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Horn v. Hendrickson3/29/2005
on "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 Gerschoffer v. State, 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., 42 S.W.3d 508, 512 (Ark. 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. State Marine Lines, Inc., 398 U.S. 375, 403 (1970), when the United States Supreme Court overruled longstanding precedent and recognized a wrongful death action under general maritime law, the court stated:
judicious consideration of precedent cannot be as threatening to public faith in the judiciary as continued adherence to a rule unjustified in reason, which produces different results for breaches of duty in situations that cannot be differentiated in policy.
Here, our supreme court's interpretation of the child wrongful death statute in Bolin "produces different results for breaches of duty in situations that cannot be differentiated in policy." Id. Thus, while Bolin controls on the issue of whether Horn's viable fetus is deemed a "child" under the statute, we write to explain why we believe the court should reconsider the Bolin opinion.
Britt v. Sears
The court in Bolin set forth the four most common resolutions to the issue whether parents of an unborn child may recover under a child wrongful death statute: (1) permit recovery only for the death of children "born alive," (2) permit recovery only for the death of "viable" unborn children, (3) permit recovery for the death of unborn children that are "quick," and (4) permit recovery for the death of any unborn child. Bolin, 764 N.E.2d at 205 (citations omitted). As we know, the court held that under the statute, our legislature intended to permit recovery only for the death of children born alive. But an examination of the history of the statute, together with Indiana's other two 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.
As the court explained in Bolin, 764 N.
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