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Horn v. Hendrickson3/29/2005
987. Indeed, Britt had been on the books for more than fifteen years by the time the legislature added the definition of "child" to the statute.
It is true that the legislature has expressly referred to viable unborn children in other parts of the Indiana Code. But we cannot agree that " he fact that the legislature did not expressly include unborn children within the definition of `child' in the [statute]" means that only children born alive fit within the definition of "child." Bolin, 764 N.E.2d at 207. Instead, given that Britt was established law in 1987 when the statute was amended, if the legislature had intended to exclude viable unborn children from the definition of "child," it would have clearly expressed its intention to nullify Britt when it defined the term "child." See Burke v. Town of Schererville, 739 N.E.2d 1086, 1092 (Ind. Ct. App. 2000) (stating we must assume that legislature is mindful of both court decisions and existing law), trans. denied. In other words, 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the scope of recovery under the statute beyond the pecuniary loss rule and defined "child," the statute unmistakably superseded Miller but did not likewise repudiate our holding in Britt that an unborn child capable of life outside the womb is a "child."
Statutes in Pari Materia
Our second concern with Bolin is that the court did not apply a fundamental rule of statutory construction, namely, the rule that in construing a particular statute, related statutes are in pari materia and should also be considered to effectuate legislative intent. "`Where statutes address the same subject, they are in pari materia, and we harmonize them if possible.'" Hall Drive Ins., Inc. v. City of Fort Wayne, 773 N.E.2d 255, 257 (Ind. 2002) (citation omitted); see also Clark v. Kenley, 646 N.E.2d 76, 78 (Ind. Ct. App. 1995) (stating statutes which address same subject matter are in pari materia and should be construed together to produce harmonious result), trans. denied.
In concluding that the term "child" only includes children born alive, the court in Bolin addressed four "concepts" that appear in the statute's definition of "child": "an (1) unmarried, (2) individual, (3) without dependents, (4) who is less than twenty years of age." 764 N.E.2d at 206. The court concluded that those terms "tend to indicate the legislature contemplated that only living children would fall within the definition of `child.'" Id. The court, however, did not look to Indiana's other wrongful death statutes for guidance on the use of those terms and how they should be interpreted. We agree with Horn that the legislature used the terms "unmarried," "without dependents," and "who is less than twenty years of age" to distinguish child wrongful death claims from claims under the general wrongful death statute. Horn points out in her brief that:
[The statute] defines a child as [an individual] under age twenty or under age twenty-three, if the child is enrolled in an institution of higher education or vocational school. It is possible for a person under age twenty or [under age twenty-three] in college or vocational school to be married and/or have children. If a person in that situation were to die as a result of a tort[,] and [the statute] did not exclude married persons and those with dependents from coverage . . ., the wife and/or children of the deceased [under the general wrongful death statute], and the deceased parents [under the statute], would all have claims for loss of love and affection.
The logical conclusion to be drawn is that by defining a child as someone who "unmarried" and "without dependents[,]" the egislature showed that it did not intend to permit f
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