Opinion
Civil Action No. 5:98CV-68-R
February 4, 1999.
MEMORANDUM OPINION
Plaintiffs Luanne P. Balk, Executrix of the Estate of Maureen A. Spaight, and Jennifer Spaight, daughter of the Deceased, filed this action for wrongful death and loss of parental consortium under Kentucky law. Defendants Burnett Brothers Trucking and Alan Kaminski have filed a motion for summary judgment (doc. #69). For the following reasons, Defendants' motion is DENIED.
FACTS
Maureen A. Spaight ("Deceased") died as a result of a vehicular accident between her vehicle and a truck owned by Defendant Burnett Brothers Trucking and driven by its employee, Defendant Alan Kaminski. Kaminski had delivered a shipment of livestock for his employer and was returning to work. While traveling northbound on a four lane divided highway in McCracken County, Kentucky, Kaminski drove into the rear of the Deceased's vehicle, also traveling northbound, and over the top of it. Plaintiffs allege that Kaminski was driving at an excessive speed, was under the influence of marijuana, had not had enough sleep, and was either asleep or completely inattentive to the road when he struck the Deceased's vehicle.
The Deceased's mother, Luanne Balk, petitioned the McCracken Circuit Court to be appointed executrix of Maureen Spaight's estate. Balk, a resident of Arizona, is elderly and in poor health. A qualified officer in Arizona administered the oath of executrix to her in Arizona. The oath was acceptable to the McCracken District Court, which appointed her executrix and entered an order on August 26, 1997 stating that Balk "took the oath prescribed by law."
Balk, in her capacity as Executrix, filed suit for wrongful death in McCracken Circuit Court. Plaintiffs asserted negligence, gross negligence, and negligent hiring and entrustment theories. The deceased's daughter, Jennifer Spaight, is a co-plaintiff and sued for loss of consortium. Jennifer was a minor (about 17 years old) when her mother died. Defendants, residents of Illinois, removed the action to this court pursuant to 28 U.S.C. § 1332.
Defendants filed a motion for summary judgment, asserting that they are entitled to judgment as a matter of law because Balk is not a properly qualified executrix and Jennifer cannot receive damages for loss of consortium because her mother died almost instantly.
STANDARD
Summary Judgment is available under Fed.R.Civ.P. 56(c) if the moving party can establish that the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The moving party must carry the initial burden by "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 342, 88 L.Ed.2d 28 (1986). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
If the moving party meets its burden, the burden then shifts to the nonmoving party to present "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The test is "whether the party bearing the burden of proof has presented a jury question as to each element in the case." Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). Plaintiffs must present evidence on which the trier of fact could find for the plaintiff. Anderson v. Liberty Lobby, 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
DISCUSSION
In regard to the wrongful death claim, Defendants challenge the appointment of Balk as executrix. They claim that K.R.S. 395.020 requires Balk to physically appear in the McCracken District Court and take her oath. The relevant portion of the statute reads:
The person named in a will as executor shall not act as executor to any extent until the will or an authenticated copy of the will is admitted to record, and he has executed bond and taken oath in the court in which the record is made.
K.R.S. 395.020. Since Balk took her notarized oath in Arizona, Defendants argue that Balk is not a qualified executrix and that they are entitled to summary judgment. Defendants rely on the statute and the case of Everley v. Wright, 872 S.W.2d 95 (Ky. 1993), to support their position. Everley is distinguishable because in that case the plaintiff in a wrongful death action undisputedly had not been appointed administrator of the deceased's estate and was not appointed within the applicable two-year statute of limitations for wrongful death. In contrast, the McCracken District Court entered an actual order, signed by the judge, appointing Balk as the Executrix of the Deceased's estate and recognizing that she took the oath. A typewritten oath signed by Balk and notarized in Arizona is in the record.
The McCracken District Court has exclusive jurisdiction to appoint an executrix. The district judge found that Plaintiff satisfied the statutory requirements. "Federal courts do not sit in review of state court decisions on matters of state law." Rives v. The Franklin Life Ins. Co., 792 F.2d 1324, 1328 (5th Cir. 1986). Full faith and credit principles do not allow Defendants to collaterally attack the appointment in these circumstances. See Atchison, Topeka Santa Fe Railway Co. v. Preston, 257 F.2d 933, 935 (10th Cir. 1958) (holding that the right of the deceased's personal representative to maintain action not subject to challenge on collateral ground of failure to adhere to state oath requirements).
Defendants also challenge the ability of Jennifer Spaight to receive any loss of consortium damages. The Supreme Court of Kentucky recently recognized a child's ability to recover for loss of parental consortium. Giuliani v. Guiler, 951 S.W.2d 318 (Ky. 1997). This remedy is available for "those children who lose the love and affection of their parents due to the negligence of another." Id. at 318. The claim is "independent and separate from a wrongful death action." Id. at 322.
The court stated that the claim is a reciprocal of the parent's claim for loss of a child's consortium which was recognized in K.R.S. 411.135, which 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.
Defendants argue that at common law, the focus for loss of consortium damages rests upon the time between the injury and the death or recovery of the person who is the basis for the claim, as reflected in the spousal loss of consortium claims. See Everley v. Wright, 872 S.W.2d 95, 96 (1994); Loew v. Allen, 419 S.W.2d 734 (Ky. 1967). Defendants claim that this measure of damages applies to Jennifer's Spaight's loss of parental consortium claim. Since Maureen Spaight died almost instantly with the collision, her daughter is not entitled to any loss of consortium damages.
Contrary to Defendants' argument, the Kentucky Supreme Court was merely emphasizing that it was not usurping the role of the legislature, when it stated "[a] claim for loss of parental consortium arises from a recognition of the common law as distinguished from statutory law." Giuliani at 323. The court wanted to reject the "ancient fallacy" that children do not have an identity as individuals and as members of the family separate from their parents, and to conform the law with specific public policy of the legislature of recognizing the importance of families. "Common law grows and develops and must be adapted to meet the recognized importance of the family, and the necessity for protection by the law of the right of a child to a parent's love, care and protection so as to provide for the complete development of that child." Giuliani at 319. Clearly, Kentucky law has changed to allow Jennifer Spaight to recover damages for the loss of love and affection from her mother while she was a minor child.
An appropriate order shall issue.
ORDER
Defendants having filed a motion for summary judgment, and the Court being sufficiently advised,
IT IS ORDERED:
Defendants' motion for summary judgment (doc #69) is DENIED.