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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. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  2. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

  3. Lets talk about this without forgetting that Lawyers, too, have FREEDOM OF SPEECH AND ASSOCIATION

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  5. They ruled there is no absolute right to keep a license, whether it be for a lifetime or a short period of time. So with that being said, this state taught me at the age of 15 how to obtain that license. I am actually doing something that I was taught to do, I'm not breaking the law breaking the rules and according to the Interstate Compact the National Interstate Compact...driving while suspended is a minor offense. So, do with that what you will..Indiana sucks when it comes to the driving laws, they really and truly need to reevaluate their priorities and honestly put the good of the community first... I mean, what's more important the pedophile drug dealer or wasting time and money to keep us off the streets?

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