INTERESTING CASE ON LOSS OF CONSORTIUM OF CHILD – STATUTE OF LIMITATIONS – Excellent Dissent by Court of Appeals Judge Sara Combs

From LawReader annotations:

Potter v. Boland (Ky. App., 2012) 2011-CA-001336-MR
December 7, 2012

We begin with our standard of review. The standard of review on appeal of a summary judgment is “whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996); CR 56.03. “The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).

KRS 411.135 provides for a parent’s loss of consortium for the death of a minor child. It states:
In a wrongful death action in which the decedent was a minor child, the surviving parent, or parents, may recover for loss of affection and companionship that would have been derived from such child during its minority, in addition to all other elements of the damage usually recoverable in a wrongful death action.

We agree with the Potters’ observation that a loss of consortium claim is often discovered simultaneously with the wrongful death claim and not until after the child’s personal representative is appointed and pertinent records obtained. If more than one year has elapsed, but less than two years from the personal representative’s appointment, the loss of consortium claim is barred.

Thus, an attorney for the parents is in the unenviable position of filing a loss of consortium claim without knowledge of the legitimacy of the underlying wrongful death claim. Moreover, it is questionable whether the loss of consortium action could survive a motion to dismiss for failure to state a cause of action when a wrongful death action has not been filed.

Logic and clarity should not be strangers to the law. However, we have no authority to deviate from the established law. The only limitation period set forth by the General Assembly for loss of consortium is contained in KRS 413.140. KRS 413.180 cannot be extended by judicial fiat. Because this issue was definitively resolved by the Kentucky Supreme Court in Gaylor, we are bound by its holding and the current statutory law.

COMBS, JUDGE, DISSENTING: Respectfully, I dissent. While I wholly concur that this Court must refrain from extending a limitations period “by judicial fiat,” I believe that the language and reasoning of Conner, supra, are broad enough to encompass this particular claim for loss of consortium.
KRS 411.135 explicitly combines a loss of consortium claim with a wrongful death action. In overruling cases to the contrary, Conner construed KRS 413.180 to allow one year for appointment of a personal representative and then essentially allowed him the statutory one-year limitation period to evaluate, to assess, and to decide whether to pursue a lawsuit for wrongful death. Conner provided as follows:
It is reasonable to conclude the General Assembly intended for the personal representative to have the same amount of time to prosecute all claims resulting from injury to the decedent including injuries resulting in death. Id. at 654.
In this case, the loss of consortium claim indisputably arose from the death of the child. Therefore, Conner permits the personal representative to pursue this claim as part and parcel of the claim for wrongful death. Conner’s holding is clearly expansive rather than restrictive and serves the “logic and clarity” that the majority opinion fears are estranged from the law. In fact, a reasonable and literal application of Conner should save this claim for loss of consortium and would avoid the “confusion over varying time limitations” which Conner specifically sought to eliminate.
Therefore, I would vacate and remand on this one issue and permit this claim to be litigated.

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