BAILEY, J.
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 Appellees”) upon a claim under Indiana’s child wrongful death statute, Indiana Code Section 34-23-2-1 (“the statute”). We affirm.
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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. . . .
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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 Statue.” 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 circumstances, 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. However, 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.
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Affirmed.
BRADFORD, J., concurs. RILEY, J., dissents with opinion.
RILEY, J., dissenting.
I respectfully dissent from the majority’s decision to affirm the trial court’s grant of partial summary judgment in favor of the Appellees. In essence, the majority’s opinion refuses to “proceed in direct conflict with controlling supreme court precedent,” while at the same time, it implicitly acknowledges that the result reached in Bolin v. Wingert, 764 N.E.2d 201 (Ind. 2002) is wrong. Slip op. p. 6.
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