OPINION
BAILEY, Judge.
Case Summary
Savannah Linley Ann Nelson Ramirez ("S.R."), by her father, Stephen Ramirez ("Ramirez"), appeals the trial court's grant of partial summary judgment in favor of James A. Wilson ("Wilson") and Suzy-Q Trucking, LLC (collectively, "the Appel-lees") upon a claim under Indiana's child wrongful death statute, Indiana Code Seetion 34-23-2-1 ("the statute"). We affirm.1
Issues
Ramirez raises two issues:
I. Whether the trial court erroncously granted partial summary judgment upon a determination that a full-term fetus is not a "child" under the statute; and
II. Whether the statute, as interpreted by our Supreme Court in Bolin v. Wingert, 764 N.E.2d 201 (Ind. [2]*22002), violates the privileges and immunities clause of the Indiana Constitution.
Facts and Procedural History
On March 21, 2007, Megan Nelson ("Nelson"), who was then nine months pregnant with S.R., was driving a vehicle on State Road 10 in Newton County, Indiana. Wilson, the owner-operator of Suzy-Q Trucking, LLC, was driving a semi tractor in the opposite direction. During a passing maneuver, the vehicle and semi collided head-on. Nelson was killed and S.R. died in utero.
On April 10, 2007, Ramirez filed a complaint under the statute, alleging that he was S.R.'s father and that Wilson's negligence caused S.R.'s death. The Special Administrator of Nelson's estate also pursued a wrongful death claim against the Appellees for the death of Nelson.2 On February 29, 2008, the Appellees filed a motion for partial summary judgment, asserting that the statute is inapplicable because S.R. was not born alive, and thus the Appellees were entitled to judgment as a matter of law.
On April 29, 2008, the trial court heard argument on the motion for partial summary judgment. At the conclusion of the hearing, the trial court indicated that it was bound by the Bolin decision to grant the motion for partial summary judgment. The trial court certified the order pursuant to Indiana Trial Rule 54(B). Ramirez now appeals.
Discussion and Decision
Summary Judgment Standard of Review
Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). In reviewing a trial court's ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. Hendricks Co. Bd. of Comm'rs v. Rieth-Riley Const. Co., Inc., 868 N.E.2d 844, 848-49 (Ind.Ct.App.2007). The party appealing the grant of summary judgment has the burden of persuading this court that the trial court's ruling was improper. Id. at 849. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiff's cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiffs claim. Indiana Michigan Power Co. v. Runge, 717 N.E.2d 216, 226 (Ind.Ct.App.1999).
Here, the parties do not dispute the relevant facts. They agree that S.R. was a viable, full-term, yet unborn fetus at the time of her death. They disagree as to whether S.R. was a "child" under the statute. Statutory interpretation presents a pure question of law for which summary judgment is particularly appropriate. Pike Twp. Educ. Found., Inc. v. Rubenstein, 831 N.E.2d 1239, 1241 (Ind.Ct.App.2005). Where the issue presented on appeal is a pure question of law, we review the matter de novo. Id.
Statutory Meaning of "Child"
Ramirez contends that S.R., a full-term and viable 3 fetus, should be considered a "child" pursuant to Indiana Code Section 84-23-2-1, which provides in relevant part:
[3]*3Injury or death of child; action by parent or guardian
See. 1. (a) As used in this section, "child" means an unmarried individual without dependents who is:
(1) less than twenty (20) years of age; or
(2) less than twenty-three (28) years of age and is enrolled in a postsecondary educational institution or a career and technical education school or program that is not a postsecondary educational program.
(b) An action may be maintained under this section against the person whose wrongful act or omission caused the injury or death of a child. The action may be maintained by:
(1) the father and mother jointly, or either of them by naming the other parent as a codefendant to answer as to his or her interest;
(2) in case of divorcee or dissolution of marriage, the person to whom custody of the child was awarded; and
(3) a guardian, for the injury or death of a protected person.
In Bolin, our Supreme Court reviewed a case where the plaintiff had suffered the miscarriage of an eight to ten week old fetus after an automobile accident and had brought a claim for wrongful death under the statute. The trial court granted the defendant's motion for summary judgment, and this Court affirmed the trial court. On transfer, our Supreme Court undertook "to determine the scope of the term 'child' in the Wrongful Death Statute." 764 N.E.2d at 207. Based upon the language of the statute, the Court ultimately concluded that "the legislature intended that only children born alive fall under Indiana's Child Wrongful Death Statute." Id.
