Kentucky Court Expands Spousal Right to Sue for Loss of Consortium
Article provided by Hargadon, Lenihan & Herrington
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On October 1, 2009, Justice Mary C. Noble wrote an eloquent, unanimous opinion for the Supreme Court of Kentucky holding that Kentucky law allows widowed husbands and wives to sue for damages for loss of consortium after their spouses' wrongful deaths. The court's decision to allow damage awards for loss of marital companionship not only during the time between wrongful injury and death while an injured spouse was still alive, but also for the time after death, was applauded by plaintiffs' attorneys and victims' rights advocates.
The political climate in Kentucky was ripe for this development. Surviving spouses of victims of the 2006 crash of Comair Flight 5191 in Lexington, Kentucky, and widows of deceased miners had previously lobbied the state legislature hard, but unsuccessfully, for just this change in the law. The Supreme Court's ruling has the same effect.
Martin v. Ohio County Hospital Corporation
Donald Ray Shreve is a disabled man who depended completely on his wife, Billie Carol Shreve. Following a car accident, Billie Shreve bled to death during transport between emergency hospitals. Donald Shreve filed a negligence suit against the first hospital for loss of consortium, defined in Kentucky statute as "the right to the services, assistance, aid, society, companionship and conjugal relationship" between spouses. The jury awarded him damages, but the trial court only allowed them for his loss during the short time between his wife's accident and her death, consistent with previous Kentucky court holdings. The decision wound its way to the Supreme Court.
According to Justice Noble's opinion, traditional common law only allowed damages for loss of consortium up to the time of death. In 1970, the legislature passed a law that a spouse can sue a third person for damages for loss of consortium when that person acted negligently or wrongfully to cause the harm. The legislature was silent about whether the damages could be awarded for loss of consortium after death. The court had to decide whether the legislative silence meant that the common law rule that limited consortium damages to predeath loss was intended or whether the absence of any limiting language was meant to expand the damages to include loss after death.
Emphasizing common sense, discussing the horrible impact of losing a spouse and looking to other states that allow loss of consortium damages to be measured both before and after death, the court overruled earlier precedent. It held that in Kentucky a surviving spouse can sue for damages for loss of consortium both before and after the death of a husband or wife harmed intentionally or negligently by another person.
Ramifications of Decision
Complex legal questions need to be answered about the effect this decision will have on past and pending consortium lawsuits. Going forward, spouses will be able to bring damage claims in Kentucky for loss of consortium calculated for the time both before and after wrongful death. This will be important in all types of wrongful death cases, including car, truck, boat and motorcycle crashes; job site, construction and mining accidents; defective product injuries; toxic substance exposure; and others. No matter how a beloved husband or wife was wrongfully harmed or killed, the personal loss to the other spouse is likely to be profound and one that is now more fully compensable in Kentucky.
Article provided by Hargadon, Lenihan & Herrington
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