Bolin v. Wingert
2002 WL 378192, 764 N.E.2d 201, 2002 Ind. LEXIS 198 (2002)
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Rule of Law:
Indiana's Child Wrongful Death Statute, which defines a "child" as an "unmarried individual without dependents," does not permit a cause of action for the death of a non-viable fetus. The statutory language contemplates a person who has been born alive.
Facts:
- On April 13, 1996, Rebecea Bolin was eight to ten weeks pregnant.
- While driving, Bolin stopped her vehicle in the roadway, waiting for the car ahead of her to turn.
- A vehicle driven by Brandon Wingert struck Bolin's car from behind.
- As a result of the collision, Bolin suffered several injuries, including a miscarriage.
Procedural Posture:
- Rebecea and Calvin Bolin filed a lawsuit against Brandon Wingert in an Indiana trial court.
- Count III of the Bolins' complaint sought damages for the wrongful death of their unborn child.
- Wingert moved for partial summary judgment on the wrongful death claim, arguing the statute did not permit such recovery.
- The trial court granted Wingert's motion for partial summary judgment.
- The Bolins, as appellants, appealed to the Indiana Court of Appeals.
- The Court of Appeals affirmed the trial court's ruling, holding that a wrongful death claim was only available for a "viable" fetus and the Bolins had not presented evidence of viability.
- The Bolins sought review from the Indiana Supreme Court.
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Issue:
Does an eight-to ten-week-old, non-viable fetus constitute a "child" under Indiana's Child Wrongful Death Statute, thereby allowing parents to recover damages for its death?
Opinions:
Majority - Shepard, Chief Justice
No. An eight-to ten-week-old fetus does not fit the definition of a "child" under Indiana's Child Wrongful Death Statute. The court reasoned that its task is one of statutory interpretation, not a moral or philosophical determination. The statute defines a "child" as an "unmarried individual without dependents" under a certain age. The court found that these terms—particularly "unmarried" and "without dependents"—involve activities and statuses applicable only to living persons who have been born. To apply these terms to a fetus would strain the language and lead to an illogical result. Furthermore, because wrongful death statutes are in derogation of the common law, they must be construed strictly against the expansion of liability. The court also noted that when the state legislature intends to protect unborn children, it does so with explicit language, as seen in statutes criminalizing feticide and the trafficking of fetal tissue; such explicit language is absent here. The court clarified that while a wrongful death claim is not available, the mother may still recover damages for her own injuries, which includes the pain and suffering associated with the miscarriage.
Analysis:
This decision establishes a clear "born alive" rule for claims under Indiana's Child Wrongful Death Statute, definitively excluding non-viable fetuses from its scope. By relying on strict statutory construction and legislative intent, the court reinforces the principle that creating new causes of action, especially those unknown at common law, is the legislature's prerogative. This ruling limits the scope of tort liability for prenatal injuries resulting in miscarriage, distinguishing civil wrongful death from criminal feticide and placing the burden on lawmakers to explicitly amend the statute if they wish to include unborn children.
