I Omitted To Inform You About A VERY Important Kentucky Supreme Court CORRECT Ruling Concerning "Loss Of Consortium". Sorry. Read More Below.
Read the very well reasoned opinion by Justice Mary Noble.
Below is an excerpt:
But just as the Court did not address whether loss of parental consortium continues after the age of majority in Guiler, the legislature has not addressed specifically in the statute whether loss of consortium damages continue after the death of the spouse in KRS 411.145. This question was not at issue in Guiler, but is the controlling question here. Thus this Court must answer that question, and does so by saying that loss of consortium damages under KRS 411 .145 do not cease at death.
The Court reaches this conclusion by first looking at the language of the statute: "a wife or a husband may recover damages." Those damages, as enumerated in subsection (1), encompass "services, assistance, aid, society, companionship and conjugal relationship . . . ." KRS 411 .145(1) . When this loss results from a "negligent or wrongful act" of a third person, the legislative intent is clear that this person must compensate the spouse for the loss. The general focus of this statute is compensatory in nature.
The courts have been exhorted that "common sense must not be a stranger in the house of the law." Cantrell v. Kentucky Unemployment Ins. Comm'n , 450 S.W.2d 235, 237 (Ky. 1970) . It is apparent that the kinds of damage elements enumerated in the statute are those that describe the personal relationship, mental and physical, between spouses. It is equally apparent that the pain and deprivation coming from loss of such interactions does not magically disappear the day a spouse dies . It defies common sense to put a value on such losses while a spouse is lying incapacitated, but to say the loss is worthless after death. While grief and loss are borne in different ways by different people, it is nonetheless a common part of the human condition that a jury can properly evaluate based on the facts and circumstances of each case.
Further, since the statute is intended to be compensatory, full compensation cannot be had if the damages claimed are required to terminate at death. Indeed, in many cases death is so sudden or follows so quickly after the injury that to cut loss of consortium damages off at death is to essentially deny the cause of action to the spouse altogether . In creating the cause of action, the legislature did not indicate in the statute that it applied only when the victims survived . To read the statute that way would be to create a class of plaintiffs whose cause of action depended on the vagaries of fate, rather than an orderly operation of law. Can it reasonably be said that one whose spouse survives suffers more loss of consortium than one whose spouse dies?
Moreover, allowing a loss of consortium claim only if the victim survives would appear to give perverse incentives to potential tortfeasors . Such a rule could create incentives 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 damages. While this logically follows the common law rule, it is obviously absurd.
Editor's comment: Justice Mary Noble, I couldn't have said it BETTER myself!
Below is an excerpt:
But just as the Court did not address whether loss of parental consortium continues after the age of majority in Guiler, the legislature has not addressed specifically in the statute whether loss of consortium damages continue after the death of the spouse in KRS 411.145. This question was not at issue in Guiler, but is the controlling question here. Thus this Court must answer that question, and does so by saying that loss of consortium damages under KRS 411 .145 do not cease at death.
The Court reaches this conclusion by first looking at the language of the statute: "a wife or a husband may recover damages." Those damages, as enumerated in subsection (1), encompass "services, assistance, aid, society, companionship and conjugal relationship . . . ." KRS 411 .145(1) . When this loss results from a "negligent or wrongful act" of a third person, the legislative intent is clear that this person must compensate the spouse for the loss. The general focus of this statute is compensatory in nature.
The courts have been exhorted that "common sense must not be a stranger in the house of the law." Cantrell v. Kentucky Unemployment Ins. Comm'n , 450 S.W.2d 235, 237 (Ky. 1970) . It is apparent that the kinds of damage elements enumerated in the statute are those that describe the personal relationship, mental and physical, between spouses. It is equally apparent that the pain and deprivation coming from loss of such interactions does not magically disappear the day a spouse dies . It defies common sense to put a value on such losses while a spouse is lying incapacitated, but to say the loss is worthless after death. While grief and loss are borne in different ways by different people, it is nonetheless a common part of the human condition that a jury can properly evaluate based on the facts and circumstances of each case.
Further, since the statute is intended to be compensatory, full compensation cannot be had if the damages claimed are required to terminate at death. Indeed, in many cases death is so sudden or follows so quickly after the injury that to cut loss of consortium damages off at death is to essentially deny the cause of action to the spouse altogether . In creating the cause of action, the legislature did not indicate in the statute that it applied only when the victims survived . To read the statute that way would be to create a class of plaintiffs whose cause of action depended on the vagaries of fate, rather than an orderly operation of law. Can it reasonably be said that one whose spouse survives suffers more loss of consortium than one whose spouse dies?
Moreover, allowing a loss of consortium claim only if the victim survives would appear to give perverse incentives to potential tortfeasors . Such a rule could create incentives 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 damages. While this logically follows the common law rule, it is obviously absurd.
Editor's comment: Justice Mary Noble, I couldn't have said it BETTER myself!
Labels: Justice, Kentucky Constitution
posted by KYJurisDoctor at 3:33 PM
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