Judge, RILEY, dissenting with separate opinion.

I respectfully dissent from the majority's decision to affirm the trial court's grant of partial summary judgment in favor of the Appellees. In essence, the majority's opinion refuses to "proceed in direct conflict with controlling supreme court precedent," while at the same time, it implicitly acknowledges that the result reached in Bolin v. Wingert, 764 N.E.2d 201 (Ind. 2002) is wrong. Op. pp. 3-4.

Traditionally, based upon the doctrine of stare decisis, we are bound by the decisions of our supreme court until the decision is changed either by that court or by legislative enactment. In re Petition to Transfer Appeals, 202 Ind. 365, 174 N.E. 812, 817 (1931). In this light, stare decisis gives stability and continuity to our case law. However, exceptions can be made: when the reasoning of a precedent is patently flawed or it has no contemporary relevance, it must be set aside.

Principles of law which serve one generation well may, by reason of changing conditions, disserve a later one. Experience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better. The adaptability of the common law to the changing needs of passing time has been one of its most beneficent characteristics. A court, when once convinced that it is in error, is not compelled to follow precedent. If, however, stare decisis is to continue to serve the cause of stability and certainty in the law — a condition indispensable to any well-ordered system of jurisprudence — a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it.

Herald Publishing Co. v. Bill, 142 Conn. 53, 111 A.2d 4, 8-9 (1955) (internal quotations omitted). In my opinion, Bolin represents a fallacy and no longer has any contemporary relevance. Judicial honesty dictates corrective action.

I. Individual under the Child Wrongful Death Act.

Both the trial court's grant of Appellees' motion for partial summary judgment and the majority's decision to affirm the trial court are based on our supreme court decision in Bolin which instituted a bright line test that in order for the Child Wrongful Death Act to be applicable, the child has to be born alive. However, reviewing Indiana's case law on the issue, it appears that Bolin represents a complete turnaround of our courts' previous position.

A. Case Law Prior to Bolin v. Wingert

In Britt v. Sears, 150 Ind.App. 487, 277 N.E.2d 20, 21 (Ind.Ct.App. 1971), reh'g denied, this court addressed the issue of first impression whether the father of "a full term healthy male capable of independent life" but 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 the then applicable statute I.C. § 34-1-1-8. Researching the decisions and opinions of courts in other common law jurisdictions, the Britt court discovered opposite conclusions. Id. at 22. It noted that of the twenty-five jurisdictions who had decided the identical question, seventeen states had answered the question in the positive, while eight states held that no action could be maintained. Id.

Turning to the historical genesis of actions for the wrongful prenatal death of a child, the Britt court approvingly quoted at length from Minnesota's supreme court decision Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838, 839 (1949). In Verkennes, the court rejected the premise that the unborn child is a part of the mother. Id. Instead, it concluded that "It seems too plain for argument that where independent existence is possible and life is destroyed through a wrongful act a cause of action arises under the statutes cited." Id. at 841. Nevertheless, the Britt court also observed that based upon a particular state's statute, several states which permit a living child to maintain an action for a tortuous injury suffered before a birth, deny a similar cause of action in case of a prenatal injury where the child is not born alive. Id. at 23-24.

Recognizing that any action is purely a creature of statute, the Britt court turned its focus to Indiana's statute. Id. at 24. The statute applicable at the time of the Britt decision had been enacted in 1881 and gave the father the right to maintain an action for the injury or death of a child. Id. Interpreting the statute, the court stated that because actions for pre-natal injuries and deaths were relatively uncommon in 1881, the legislature probably did not consider the issue before the court when using the word "child" in the statute. Id., at 24-25. However, the court noted that in many other instances the law did recognize the unborn child as a person. Id. at 25. In this light, the Britt court referenced early common law, Indiana's common law with regard to property and inheritance rights, and several Indiana statutes. Id. at 25, 26.

In concluding remarks, the court stated that "it is both just and logical to treat an unborn child who has been 280 days in gestation as having a legal being and legal personality distinct from that of its mother although it is enclosed in its mother's body and therefore dependent upon her breath for oxygen and upon her food for nourishment." Id. at 26. As such, the 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.

The following year, our supreme court decided Cheaney v. State, 259 Ind. 138, 285 N.E.2d 265 (1972), cert. denied, 410 U.S. 991, 93 S.Ct. 1516, 36 L.Ed.2d 189 (1973), in which the court upheld a criminal abortion conviction. In its opinion, the supreme court observed that throughout the years, unborn children gained rights in different areas of the law. Id. at 270. Specifically, the supreme court analyzed an unborn child's rights in the area of property ( Id. at 267), support ( Id. at 269), and a mother's medical wishes in light of freedom of religion ( Id. at 269). Most notably, in the field of torts, the Cheaney court noted that "it was held for many years that the unborn child was part of the mother and no recovery was allowed for the injury to the unborn child. . . . However, as we gained more knowledge medically, legal attitudes started changing." Id. at 268. In its analysis, the supreme court approvingly referenced the Britt case as "holding that a father could maintain an action for the wrongful death of a stillborn child." Id., As in Britt, our supreme court also stated that "many of the cases cling to a viability distinction whereby a recovery is allowed only if the unborn child is viable." Id. However, pointing to advances in the medical field, the Cheaney court also noted that a number of cases have rejected the viability distinction when allowing recovery for injuries to an unborn child. Id. Interestingly, the Cheaney court appeared to lean towards taking the Britt decision one step further by, after quoting several out-of-state decisions, concluding that "[i]t is clear that the legal distinction of viability in the field of torts is losing acceptance as we gain more knowledge that biologically it is merely an arbitrary distinction." Id., at 269.

