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Horn v. Hendrickson3/29/2005
FOR PUBLICATION
STATEMENT OF THE CASE
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:
1. Whether a viable fetus is a "child" under Indiana's child wrongful death statute, Indiana Code Section 34-23-2-1 ("the statute").
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.
FACTS AND PROCEDURAL HISTORY
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.
DISCUSSION AND DECISION
Standard of Review
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.
Issue One: Indiana's Child Wrongful Death Statute
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: "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 conc
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