Here, Ramirez contends that Bolin should not apply because the facts are distinguishable (S.R. was a full-term fetus as opposed to an eight-to-ten-week-old fetus) and because Bolin was wrongly decided. Although we express great sympathy with Ramirez's cireumstances, we cannot grant the remedy he seeks.
In Horn v. Hendrickson, 824 N.E.2d 690 (Ind.Ct.App.2005), this Court was asked to determine whether Bolin was inapplicable where a "viable" fetus of six months gestation had died as a result of a vehicular accident. After observing that the Bolin Court "arguably" addressed a larger question than the facts required, the Horn Court concluded that the holding of Bolin was nevertheless clear:
Only a child "born alive" fits the definition of "child" under the child wrongful death statute ("the statute"). [764 N.E.2d at 207.] In reaching that conclusion, the court declared a "bright line" test. Despite the salient factual difference here, namely, that Horn's fetus was viable, the Bolin opinion categorically precludes all parents from bringing a wrongful death claim for the death of a viable or non-viable fetus. It is not this court's role to reconsider or declare invalid decisions of our supreme court.
Horn, 824 N.E.2d at 694.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
BAILEY, Judge.
Case Summary
Savannah Linley Ann Nelson Ramirez ("S.R."), by her father, Stephen Ramirez ("Ramirez"), appeals the trial court's grant of partial summary judgment in favor of James A. Wilson ("Wilson") and Suzy-Q Trucking, LLC (collectively, "the Appel-lees") upon a claim under Indiana's child wrongful death statute, Indiana Code Seetion 34-23-2-1 ("the statute"). We affirm.1
Issues
Ramirez raises two issues:
I. Whether the trial court erroncously granted partial summary judgment upon a determination that a full-term fetus is not a "child" under the statute; and
II. Whether the statute, as interpreted by our Supreme Court in Bolin v. Wingert, 764 N.E.2d 201 (Ind. [2]*22002), violates the privileges and immunities clause of the Indiana Constitution.
Facts and Procedural History
On March 21, 2007, Megan Nelson ("Nelson"), who was then nine months pregnant with S.R., was driving a vehicle on State Road 10 in Newton County, Indiana. Wilson, the owner-operator of Suzy-Q Trucking, LLC, was driving a semi tractor in the opposite direction. During a passing maneuver, the vehicle and semi collided head-on. Nelson was killed and S.R. died in utero.
On April 10, 2007, Ramirez filed a complaint under the statute, alleging that he was S.R.'s father and that Wilson's negligence caused S.R.'s death. The Special Administrator of Nelson's estate also pursued a wrongful death claim against the Appellees for the death of Nelson.2 On February 29, 2008, the Appellees filed a motion for partial summary judgment, asserting that the statute is inapplicable because S.R. was not born alive, and thus the Appellees were entitled to judgment as a matter of law.
On April 29, 2008, the trial court heard argument on the motion for partial summary judgment. At the conclusion of the hearing, the trial court indicated that it was bound by the Bolin decision to grant the motion for partial summary judgment. The trial court certified the order pursuant to Indiana Trial Rule 54(B). Ramirez now appeals.
Discussion and Decision
Summary Judgment Standard of Review
Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). In reviewing a trial court's ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. Hendricks Co. Bd. of Comm'rs v. Rieth-Riley Const. Co., Inc., 868 N.E.2d 844, 848-49 (Ind.Ct.App.2007). The party appealing the grant of summary judgment has the burden of persuading this court that the trial court's ruling was improper. Id. at 849. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiff's cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiffs claim. Indiana Michigan Power Co. v. Runge, 717 N.E.2d 216, 226 (Ind.Ct.App.1999).
Here, the parties do not dispute the relevant facts. They agree that S.R. was a viable, full-term, yet unborn fetus at the time of her death. They disagree as to whether S.R. was a "child" under the statute. Statutory interpretation presents a pure question of law for which summary judgment is particularly appropriate. Pike Twp. Educ. Found., Inc. v. Rubenstein, 831 N.E.2d 1239, 1241 (Ind.Ct.App.2005). Where the issue presented on appeal is a pure question of law, we review the matter de novo. Id.
Statutory Meaning of "Child"
Ramirez contends that S.R., a full-term and viable 3 fetus, should be considered a "child" pursuant to Indiana Code Section 84-23-2-1, which provides in relevant part:
[3]*3Injury or death of child; action by parent or guardian
See. 1. (a) As used in this section, "child" means an unmarried individual without dependents who is:
(1) less than twenty (20) years of age; or
(2) less than twenty-three (28) years of age and is enrolled in a postsecondary educational institution or a career and technical education school or program that is not a postsecondary educational program.
