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Horn v. Hendrickson3/29/2005
or recovery under both statutes. Apparently, it was the egislature's judgment that once a person becomes an "adult" by marrying, having a child, graduating [from] college or vocational school, or reaching the age of twenty, the parents' connection with the child may be too tenuous (or nonexistent) to support a claim for the loss of love and affection.
Brief of Appellant at 22 (citation omitted, emphasis added). And, as Horn notes, the legislature continued along this path in 1999 when it enacted the adult wrongful death statute, which defines an "adult person" as an unmarried individual who does not have dependents and who is not a child, as defined in Indiana Code Section 34-23-2-1. See Ind. Code § 34-23-1-2. Moreover, in order for a parent or child of the adult person to recover damages under the statute, the parent or child has the burden of proving "a genuine, substantial, and ongoing relationship with the adult person[.]" I.C. § 34-23-1-2(f).
When Indiana's three wrongful death statutes are read together in pari materia, it seems clear that the terms "unmarried," "without dependents," "less than twenty years of age," and "less than twenty- three years of age and . . . enrolled in an institution of higher education or . . . vocational school" were not included in the statute's definition of "child" in order to exclude an unborn viable fetus. Rather, the legislature included those terms to avoid the enactment of redundant statutes and the duplication of wrongful death claims.
Our long-standing decision in Britt, the legislature's failure to clearly repudiate Britt, and an examination of the language used to define "child" which correlates perfectly with the other wrongful death statutes, all indicate that the Bolin opinion read a "born alive" requirement into the statute which is not there. As this court stated in Mitchell v. State, 813 N.E.2d 422, 429 (Ind. Ct. App. 2004), trans. denied, "we do not ordinarily read requirements into statutes." And as our supreme court has stated, " othing may be read into a statute which is not within the manifest intention of the legislature as ascertained from the plain and obvious meaning of the words of the statute." Indiana Civil Rights Comm'n v. Indianapolis Newspapers, Inc., 716 N.E.2d 943, 946 (Ind. 2002). While the court's decision in Bolin drew the line and created a "born alive" test, that test cannot be found in the statute.
A Viable Fetus Is An Individual
Finally, the pivotal word in the statute is "individual." In order to be a child under the statute, one must be an unmarried individual without dependents who is less than twenty years of age or less than twenty-three years of age and is enrolled in an institution of higher education or in a vocational school or program. I.C. § 34-23-2-1(a) (emphasis added). The word "individual" is not defined. We give undefined words in statutes their plain, ordinary meaning. See Armstead v. State, 806 N.E.2d 872, 873 (Ind. Ct. App. 2004), trans. denied; see also Ind. Code § 1-1-4-1(1).
In Bolin, 764 N.E.2d at 206, our supreme court addressed use of the term "individual" as follows:
The words chosen by the legislature to define "child" have accepted public meanings that point in a similar direction. Black's Law Dictionary defines "individual" as "existing as an indivisible entity." Webster's Dictionary says among other things that an "individual" is a being "referred to by a proper name." This is language human beings use to describe to other independently living human beings.
(Citations and brackets omitted). But by definition, a viable fetus is an "individual." Indeed, the viability of the fetus proves its status as a separa
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