. 2001). Relying on a 1972 decision, the court held that only "an unborn viable child" had a claim under the Wrongful Death Statute. Id. at 38 (emphasis in original) (citing Britt v. Sears, 150 Ind. App. 487, 498, 277 N.E.2d 20, 27 (1972)). Because the Bolins had not produced any evidence that the unborn child was "capable of independent life," the Court of Appeals affirmed the trial court's grant of partial summary judgment. Id.

I. Standard of Review

Summary judgment is appropriate only where the evidence shows that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Shell Oil Co. v. Lovold Co., 705 N.E.2d 981 (Ind.1998). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. Id. at 984. An appellant bears the burden of demonstrating it was error to grant summary judgment, though appellate courts scrutinize such rulings carefully to assure that a party was not improperly denied his or her day in court. Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905 (Ind.2001) (citations omitted).

II. The Applicable Wrongful Death Statute

At common law, a person killed by another's tortious acts had no right to recover damages. The victim's dependents 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. See Stuart M. Speiser et al., Recovery for Wrongful Death and Injury § 1.1, 1.8 (1992). Indiana's wrongful death statutes are found at Indiana Code § 34-23-1-1 (general wrongful death statute), § 34-23-1-2 (death of adult persons), and § 34-23-2-1 (injury or death of children).

We first note that appellants cited the wrong version of the Child Wrongful Death Statute to the trial court and Court of Appeals. (See Appellant's Br. at 7.) At the time of the accident in 1996, Indiana's Child Wrongful Death Statute was found at Indiana Code § 34-1-1-8. This version of the statute reflected major legislative revisions made in 1987 and 1989, including the addition of a definition of "child." See P.L. 306-1987; P.L. 33-1989.² The Court of Appeals relied on a version of the statute that preceded the 1987 and 1989 amendments.³

The applicable statute provides that "[a]n action may be maintained under this section against the person whose wrongful act or omission caused the injury or death of a child." Ind.Code Ann. § 34-1-1-8(b) (West 1996). It defines "child" as follows:

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.

Id. at § 34-1-1-8(a). The statute allows parents to recover damages for the loss of the child's services, love, and companionship, as well as expenses such as hospital bills and funeral costs resulting from the child's death. See id. at § 34-1-1-8(e).

The Bolins argue that the definition of "child" encompasses all unborn children. Wingert asserts that Indiana's Child Wrongful Death Statute does not cover unborn fetuses incapable of independent life. (See Appellants' Br. at 5; Appellee's Br. at 6.)

III. Interpreting the Child Wrongful Death Statute

When interpreting a statute, appellate courts independently review a statute's meaning and apply it to the facts of the case under review. If a statute is unambiguous, that is, susceptible to but one meaning, we must give the statute its clear and plain meaning. See Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 942 (Ind.2001)

. If a statute is susceptible to multiple interpretations, however, we must try to ascertain the legislature's intent and interpret the statute so as to effectuate that intent. Id. (citing Whitacre v. State, 629 N.E.2d 1236 (Ind.1994)). We presume the legislature intended logical application of the language used in the statute, so as to avoid unjust or absurd results. Sales v. State, 723 N.E.2d 416, 420 (Ind.2000).

We begin by mentioning what this case is not. It does not call for "any moral, philosophical or theological determination[s] of what constitutes a person or a life." Wade v. United States, 745 F.Supp. 1573, 1577 (D.Haw.1990). While the larger, more politically charged issues in this field are quite apparent, our sole task is to determine the scope of the word "child" in the Wrongful Death Statute.

In the absence of clear legislative guidance, the challenge is where to draw the line against otherwise open-ended liability. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts 287 (5th ed.1984). While this is not always an easy task, we bear in mind Justice Holmes' words: "Neither are we troubled by the question where to draw the line. That is the question in pretty much everything worth arguing in the law." Irwin v. Gavit, 268 U.S. 161, 168, 45 S.Ct. 475, 69 L.Ed. 897 (1925) (citation omitted).

Our research reveals a wealth of court opinions and scholarship on the subject of wrongful death and the unborn child. See, e.g., Sheldon R. Shapiro, Right to Maintain Action or to Recover Damages for Death of Unborn Child, 84 A.L.R.3d 411 (1978 & Supp.2001). Although each state has a uniquely drafted wrongful death statute, courts have generally resolved this question in one of four ways: (1) permit recovery only for the death of children "born alive,"⁴ (2) permit recovery only for the death of "viable" unborn children,⁵ (3) permit recovery for the death of unborn children that are "quick,"⁶ and (4) permit recovery for the death of any unborn child.⁷ See, e.g., Mamta K. Shah, Inconsistencies in the Legal Status of an Unborn Child: Recognition of a Fetus as Potential Life, 29 Hofstra L.Rev. 931, 938-51 (2001); Daniel S. Meade, Wrongful Death and the Unborn Child: Should Viability Be a Prerequisite for a Cause of Action?, 14 J. Contemp. Health L. & Pol'y 421, 426-44 (1998).

Although this scholarship is helpful, we must focus on the language of Indiana's Child Wrongful Death Statute. While the legislature has clearly set upper limits on the definition of "child," it is not as plain that it has placed a "lower" limit on the definition of "child."

A. The Wrongful Death Statute's Express Language. In Britt v. Sears, 150 Ind.App. 487, 277 N.E.2d 20 (1971), the Court of Appeals addressed a prior version of Indiana's Child Wrongful Death Statute that lacked a definition of "child."⁸ The Court of Appeals provided the following thoughtful analysis:

[W]e find no objective reason for saying that the 1881 Legislature which gave the father the right to "maintain an action for the injury or death of a child" did not intend "child" to include a stillborn child. Whatever was in their minds is not recorded and is, at best, a matter of mere supposition. But if we may, arguendo, indulge in our own supposition it would be this: That since actions for pre-natal injuries and deaths were then unknown in Indiana jurisprudence our lawmakers very probably gave no thought to whether they were creating an action for pre-natal injury or pre-natal death, or whether their word "child" was the same word "child" so often used in referring to a pregnant woman as being "with child."

150 Ind.App. at 494, 277 N.E.2d at 24-25.⁹ Without a definition of "child" for guidance, the court concluded that a "full term healthy male capable of independent life" was a "child within the meaning of the statute." 150 Ind.App. at 498, 277 N.E.2d at 27.

The 1987 revisions of the Child Wrongful Death Statute present us with a very different situation today. Rather than relying exclusively upon policy and logic, as the Britt court was forced to do, we are now able to consider the evident intent of the legislature as expressed by the provisions it added to the Indiana Code. These provisions do not support the conclusion the Bolins seek.

We look first to the legislature's basic definition of "child": "an unmarried individual without dependents who is less than twenty (20) years of age." Ind.Code Ann. § 34-1-1-8(a) (West 1996). This definition contains four concepts: an (1) unmarried, (2) individual, (3) without dependents, (4) who is less than twenty years of age.

The first three concepts tend to indicate the legislature contemplated that only living children would fall within the definition of "child." "Unmarried" and "without dependents" involve...