(b) An action may be maintained under this section against the person whose wrongful act or omission caused the injury or death of a child. The action may be maintained by:
(1) the father and mother jointly, or either of them by naming the other parent as a codefendant to answer as to his or her interest;
(2) in case of divorcee or dissolution of marriage, the person to whom custody of the child was awarded; and
(3) a guardian, for the injury or death of a protected person.
In Bolin, our Supreme Court reviewed a case where the plaintiff had suffered the miscarriage of an eight to ten week old fetus after an automobile accident and had brought a claim for wrongful death under the statute. The trial court granted the defendant's motion for summary judgment, and this Court affirmed the trial court. On transfer, our Supreme Court undertook "to determine the scope of the term 'child' in the Wrongful Death Statute." 764 N.E.2d at 207. Based upon the language of the statute, the Court ultimately concluded that "the legislature intended that only children born alive fall under Indiana's Child Wrongful Death Statute." Id.
Here, Ramirez contends that Bolin should not apply because the facts are distinguishable (S.R. was a full-term fetus as opposed to an eight-to-ten-week-old fetus) and because Bolin was wrongly decided. Although we express great sympathy with Ramirez's cireumstances, we cannot grant the remedy he seeks.
In Horn v. Hendrickson, 824 N.E.2d 690 (Ind.Ct.App.2005), this Court was asked to determine whether Bolin was inapplicable where a "viable" fetus of six months gestation had died as a result of a vehicular accident. After observing that the Bolin Court "arguably" addressed a larger question than the facts required, the Horn Court concluded that the holding of Bolin was nevertheless clear:
Only a child "born alive" fits the definition of "child" under the child wrongful death statute ("the statute"). [764 N.E.2d at 207.] In reaching that conclusion, the court declared a "bright line" test. Despite the salient factual difference here, namely, that Horn's fetus was viable, the Bolin opinion categorically precludes all parents from bringing a wrongful death claim for the death of a viable or non-viable fetus. It is not this court's role to reconsider or declare invalid decisions of our supreme court.
Horn, 824 N.E.2d at 694. The Horn Court acknowledged that Supreme Court precedent is binding until it is changed either by that court or by legislative enactment, but also observed that "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." Id. at 695.
With these precepts in mind, we will not proceed in direct conflict with the controlling precedent of our Supreme Court, and we will affirm the grant of partial summary judgment to the Appellees. Howev[4]*4er, we urge our Supreme Court to reconsider the appropriate breadth of the Bolin opinion in the compelling circumstances presented here. S.R. had completed the same gestation as a typical live-born child. Had medical intervention, including a prompt Cesarean section, been available at the accident scene, S.R. would expectably have lived independent of her mother's body.
Constitutionality
Ramirez alleges that the statute violates Article 1, Section 23 of the Indiana Constitution, the privileges and immunities clause4 He focuses upon differential treatment afforded to fetuses in civil law as opposed to criminal law and differential treatment afforded to mothers as opposed to fathers of unborn viable children. He does not attempt to develop an argument according to the test of Collins v. Day, 644 N.E.2d 72, 80 (Ind.1994) (wherein our Supreme Court established the two-part test to be applied to claims under Art. I, Seetion 23: First, the disparate treatment accorded by the legislature must be reasonably related to inherent characteristics which distinguish the unequally treated classes. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated).
To the extent that it may be said that Ramirez articulates and supports an equal privileges challenge, this Court has previously rejected such a constitutional claim. See McVey v. Sargent, 855 N.E.2d 324 (Ind.Ct.App.2006) (concluding that Indiana's child wrongful death statute, as interpreted by Bolin, does not violate the privileges and immunities clause of the Indiana Constitution nor does it violate the due process or equal protection clauses of the United States Constitution), trams. denied.
As this Court has observed in Horn, "IjJust as we have no authority to overrule Bolin directly, we cannot disregard supreme court precedent and purport to overrule Bolin indirectly on constitutional grounds." 824 N.E.2d at 703.
Conclusion
Inasmuch as there exist no genuine issues of material fact, and the Appellees are entitled to judgment as a matter of law on the claim under Indiana's child wrongful death statute, the trial court properly granted partial summary judgment.
Affirmed.
BRADFORD, J., concurs.
RILEY, J., dissents with opinion.