Horn v. Hendrickson
| Decision Date | 29 March 2005 |
| Docket Number | No. 82A05-0402-CV-83.,82A05-0402-CV-83. |
| Citation | 824 N.E.2d 690 |
| Parties | Brittany HORN, Individually, and Brittany Horn, as parent and Natural Guardian of Libby Ann Scott, Deceased, Appellants-Plaintiffs v. Kristi L. HENDRICKSON and Eric W. Scott, Appellees-Defendants. |
| Court | Indiana Appellate Court |
Daniel A. Barfield, Gerling Law Offices, Evansville, IN, Attorney for Appellants.
John H. Shean, Shean Law Offices, Bloomington, IN, Attorney for Amicus Curiae.
James D. Johnson, Max E. Fiester, Rudolph, Fine, Porter & Johnson, LLP, Evansville, IN, Attorneys for Appellees.
Brittany 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:
We affirm.
On July 10, 2001, Horn was six-months pregnant and a passenger in Eric Scott's vehicle. Scott 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, 2003, Horn filed a two-count complaint against Hendrickson, alleging that the stoplight which guarded the intersection where the collision 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.
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., 801 N.E.2d 642, 644-45 (Ind.Ct.App. 2003). Dismissal for failure to state a claim is proper if it is apparent that the facts alleged in the complaint are incapable of supporting relief under any set of circumstances. Id.
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, 764 N.E.2d at 207, held that "only children born alive fall under Indiana's Child Wrongful Death Statute." But Horn raises multiple arguments why Bolin should not apply in this case, including that Bolin is distinguishable on its facts, that the holding in Bolin constitutes obiter dictum, and that Bolin was wrongly decided. Horn also maintains that the court's interpretation of the statute in Bolin renders the statute unconstitutional. We address those arguments in turn.2
In Bolin, Rebecca Bolin's car was struck from behind by a vehicle driven by Brandon Wingert. The impact proximately caused Bolin to miscarry 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: Bolin, 764 N.E.2d at 203. In the remainder of the opinion the court explained its rationale and ultimately concluded that "only children born alive" fall under the statute. Id. at 207.3
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., 551 N.E.2d 437, 443 (Ind.1990)
(citing Szilagyi v. State ex. rel. La Porte Cmty. Sch. Corp., 249 Ind. 400, 410, 233 N.E.2d 181, 183 (1967)). In Bolin the court not only concluded that an eight- to ten-week-old fetus does not fit the definition of "child," 764 N.E.2d at 203, but declared that when the legislature enacted the statute, it "intended that only children born alive fall under [it]." Id. at 207. Thus, Horn has made a credible argument that Bolin addressed a larger question than the facts required.
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 non-viable 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, 774 N.E.2d 103, 107 (Ind.Ct. App.2002), trans. granted, then grant of trans. vacated:
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, 263 Ga. 26, 426 S.E.2d 861, 863 (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., 344 Ark. 627, 42 S.W.3d 508, 512 (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. States Marine Lines, Inc., 398 U.S. 375, 403, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), when the United States Supreme Court overruled long-standing precedent and recognized a wrongful death action under general maritime law, the court...
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