MEMORANDUM OPINION

JOHN HEYBURN, Chief Judge, District

Plaintiffs filed suit against Defendants CCS of Conway, L.L.C., Conway Courier Service, Inc., and Gerald R. Dickson and Shaffer Trucking Co., Crete Carrier Corp., and James D. Witcher, claiming negligence, pain and suffering, wrongful hiring and retention of drivers, loss of consortium, respondeat superior on the part of the CCS companies and Shaffer and Crete, and punitive damages for gross negligence in connection with the death of Douglas Presley in a multiple vehicle accident in March 2002. Defendants removed to federal court. Now they move for partial summary judgment on Plaintiffs' claims for loss of spousal consortium, pain and suffering, negligent hiring and retention, and punitive damages. Defendant CCS of Conway also claims that it must be dismissed as an improper party. Plaintiffs have also moved to allow an extended time for recent expert disclosure. The Court sustains Defendants' motions in part and denies them in part.

I.

On March 12, 2002, Gerald Dickson was driving a commercial semi-tractor trailer owned by CCS of Conway for Conway Courier Service north on I-71 in Oldham County at approximately five o'clock in the morning when he unexpectedly crossed the median of the highway and headed into southbound traffic on I-71. Dickson's truck clipped the rear of another truck heading south in the passing lane, which caused Dickson's truck to jackknife and block oncoming traffic in the right-hand lane. Presley was heading south in his pick-up truck when he hit head on into Dickson's truck. The airbag in Presley's vehicle deployed. Seconds later, another semi-tractor trailer heading south and driven by James Witcher for Shaffer Trucking hit the driver's side of Presley's vehicle, crushing him between both the Dickson truck and the Witcher truck. Presley died at the scene from a head and skull injury sustained during the accident. At the time Dickson's truck crossed the median, he was traveling approximately seven miles above the 65 MPH speed limit. Witcher was traveling just under the speed limit when he collided with Presley's truck. At the time of the accident, it was drizzling, and the pavement was wet.

II.

Summary judgment is proper if the evidence submitted shows 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." Fed.R.Civ.P. 56(c). In applying Rule 56(c), a court views the evidence in a light most favorable to the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A court properly enters summary judgment where there is not sufficient evidence in support of the non-movant's case to find that "a reasonable jury could return a verdict for the nonmoving party." Id. at 248.

III.

Defendants challenge Plaintiffs' claim for loss of spousal consortium on the basis that a loss of consortium claim is extinguished upon the death of the injured spouse. Plaintiffs argue that loss of spousal consortium after death is permitted under the Kentucky Supreme Court's decision in Giuliani v. Guiler.

Kentucky case law has been clear that a surviving spouse cannot claim loss of consortium after the death of the other spouse. Brooks v. Burkeen, 549 S.W.2d 91, 92 (Ky. 1977) ("[Plaintiff's] claim [for loss of consortium] fails because it is well settled law that her recovery would be limited to damages which she sustained before her husband's death."); see also Clark v. Hauck Mfg. Co., 910 S.W.2d 247, 252 (Ky. 1995). In Giuliani, the Kentucky Supreme Court recognized for the first time the right of minor children to claim loss of parental consortium following the death of a parent. 951 S.W.2d 318, 323 (Ky. 1997). The court stated that public policy goals now recognized the importance of compensating children for the loss of parental love and nurturing when the loss was caused by another person's wrongdoing. Id. at 320. The court concluded that loss of parental consortium was "a reciprocal of the claim of the parents for loss of a child's consortium," which Kentucky already recognized by statute, and that "there [was] no legal distinction" between the two claims. Id. at 321.

The Kentucky Supreme Court has limited loss of spousal consortium to injuries before death on the theory that extending spousal consortium claims beyond death "would result in a double recovery for the surviving spouse beyond that which the wrongful death statute affords." Clark, 910 S.W.2d at 252. The court, however, dismissed such arguments as unconvincing in Giuliani, reasoning that wrongful death and consortium claims were separate and distinct because wrongful death actions compensated for the economic loss of the parent while loss of parental consortium claims were "based on the loss of love and affection." 951 S.W.2d at 322-23. Loss of parental consortium is similarly based on the idea that a child has a right to compensation for the loss of parental love, security, care, and nurturing. Id. at 319-20. Thus, Plaintiffs argue that the Supreme Court's distinction between wrongful death and loss of consortium claims as to loss of a parent should apply equally to spouses.

