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Opinion invites high court to reconsider decision

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The Indiana Court of Appeals invited the Indiana Supreme Court to revisit its ruling that held only children born alive fall under Indiana's Child Wrongful Death Statute. In a decision today, the majority of the appellate court panel felt bound by the high court's previous ruling.

At issue in Savannah Linley Ann Nelson Ramirez, An Individual Under the Child Wrongful Death Act, By Her Father, Stephan Ramirez v. James A. Wilson and Suzy-Q Trucking, LLC, No. 56A04-0806-CV-356, is whether a 9-month-old fetus should be considered a child under the statute. The mother of Savannah died in a car accident as a result of a car accident with James Wilson. The baby died in utero.

Ramirez filed a complaint under the statute alleging Wilson's negligence caused his daughter's death. The trial court granted Wilson's motion for partial summary judgment because the statute isn't applicable because Savannah wasn't born alive. The trial court ruled it was bound to grant the partial summary judgment by the Supreme Court's decision in Bolin v. Wingert, 764 N.E.2d 201 (Ind. 2002).

Ramirez argues on appeal that a full-term and viable fetus should be considered a child under the Child Wrongful Death Statute. But in Bolin, the high court ruled a 10-week-old fetus didn't constitute a child under the statute and that the legislature only intended for babies born alive to be covered.

Even though the circumstances between Bolin and the instance case are different, Judges L. Mark Bailey and Cale Bradford affirmed the grant of partial summary judgment, citing the precedent set by the Supreme Court in Bolin. However, the majority urged the high court to reconsider the scope of their earlier ruling based on the circumstances of this case that perhaps Savannah could have lived had there been a prompt Cesarean section performed, wrote Judge Bailey.

But Judge Patricia Riley dissented, writing that exceptions can be made to stare decisis, such as when the reasoning of a precedent is patently flawed.

"In my opinion, Bolin represents a fallacy and no longer has any contemporary relevance. Judicial honesty dictates corrective action," she wrote.

Citing two cases decided by the Supreme Court on the issue of unborn children's rights, Judge Riley wrote Indiana courts were focused on protecting the rights of the unborn until the Bolin decision came in 2002. The judge also cited Horn v. Hendrickson, 824 N.E.2d 290 (Ind. Ct. App. 2005), in which the appellate court affirmed a mother couldn't file suit under the statute following the death of her six-month-old fetus after a car accident. That ruling also invited the high court to reconsider the Bolin opinion.

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  1. How nice, on the day of my car accident on the way to work at the Indiana Supreme Court. Unlike the others, I did not steal any money or do ANYTHING unethical whatsoever. I am suing the Indiana Supreme Court and appealed the failure of the district court in SDIN to protect me. I am suing the federal judge because she failed to protect me and her abandonment of jurisdiction leaves her open to lawsuits because she stripped herself of immunity. I am a candidate for Indiana Supreme Court justice, and they imposed just enough sanction so that I am made ineligible. I am asking the 7th Circuit to remove all of them and appoint me as the new Chief Justice of Indiana. That's what they get for dishonoring my sacrifice and and violating the ADA in about 50 different ways.

  2. Can anyone please help this mother and child? We can all discuss the mother's rights, child's rights when this court only considered the father's rights. It is actually scarey to think a man like this even being a father period with custody of this child. I don't believe any of his other children would have anything good to say about him being their father! How many people are afraid to say anything or try to help because they are afraid of Carl. He's a bully and that his how he gets his way. Please someone help this mother and child. There has to be someone that has the heart and the means to help this family.

  3. I enrolled America's 1st tax-free Health Savings Account (HSA) so you can trust me. I bet 1/3 of my clients were lawyers because they love tax-free deposits, growth and withdrawals or total tax freedom. Most of the time (always) these clients are uninformed about insurance law. Employer-based health insurance is simple if you read the policy. It says, Employers (lawyers) and employees who are working 30-hours-per-week are ELIGIBLE for insurance. Then I show the lawyer the TERMINATION clause which states: When you are no longer ELIGIBLE! Then I ask a closing question (sales term) to the lawyer which is, "If you have a stroke or cancer and become too sick to work can you keep your health insurance?" If the lawyer had dependent children they needed a "Dependent Conversion Privilege" in case their child got sick or hurt which the lawyers never had. Lawyers are pretty easy sales. Save premium, eliminate taxes and build wealth!

  4. Ok, so cheap laughs made about the Christian Right. hardiharhar ... All kidding aside, it is Mohammad's followers who you should be seeking divine protection from. Allahu Akbar But progressives are in denial about that, even as Europe crumbles.

  5. Father's rights? What about a mothers rights? A child's rights? Taking a child from the custody of the mother for political reasons! A miscarriage of justice! What about the welfare of the child? Has anyone considered parent alienation, the father can't erase the mother from the child's life. This child loves the mother and the home in Wisconsin, friends, school and family. It is apparent the father hates his ex-wife more than he loves his child! I hope there will be a Guardian Ad Litem, who will spend time with and get to know the child, BEFORE being brainwashed by the father. This is not just a child! A little person with rights and real needs, a stable home and a parent that cares enough to let this child at least finish the school year, where she is happy and comfortable! Where is the justice?

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