For the next thirty-one years, until our supreme court handed down Bolin in March of 2002, the Britt decision would govern any action for the wrongful death of an unborn child capable of independent life. As shown above, prior to Bolin, Indiana's courts were focused on protecting the rights of the unborn.

B. Bolin v. Wingert

In Bolin v. Wingert, 764 N.E.2d 201, 203 (Ind. 2002), Rebecca Bonn's car was struck from behind by a vehicle driven by Wingert. The impact proximately caused Bolin to miscarry her eight-to ten-week-old fetus. Id. The trial court granted Wingert's motion for summary judgment on the Bolins' claim for the wrongful death of their unborn child. Id. The Bolins appealed. Id.

On appeal, the court of appeals based its analysis on the Britt decision. Bolin v. Wingert, 742 N.E.2d 36 (Ind.Ct.App. 2001). Focusing on the "viability" element of Britt, the court of appeals concluded that no evidence was presented establishing that the Bolins' unborn child was capable of independent life. Id. at 38. As such, the Child Wrongful Death Act was not applicable. Id.

Our supreme court affirmed but for different reasons. In the first and second sentences of its unanimous opinion, the supreme court states: "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, 764 N.E.2d at 203. Recognizing the different and uniquely drafted wrongful death statutes of other states, the Bolin court divided all case law into four groups: (1) recovery is permitted but only for the death of children born alive; (2) recovery is permitted for the death of viable unborn children; (3) recovery is permitted for the death of unborn children that are quick; and (4) recovery is permitted for the death of any unborn child. Id. at 205.

Turning to Indiana's statute, the court noted the statute's inclusion of an upper age limit and its omission of a lower age limit. Id. Acknowledging that the Britt court relied exclusively on policy and logic, the supreme court noted that because of the 1987 revisions to the Child Wrongful Death Act the court could now consider the intent of the legislature as expressed by the provisions it added to the Indiana Code. Id. at 206. In concluding that the term "child" only includes children born alive, the Bolin court addressed four "concepts" that appear in the statute's definition of a "child": "an (1) unmarried, (2) individual, (3) without dependents, (4) who is less than twenty years of age." Id. The court stated that those terms "tend to indicate the legislature contemplated that only living children would fall within the definition of `child.'" Id. As a result, the Bolin court instituted a bright line test that only a child born alive fits the definition of "child" under the Child Wrongful Death Act. Id. at 207. It categorically precludes all parents from bringing a wrongful death claim for the death of a viable or non-viable, unborn child.

C. Post-Bolin Case Law

Three years after the Bolin decision, this court issued its well-reasoned opinion in Horn v. Hendrickson, 824 N.E.2d 690 (Ind.Ct.App. 2005), wherein the mother filed a claim under Indiana's Child Wrongful Death Act for the death of her viable, six-month old fetus as a result of an automobile accident. Although the Horn court followed Bolin with regard to the wrongful death claim, the opinion itself amounts to an extensive and forceful criticism of Bonn's analysis and result. Stating that "it is not this court's role to reconsider or declare invalid decisions of our supreme court," the Horn court points to several examples where our supreme court revisited previously decided issues. Id. at 694-95. Noting that it nevertheless would be following the Bolin precedent, the Horn court stated that "we write to explain why we believe the court should reconsider the Bolin opinion." Id. at 694. The Horn court continues by formulating three main criticisms to the Bolin decision.

First, "an examination of the history of the statute, together with Indiana's two other wrongful death statutes, supports a conclusion that our legislature intended to permit recovery not only for the death of children born alive but also for the death of viable unborn children." Id. at 696. For many years prior to its recodification in 1987, the original Child Wrongful Death Act did not include a definition of "child." Id. at 696. As a result, the Britt court interpreted the statute and concluded that parents could bring a wrongful death action against the tortfeasor for causing the death of their unborn child capable of independent life. Id. at 697.

Following the Britt decision, the Horn court notes our supreme court opinion in Miller v. Mayberry, 506 N.E.2d 7, 12 (Ind. 1987), which reaffirmed Indiana's longstanding pecuniary loss rule 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. Id. However, only one month after the Miller opinion, our legislature approved Public Law 306-1987, which significantly amended the original the Child Wrongful Death Act. Id. These 1987 amendments are important for two reasons: (1) the legislature included a definition of "child" (which is the same as in the current statute), and (2) the legislature expanded the damages recoverable under the statute to now include damages for the loss of the child's love and companionship. Id.

