The following article appeared in yesterday's Lexington Herald Leader.
Ending an inequity court should right wrong brought to light by 5191 crash survivors
FRANKFORT - Kentucky statutes seem to say clearly that a surviving spouse may seek damages for loss of companionship (consortium, in legalese) in wrongful death cases. "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," KRS 411.145 says in part.
But Kentucky case law holds just the opposite. Prevailing case law allows a parent to sue for loss of consortium when a child dies because of an accident or negligence. It allows a child to seek damages for that reason when a parent is the victim.
Even a spouse can claim such damages if their mate survives the incident and remains injured. However, that same spouse cannot ask for post-death damages, Kentucky courts have ruled despite the fact that there are no such limitations in the language of KRS 411.145, enacted in 1970.
But the Kentucky Supreme Court now has an opportunity to correct what strikes me as a nonsensical inequity in our state's case law. The court heard oral arguments Wednesday in a case involving the death of an Ohio County woman in which post-death loss of consortium is a prominent issue.
Since justices and judges assume the role of devil's advocate during oral arguments, one should never jump too far toward any conclusion about how a case will be decided.
So I will limit my leap to saying some of the devil's advocacy going on in the courtroom Wednesday made a good argument for overturning Kentucky's case law.
Justice Will T. Scott, for instance, noted the "clear trend" in this country toward allowing post-death claims for loss of consortium. Surviving spouses can seek post-death damages in more than 40 states now.
Kentucky's case law adheres to English common law, which limited spousal claims for loss of companionship to the period of time between the injury and death. But KRS 411.145 contains no such limitation.
That prompted Justice Lisabeth Hughes Abramson to suggest that the state's courts have "grafted a common law restriction" on a statue that has no such restriction.
Justice Wil Schroder noted that an oft-cited 1969 court decision that adhered to the common law restriction on post-death claims may have been the impetus for lawmakers enacting the 1970 law that contained no such restrictions.
Justice Daniel T. Venters followed that same line by suggesting Kentucky courts just haven't paid attention to what the legislature did in 1970.
Venters also posited a scenario that, to me, most clearly demonstrates the utter absurdity of the current inequity in the law.
Under present case law, Venters noted, it would be in the financial interest of a spouse whose partner had been comatose for 20 years to keep that person alive as long as possible so the damages for loss of consortium continue.
To someone who desperately wants the plug pulled quickly if I ever go into a permanent vegetative state, the thought that Kentucky case law might encourage the husband or wife of a vegetative spouse to do otherwise to keep the money flowing is an abomination of reason.
Again, you can't judge a justice by his/her devil's advocate questions.
But the simple fact that the Supreme Court is hearing a case involving loss of consortium gives me hope that some extremely unjust case law may soon be overturned.
If that should happen, it would be at least a small, if belated, consolation for the surviving spouses of the Flight 5191 victims.
They came to Frankfort two years ago, asking lawmakers to tell the state's courts that KRS 411.145 means what it says. They had success in the House, which passed their proposed legislation 93-7. But they were met with insults in the Republican-controlled Senate, where they were accused of having a "lottery mind-set."
Senate Republicans, so often obsessed with marriage when it's about homosexual unions or adoptions by gay or lesbian couples, spat on marriage in 2007 with their insulting treatment of Flight 5191 widows and widowers.
Here's hoping the Kentucky Supreme Court rectifies that wrong with the case it heard Wednesday.