Wrongful Death

• Kentucky's Wrongful Death Statute - KRS 411.130 - authorizes a recovery when:
  • the 'negligence' or 'wrongful act' of a person 
  • causes the death of another.
• Medical Personnel Included Under Wrongful Death Statute.
  Therefore, a physician, hospital, nurse, chiropractor or any other health care provider whose negligence causes the death of any individual could be held liable for that death.
• Issues Relating to a Wrongful Death In Malpractice Case Include:
  • Statutes of limitations
  • Proper plaintiff
  • Damages
• Statute of Limitations
  The bottom line from the following statutes and cases is that the you have up to two years from the date of death to appoint a personal representative and to commence a cause of action, but no more than one year from the date of the appointment of the personal representative.
• Proper Plaintiff
  Wrongful death action shall be prosecuted by the personal representative of the deceased.  KRS 411.130.
• Damages.
  • With regard to damages, there is no double recovery.  The wrongful death and the personal injury claims are joined into one action.  KRS 411.133.
  • Wrongful Death Claim is an action to recover for damages caused by the death of an individual.  "The measure of damages in an action for wrongful death is the amount of the loss to the estate of deceased because of the destruction of his power to earn money." Miller's Adm'x v. Picard, Ky., 191 S.W.2d 202, 203 (1945). 
    • The loss is the estate and not the loss to the surviving beneficiaries.  Empire Metal Corp. v. Wohlwender, Ky., 445 S.W.2d 685 (1969). 
    • The value of this loss is based on the  deceased's probable life expectancy (see 'Table' Section in KRS) and the deceased's earning capacity.   Southern Railway Co. V. Evans' Adm'r, Ky., 63 S.W. 445 (1901).
    • Affected by deceased's age, state of health, ability to work and/or maintain employment, occupation at time of death, amount of earnings, amount of savings.  See, Cunliffe's Ex'x v. Johnson, Ky., 132 S.W.2d 47 (1939).
    • Remember it is not the actual job or existence of employment at the time of death but rather the power to labor and earn money.
    • Deceased child's estate entitled to recovery for loss of power to earn money.  Turfway Park Racing Assn. v. Griffin, Ky., 834 S.W.2d 667 (1992).
    • Funeral expenses allowed.  KRS 411.130;  Square Deal Cartage Co. v. Smith's Adm'r, Ky., 210 S.W.2d 340 (1948).
    • Punitive damages allowed.  KRS.411.184   Definitions -- Punitive damages -- Proof of punitive damages.; Louisville and Nashville R.R. Co. v. Kelly's Adm'x, Ky., 38 S.W. 852 (1897); Hanson v. American National Bank & Trust Co., Ky., 844 S.W.2d 408 (1992).
    • No recovery for mental suffering of beneficiary (except as otherwise recoverable in loss of consortium). Louisville & Nashville R.R. Co. v. Creighton, Ky., 50 S.W.227 (1899).
  • Survival Actions are claims brought to revive actions which the deceased had prior to his or her death.  There was no common law survival of claims so that the personal injury claim died with the decedent.  KRS 411.140 provides for the survival of claims and KRS 411.133 provides for the joinder of the personal injury claim which resulted in the death with the wrongful death action.  The personal injury claims that the decedent would have had prior to death include: 
    • loss of wages or earnings 
    • medical expenses, and 
    • pain and suffering. NKC Hospitals, Inc. v. Anthony, Ky. App.,849 S.W.2d 564, 569 (1993).
• Parents Loss of Consortium Claim For the Death of Minor Child
  Parent's claim for loss of affection and companionship of minor during his or her minority is in addition to the claims of the estate/personal representative.  KRS 411.135.
• Spouses Loss of Consortium Claim. KRS 411.145   Damages for loss of consortium.
• Child's Loss of Parental Consortium.  Guilani v. Guiler, Ky., 951 S.W.2d.318 (1997).
• Statutes
  • Links to Legislative Research Commission's Site for Statutes
    • CHAPTER 411 RIGHTS OF ACTION AND SURVIVAL OF ACTIONS
      • 411.130   Action for wrongful death -- Personal representative to prosecute -- Distribution of amount recovered.
      • 411.133   Joinder of wrongful death and personal injury actions.
      • 411.135   Damages in action for wrongful death of minor.
      • 411.140   What action shall survive.
      • 411.145   Damages for loss of consortium.
    • CHAPTER 413 LIMITATION OF ACTIONS
      • 413.180   Action by or against personal representative under KRS 413.090 to 413.160.

