(CN) - The father of an unborn baby who died in a car crash can't sue the driver for wrongful death, because the 9-month-old fetus doesn't qualify as a "child" under Indiana's child wrongful death statute, the Indiana Court of Appeals ruled.
Megan Nelson, then nine months pregnant, collided head-on with a semi-truck driven by James Wilson, owner of Suzy-Q Trucking.
The baby's alleged father, Stephen Ramirez, sued Wilson and his company, claiming their negligence caused the unborn infant's death. He argued that a "full-term and viable fetus" should be considered a "child" under Indiana's child wrongful death statute.
The appeals court said it was bound by the state Supreme Court's ruling in Bolin v. Wingert, which held that "the Legislature intended that only children born alive fall under Indiana's Child Wrongful Death Statute."
Ramirez said Bolin should not apply, because his baby was a full-term fetus while the fetus in the Bolin case was an 8- to 10-week-old fetus, miscarried after a car accident. He added that the Bolin case was wrongly decided.
The appeals court deferred to the high court, but urged the justices to "reconsider the appropriate breadth of the Bolin opinion in the compelling circumstances presented here."
Judge Bailey noted that the unborn child had been in the womb as long as a typical live-born baby, and would have survived had prompt medical intervention required a Cesarean.
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