Based on this statutory history, the Horn court concludes that "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," which had been Indiana's precedent since 1971 and had been on the books for more than fifteen years by the time the legislature amended the statute in 1987. Id. at 698.

The Horn court's second criticism of Bolin revolves around the doctrine of Statutes in Pari Materia. Horn blatantly states that the Bolin decision did not apply this doctrine and failed to construe the Child Wrongful Death Act in light of related statutes. Id. Pointing to the Adult Wrongful Death statute, enacted in 1999, Horn notes that an "adult person" is defined as an unmarried individual who does not have dependents and who is not a child. Id. Moreover, in order for a parent or child of the adult person to recover damages, the parent or child has the burden of proving a genuine, substantial, and on-going relationship with the adult person. Id. Reading the statutes together, the Horn court concludes that the terms of the Child Wrongful Death Act (unmarried, without dependents, less than twenty years of age and . . . enrolled in an institution of higher education or vocational training) were included to avoid the enactment of redundant statutes and the duplication of wrongful death claims. Id. at 699.

Lastly, the Horn court focuses on the pivotal word " individual," as included in the statute. Initially, Horn notes that by definition an individual is a viable fetus and states that our legislature has already defined viability to mean "the ability of a fetus to live outside the mother's womb." Id. at 700; I.C. § 16-18-2-565. Furthermore, advances in obstetrics and neonatology have compelled courts in all jurisdictions to abandon the early common law doctrine that a fetus and its mother are a single entity.

Carefully delineating the issue before it, the Horn court indicates that "this case is not about a zygote or an embryo or when life begins," but about the rights of parents. Id. "The issue is not whether a viable fetus is a `person' but whether it is an `individual' under the statute. We believe that it is." Id. Disputing Bolin's interpretation, Horn points out that Bolin leads to incongruous results: under Bolin, 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. Id. at 701.

In light of these three criticisms, the Horn court concludes with a forceful rebuke directed at our supreme court. "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." Id.

It is abundantly clear that the Bolin decision no longer has any contemporary value and requires modification to serve justice better, especially when a viable fetus is concerned. Therefore, I would vote to reverse the trial court in its grant of partial summary judgment to Appellees.

II. Constitutional Challenge

With regard to Ramirez' argument that differential treatment is afforded to mothers as opposed to fathers of unborn children in violation of Article I, Section 23, the Privileges and Immunities Clause of the Indiana Constitution, the majority relies on McVey v. Sargent, 855 N.E.2d 324 (Ind.Ct.App. 2006) to deny his challenge.

In Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994), our supreme court established the following two-part test to be applied to claims under Art. I, Section 23:

First, the disparate treatment accorded by the legislature 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, legislative classification under Art. I, Section 23 must be "based upon substantial distinctions germane to the subject matter and the object to be attained." Id. at 78. 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 situations 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.

Although the majority relies on McVey, a similar argument was addressed in Horn. Specifically, Horn analyzed whether the Child Wrongful Death Act, violates Indiana's Equal Privileges and Immunities Clause when it differentiates between parents of a child born alive and parents of a viable fetus. Horn, 824 N.E.2d at 701. The Horn court answered this question in the affirmative. Id. Emphasizing that the Act confers rights on the parents, not on the children, the Horn court noted that both groups of parents have the same interest at stake, namely, the wrongful death of their child, and they suffer the same loss. Id. at 702. However, in dicta, the Horn court addressed the question raised by Ramirez today — different treatment of mother versus father — and stated that "[w]e 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." Id. at 703.

McVey, almost in passing, also analyzed the issue raised by Ramirez, and determined that inherent characteristics existed that warranted the different treatment under Article I, Section 23 of the Indiana Constitution. McVey, 855 N.E.2d at 328. McVey's sole argument rested on the premise that "[w]hen a mother's damages from another's negligence include a miscarriage, she has suffered resulting physical pain and medical treatment; a father has not." Id.

While I recognize that I voted with the majority in McVey, now, after renewed contemplation, I find that McVey was wrongly decided. I believe that McVey's reasoning does not satisfy the Collins test. See Collins, 644 N.E.2d at 80. Collins explicitly mandates that the legislative classification "must involve something more than mere characteristics which will serve to divide or identify a class. There must be inherent differences in situations 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. As such, "the physical pain and medical treatment" suffered by a mother amount to the physical characteristics that identify mothers from fathers. Inherently, both mother and father are a parent, eagerly awaiting the arrival of a child and looking forward to holding a newborn. Due to negligence of another, both mother and father lose a child. Like the Horn panel, I can perceive no legitimate reason to enforce disparate treatment between the mothers and fathers of viable, unborn children.

In light of this dissent, the Horn decision, and this majority's decision, I implore the parties here to seek transfer to the supreme court, requesting a modification of its Bolin decision.