• Cases:
  • Farmers Bank & Trust Co. of Bardstown v. Rice, Ky. 674 S.W.2d 510 (1984).
    • The statute of limitations for wrongful death actions runs from the death of the decedent, even though there was no viable action for personal injury or medical negligence or malpractice at the time of death.
    • The wrongful death action begins where the personal injury action ends, making it "not a double recovery for a single wrong but a single recovery for a double wrong." 
    • Any damages for which decedent might have brought action within that time are also barred, including loss of wages or earnings to that date, medical expenses, both past and future, and pain and suffering, both past and future. The administrator may recover, however, any damages resulting from the death, including but not necessarily limited to, funeral expenses, and destruction of earning power by reason of the death less, however, any impairment of earning power which existed one year after the date the personal injury claim would have been barred.
  • Connor v. George W. Whitesides Co., Ky., 834 S.W.2d 652 (1992).
    • Connor held that  KRS 413.180 applied to wrongful death suits to save an action filed 13 months after death when the appointment of a representative was accomplished on the same date suit was filed. 

    • "We have determined that  Gaylor states the correct rule. The purpose of  KRS 413.180 is to allow time for the appointment of a personal representative and then to give that personal representative time to evaluate claims and determine whether to pursue those claims. We believe wrongful death claims must come within the purview of the statute because to rule otherwise could continue existing confusion over varying time limitations. Personal injury and wrongful death claims may be prosecuted by the personal representative in one action as was done in this case.  KRS 411.133. 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.
      
      * * * *
      
      Mrs. Conner died on August 7, 1985. This is the date when the limitation period of  KRS 413.140(1) began.  McCollum v. Sisters of Charity of Nazareth Health Corp., Ky., 799 S.W.2d 15 (1990);  Farmer's Bank & Trust Co. v. Rice, Ky., 674 S.W.2d 510 (1984). Arguably, Mr. Conner was appointed executor on September 25, 1985, and definitely he was appointed executor on September 25, 1986. The correct date depends on whether a Nunc Pro Tunc Order was permissible in the circumstance of this case. We need not decide this question.  KRS 413.180(2) provides that if the personal representative is not appointed within a year after death but is appointed after that time, the one year anniversary of death is considered the date of appointment, and the personal representative has one year from the one year anniversary of death to commence a cause of action. The net effect of this statute in this case is to provide two years from the date of death to appoint a personal representative and commence a cause of action for wrongful death."
      
      

Disclaimer

          We are not attempting to practice law, give advice or represent ourselves as anything more than a resource portal with many unique features. Our design is copyrighted. We have no claim of any affiliation with any linked website nor any liability for anything they may say or do. We, and our contributing authors, offer no warranties of any type, to anyone, about anything express or implied.  What you see is what you get, we cannot afford to be your insurer and most assuredly are not your lawyer and do not render you any legal advice whatsoever.  No attorney client relationship is established by this site, and there is absolutely no confidentiality of any information or communication herein.  No emails received will be responded to pertaining to legal questions or advice.

          By going further into this site, you accept this complete waiver of all warranties and acknowledge reading our Legal Disclaimer.  

©  2001-2004 LouisvilleLaw, LouisvilleLaw.com & Kentucky Law Net, LLC
  
"The Kentucky Lawyer" is a registered Service Mark of Kentucky Law Net LLC. 

 LouisvilleLaw, LouisvilleLaw.com, Louisville LawWire, eLegal Summaries & LouisvilleLawyers  are service marks and the intellectual property of Kentucky Law Net LLC. 2001-2004

 To Suggest a Link or Report broken Links, please contact our Webmaster

 
Number of Hits Since June 1, 2001