TINA MARTIN, ADMINISTRATRIX OF THE ESTATE OF BILLIE CAROL SHREVE, ET AL. vs. OHIO COUNTY HOSPITAL CORPORATION 2008-SC-000211-DG (October 1, 2009)
For almost 40 years, Kentucky courts have interpreted KRS 411.145 – Kentucky’s Loss of Consortium statute – to allow recovery only for the time period a spouse is incapacitated due to another’s negligence, but terminating that claim upon the death of the injured spouse. However, on October 1, 2009, the Kentucky Supreme Court unanimously recognized that damages for loss of consortium extend beyond the death of a spouse injured by the tortious acts of a third-party. Tina Martin, Administratrix of the Estate of Billie Carol Shreve, et al. vs. Ohio County Hospital Corporation, 2008-SC-000211-DG (October 1, 2009).
In departing from the common law, the court observed: “[i]t is apparent that the kinds of damage elements enumerated in [KRS 411.145] 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.” Prior to this ruling, Kentucky was among only eight (8) states that terminated consortium claims upon the injured spouse’s death.
The impact this new ruling will have on claim valuations remains to be seen. Without question, initial demands for spousal consortium claims in Kentucky wrongful death and serious injury actions will go up. But has the ultimate settlement value of such claims really been affected by the Supreme Court’s decision? Without a meaningful sample size of jury verdicts which cannot be expected for at least a year, we must speculate
somewhat. However, one thing is clear: different and more intimate facts about the spousal relationship are now more relevant than under the previous interpretation and have the potential to impact case values significantly.
For example, a jury will be entitled to know whether the surviving spouse has remarried or has begun to replace the emotional void left by the loss of their spouse with the companionship of another person. Also, pre-death marital issues, including separations, counseling, mental or physical abuse and even ailments that impacted the spousal relationship are certainly relevant to a jury’s assessment of the surviving spouse’s loss of “services, assistance, aid, society, companionship and conjugal relationship...” KRS 411.145(1).
We believe at least one macro-economic factor may also come into play. Plaintiffs’ counsel will continue to argue that the value of a decedent’s destruction of power to labor and earn money is measured by simply multiplying earning capacity at death, times the decedent’s work-life expectancy. However, one has to wonder if juries will take into account the fact that the surviving spouse will now be receiving damages for the emotional aspect of losing their spouse for the remainder of their “hypothetical” life and ask themselves: How much more is required to “fairly and reasonably compensate” the spouse through the estate’s destruction of power to earn claim?
All things considered, we believe that juries will evaluate wrongful death and spousal consortium claims similarly to how they always have. By way of illustration, the average wrongful death and consortium verdict in Ohio, a state that has long-recognized that a spouse’s consortium interest extends beyond death, is $250,000 more than analogous Kentucky verdicts ($1,800,000 versus $1,550,000 for 2000-2009). This data does not suggest that a radical change is necessary in evaluating the exposure presented in claims involving the loss of spousal consortium in Kentucky, even though the Plaintiffs’ bar’s demands are likely to increase substantially on the heels on the Supreme Court’s decision.
We welcome the opportunity to discuss this or any other Kentucky law issues you encounter in your field.