Kentucky Loss Of Consortium Law: What Does Change In Law Mean For Active Wrongful Death Cases
Yesterday, the Kentucky Supreme Court, in a unanimous decision, recognized spousal loss of consortium in wrongful death cases. This change allows the spouses of those killed by the carelessness or rule-breaking of others to seek redress for the loss of companionship of their husband or wife. Prior to this ruling, Kentucky was one of only four states that did not recognize spousal loss of consortium in wrongful death cases.
The question Kentucky personal injury attorneys who represent either the victims' families or defendant corporations in wrongful death cases are asking today is, what does this decision mean for current cases (cases where the death occurred prior to this decision).
I have not comprehensively researched this issue, but here are some initial thoughts after discussing this with colleagues who, like me, represent the families in these type of cases.
First, if a lawsuit has not yet been filed, clearly a claim for loss of consortium can be brought. It would be ridiculous for the defendant to argue that they would have been more careful had they known that the victim's spouse could have sued for loss of consortium.
Likewise, if a lawsuit has been filed, but the statue of limitations on the loss of consortium claim has not run, the complaint can be amended to add the spouse as a party and a loss of consortium claim on their behalf.
The real question is, what about active cases in litigation where the statute of limitations has run on the loss of consortium claim (generally only a year under Kentucky law, even though you generally have two years to bring a wrongful death claim on behalf of the estate of the deceased)?
Many of my colleagues on the plaintiffs' side of the bar have been filing loss of spousal consortium claims in wrongful death cases notwithstanding the old law--they knew that the old law's days were numbered. However, was that necessary, and if it wasn't done, is the claim barred?
Whether a new claim asserted in an amended complaint relates back to the date of the original filing is governed by Kentucky Rule of Civil Procedure 15.03.
CR 15.03 RELATION BACK OF AMENDMENTS(1) Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.
(2) An amendment changing the party against whom a claim is asserted relates back if the condition of paragraph (1) is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (a) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (b) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
(3) The delivery or mailing of process to the attorney general of the Commonwealth, or an agency or officer who would have been a proper defendant if named, satisfies the requirement of paragraph (2) with respect to the Commonwealth or any agency or officer thereof to be brought into the action as a defendant.
The operative provision is subsection (1). The loss of consortium claim unquestionably arises out of the same "conduct, transaction, or occurrence" (i.e. the car wreck, medical error, etc.) that gave rise to the wrongful death claim set forth in the original complaint. Therefore, the loss of consortium claim set forth in an amended complaint would relate back to the date of the filing of the original complaint for statute of limitations purposes.
There is persuasive authority from the Kentucky Supreme Court supporting this view. In Perkins v. Read, 616 S.W.2d 495 (Ky. 1981), the trial court dismissed a widow's claim for her own injuries in a car wreck that killed her husband. The original complaint alleged only wrongful death claims. After she amended the complaint to allege her own personal injury claims, the trial court dismissed those claims as being barred by the statute of limitations. The Supreme Court reversed, ruling that her personal injury claims arose out of the same occurrence as her husband's estate's claims and, therefore, related back to the original filing.
[T]he automobile collision was the sole factual situation giving rise to the cause of action in the case at bar. In this respect it represented the “conduct, transaction or occurrence” which formed the basis for the original complaint. This case differs from those in which a plaintiff seeks to amend a complaint in order to include an unrelated cause of action or to name a new party.
Perkins v. Read, 616 S.W.2d 495, 496 (Ky. 1981).
For further reading relating to this long overdue change in Kentucky law, see the following Kentucky Injury Lawyer Blog entries:
Kentucky Supreme Court Extends Loss of Consortium Laws
Will Kentucky ever recognize loss of consortium for a spouse in wrongful death cases?
