Martin v. Ohio County Hospital Corporation and Post-Death Spousal Loss of Consortium Claims in Kentucky
Earlier today, the Supreme Court of Kentucky rendered a unanimous decision in Tina Martin, Administratrix of the Estate of Billie Carol Shreve, Deceased; and Donald Ray Shreve, Individually v. Ohio County Hospital Corporation (No. 2008-SC-000211), holding, for the first time, that KRS 411.145 allows a spouse to claim loss of consortium after the death of his or her spouse.
History of Spousal Consortium in Kentucky
Prior to 1970, Kentucky common law recognized only a husband's right to recover for loss of consortium with his wife in the time period leading up to her death. However, Kentucky's highest court extended this right to wives in Kotsiris v. Ling, 451 S.W.2d 411, 412 (Ky. 1970), stating that "considerations militating in favor of recognition of the wife's cause of action outweigh the considerations on which the doctrine of stare decisis rests," and holding that "a wife has a cause of action for loss of consortium of her husband resulting from an injury to the husband due to the negligent act of another."
A few months later, the Kentucky Legislature enacted KRS 411.145, which provides:
(1) As used in this section "consortium" means the right to the services, assistance, aid, society, companionship and conjugal relationship between husband and wife, or wife and husband.
(2) Either a wife or husband may recover damages against a third person for loss of consortium, resulting from a negligent or wrongful act of such third person.
The language of the statute does not indicate whether a claim for spousal consortium is limited to the loss up until the spouse's death or extends beyond it. Thus, the statute did not clarify whether the legislature intended to codify the common law cause of action of loss of spousal consortium, which ended at death, or if the legislature intended the cause of action to extend beyond death, as do parent-child consortium claims.
Despite multiple attempts to amend KRS 411.145 to allow spouses to bring loss of consortium claims in wrongful death actions, those attempts were never successful. In January 2008, a new version of a prior spousal consortium bill was introduced in the 2008 Regular Session of the General Assembly. The bill sought to amend KRS 411.145 to include actions by the surviving spouse, provided that the consortium claim was brought as part of the wrongful death action and not as a separate lawsuit. House Bill 297 did not move beyond committee, however.
The Supreme Court's Decision in Martin v. Ohio County Hospital Corporation
In the October 1, 2009, opinion written by Justice Noble, the Supreme Court of Kentucky noted that "the issue of whether a spouse may claim loss of consortium after the death of her spouse turns on what the silence of the legislature on that issue in KRS 411.145 means." At common law, spousal consortium claims ended at death. However, with the enactment of KRS 411.145, the legislature made loss of consortium a statutory action belonging specifically to the spouse and not to the estate of the decedent, but remained silent as to whether such a claim is limited to the loss up until the spouse's death or extends beyond it.
The Supreme Court concluded that loss of consortium damages under KRS 411.145 do not cease at death by (1) considering the language of the statute, (2) recognizing that the majority of states allow, via statute or case law, spousal consortium damages to continue after death; and (3) rejecting the Appellee's contention that because by legal definition, marriage is a relationship existing "in law for life," any recovery related to the marriage relationship cannot continue after death.
Turning first to the language of KRS 411.145, the Court noted that the statute allows a husband or wife to recover damages for "services, assistance, aid, society, companionship, and conjugal relationship," which are elements that "describe the personal relationship, mental and physical, between spouses." The Court reasoned that the "pain and deprivation" coming from a loss of those elements does not disappear the day a spouse dies and that those losses are not worthless after death.
In addition, the Court noted that KRS 411.145 is intended to be compensatory, providing that a third person must compensate the spouse for a loss resulting from a "negligent and wrongful act," and "compensation cannot be had if the damages claimed are required to terminate at death." Allowing a loss of consortium claim only if the victim survives (1) created a "class of plaintiffs whose cause of action depended on the vagaries of fate, rather than the orderly operation of law," and (2) created a perverse incentive for tortfeasors "to kill victims instead of leaving them disabled, as only by instantly killing the victim can the tortfeasor be guaranteed to owe no loss of consortium."
The Supreme Court then noted that Kentucky was in the minority regarding spousal consortium. Twenty-six other states have some form of loss of spousal consortium set forth in a statute, and all of those states specifically recognize that those damages continue after death. Fifteen states recognize through case law that loss of consortium damages continue past death, and only seven stop such damages at death.
The Court reasoned that because the legislature decided to enact a statute creating a cause of action for loss of spousal consortium rather than leaving the question to the common law, it must have wished to depart from the common law approach. The legislature deliberately chose not to include the limiting language of "until death," and instead used the broad compensatory language "may recover damages." If the legislature had merely intended to adopt the common law approach, it need not have acted at all. The Court thus declined to provide a missing term by limiting recovery only up to the time of death.
Finally, the Court rejected the Appellee's contention that because the statutory definition of marriage in KRS 402.055 is a relationship existing "in law for life," recovery for loss of spousal consortium cannot continue after death as the legal marriage relationship ends at death. The Court noted that "a loss of consortium claim is grounded on compensation for a third party's wrong-doing which intervenes in the marital relationship so as to deny spousal consortium." The claim makes a third party liable for wrongfully depriving a spouse of the marital relationship that could have continued but for that party's wrongdoing. This loss is "definable and measurable," and a surviving spouse has the right to be compensated for a relationship wrongfully taken away.
The Court thus reversed the Court of Appeals, concluding that the legislature did not intend to devalue the spousal relationship by "putting an arbitrary limit on the duration of what can be profound loss." The Court held that bereaved spouses have the right to have such a loss evaluated by a jury, and KRS 411.145 allows post-death loss of consortium claims.
How this opinion affects Kentucky Businesses and Insurance Companies:
This important opinion greatly increases a business litigant's liability exposure. Kentucky juries will now consider a spouse's loss of love and affection resulting from the death of their spouse.
Clearly this loss is real and will be relevant in every wrongful death case involving a married individual. Similar loss of consortium claims brought in Kentucky by the children of deceased parents often have resulted in jury awards in the seven figures. This new law allowing spousal consortium has turned a million dollar claim into a multi-million dollar claim overnight.
We see two areas of debate coming out of this new law. First, to what extent does this opinion apply retroactively to existing cases and claims? We feel there is a strong argument the new rule does not apply to these existing cases and claims. Second, this opinion heightens the legal relevance of the spousal relationship prior to the incident. Therefore, businesses defending wrongful death cases will now be allowed to take discovery related on this topic.
For more information about this decision, contact Jeremiah Byrne, Catherine Ford or Charles Cassis of Frost Brown Todd's Tort Defense and Insurance Practice Group.