The Court is left to predict whether the Kentucky Supreme Court would now permit spouses to recover for loss of consortium after death. Dinsmore Instrument Co. v. Bombardier, Inc., 199 F.3d 318, 320 (6th Cir. 1999); Smith v. Bob Smith Chevrolet, Inc., 275 F. Supp. 2d 808, 821-22 (W.D. Ky. 2003). The Court finds little reason to believe that it would do so. The Kentucky Supreme Court's prior decisions concerning claims for loss of spousal consortium clearly state that these claims end at death. Brooks, 549 S.W.2d at 92; see also Clark, 910 S.W.2d at 252. In Giuliani, it specifically addressed the rights of minor children to claim loss of parental consortium and gave no indication that the analysis was to change prior decisions concerning spousal consortium.

There are also some plausible distinctions to be drawn between allowing children to claim loss of parental consortium beyond death while disallowing spouses from doing the same. For instance, spouses make a vow to stay together until death, so it would be natural for loss of consortium to end once the union is ended by death of a spouse. By contrast, the bond between parent and child is of a different nature, and the loss of a parent really commences at death. The Kentucky Supreme Court discussed none of these arguments in Giuliani. For all these reasons, the supreme court would not likely change its past holdings about spousal consortium.

As a matter of law, Plaintiffs are therefore not permitted to claim loss of spousal consortium following the death of Douglas Presley, and this claim is therefore dismissed.

IV.

V.

Next, Plaintiffs claim that they are entitled to punitive damages because the conduct of drivers Gerald Dickson and James Witcher constituted gross negligence. In Kentucky, gross negligence is defined as a "wanton or reckless disregard for the safety of other persons" such that the offending conduct is so outrageous that malice could be implied from the facts of the situation. Phelps v. Louisville Water Co., 103 S.W.3d 46, 52 (Ky. 2003). In this case, Plaintiffs allege that Dickson was driving over the speed limit, that he did not take a rest period as required under the Federal Motor Carrier Safety Regulations, and that he failed to operate his vehicle safely by allowing it to cross over the median into oncoming traffic. Plaintiffs allege that Witcher was driving too fast for the weather and road conditions, that he was using cruise control inappropriately under wet road conditions, and that he was following Douglas Presley too closely. Even assuming all of these facts are true, the Court finds it highly unlikely that a jury will find that such behavior constitutes a "wanton or reckless disregard" for the safety of others or is so outrageous as to imply malice on the part of the drivers. Nevertheless, the Court declines to dismiss the punitive damages claim now because testimony relevant to gross negligence, and thus relevant to punitive damages, will be heard on the central negligence question. At that time, the Court will be in a better position to rule on a motion for directed verdict or allow a jury whether the drivers' conduct was sufficiently outrageous as to be grossly negligent.

Even if Plaintiffs offer sufficient proof to warrant punitive damages, they will be unable to recover punitive damages against either driver's employer, Conway Courier Service or Shaffer Trucking Co. and Crete Carrier Corp. Under Kentucky law, punitive damages cannot "be assessed against a principal or employer for the act of an agent or employee unless such principal or employer authorized or ratified or should have anticipated the conduct in question." KRS 411.184(3). The Kentucky Supreme Court has acknowledged that "Kentucky is the only state with a statute that so broadly limits vicarious liability for punitive damages." Berrier v. Bizer, 57 S.W.3d 271, 283 (Ky. 2001).

This Court has found three Kentucky Supreme Court cases that applied the statute. In these cases, the court authorized punitive damages only when the employer was aware that the employee had previously engaged in similar unacceptable behavior or when the employer condoned the wrongful action taken by the employee. The Kentucky Supreme Court's conclusions in these three cases appear to be consistent with the language in the statute, which does not allow the actions of an agent to be imputed to the principal unless the principal actually authorizes the activity. In Kentucky Farm Bureau Mutual Insurance Co. v. Troxell, the court approved a jury instruction permitting the award of punitive damages against the insurance company because it was aware that the claims adjuster had previously used unacceptable methods for handling claims and knew of a pattern of unacceptable behavior practiced by the agent. 959 S.W.2d 82, 85-86 (Ky. 1997). In Kroger Co. v. Willgruber, the court approved the trial court's instructions on punitive damages. The trial court denied Kroger's request for an instruction specifically disallowing punitive damages against the company for the actions of its disability carrier. 920 S.W.2d 61, 68 (Ky. 1996). The supreme court concluded that the evidence "left no doubt" that Kroger had authorized the carrier to conduct surveillance as part of a company effort to deny the employee disability benefits because, even after the carrier had determined the employee was entitled to benefits, a senior personnel officer at Kroger persuaded the carrier to do the surveillance and gave the carrier the employee's description and photograph. Id. at 67-68. By contrast, in Berrier v. Bizer, the court approved the trial court's decision not to allow a punitive damages instruction because the business owner and employer was not involved in day-to-day and personnel-related decisions, which were left to the vice-president for operations, and had no idea that the plaintiff-employee had been discharged until the lawsuit was filed. 57 S.W.3d at 284. He was also unaware of any other instance in which an employee claimed wrongful discharge after filing a work complaint or because of pregnancy. Id.

Here, even assuming that the drivers were not operating their trucks safely, Plaintiffs have not introduced any evidence that shows either employer condoned or authorized such unsafe driving. Shaffer Trucking's records on Witcher indicate that, each time he was cited for a moving traffic violation, the company investigated the incident and took the appropriate disciplinary measures. Unlike Shaffer, Conway Courier Service and CCS of Conway apparently did not have policies in place regarding safety and driver training or disciplinary procedures for drivers who violated traffic laws. While lack of company policies might show negligence on the part of the companies to educate their drivers about road safety and fulfill their regulatory obligations, it does not show that the companies authorized unsafe driving or ratified any violations of traffic laws by their drivers. In addition, Plaintiffs have offered no evidence that either employer should have anticipated the accident. Neither driver had a poor driving record or a history of getting into automobile accidents such that either employer would have been aware that allowing Dickson or Witcher to continue operating trucks would have put them and others at risk of further harm. The Court is aware that Witcher was convicted of running a red light and issued a few speeding tickets during the ten years he was employed with Shaffer before the accident in March 2002. Witcher's past behavior over a period of ten years, however, does not show that his employer could reasonably have expected the Presley accident to result. Speeding tickets show that Witcher was cited for driving above the posted speed limit; however, Witcher was driving just under the speed limit when he struck Presley's vehicle.

Since Plaintiffs have not shown that either Conway Courier Service or Shaffer Trucking and Crete Carrier Corp. ratified or should have anticipated their drivers' conduct under KRS 411.184(3), Plaintiffs are precluded from recovering punitive damages against either employer.

VI.

Next, Plaintiffs claim the drivers' respective employers negligently hired and retained Gerald Dickson and James Witcher. The Kentucky Court of Appeals recognized the tort of negligent hiring and retention in Oakley v. Flor-Shin, Inc., 964 S.W.2d 438 (Ky.Ct.App. 1998). In Kentucky, "an employer can be held liable when its failure to exercise ordinary care in hiring or retaining an employee creates a foreseeable risk of harm to a third person." Id. at 442. Courts evaluate whether the employer knew, or reasonably should have known, that (1) the employee in question was unfit for the job for which he or she was employed, and (2) the employee's "placement or retention in that job created an unreasonable risk of harm" to a third party. Id.

Here, Plaintiffs allege that CCS of Conway and Conway Courier Service do not have any written policies in place concerning driver training and safety and did not offer the proper safety training and orientation program to educate their drivers in their duties and responsibilities under the Federal Motor Carrier Safety Regulations. In addition, the owner and safety officer of both companies, Shane Dickson, was not aware of the Federal Motor Carrier Safety Regulations and did not perform the requisite background investigation on Gerald Dickson before allowing him to drive. In support of these allegations, Plaintiffs have submitted a report prepared by the firm Robson Lapina that evaluated the actions taken by the CCS companies to comply with the Federal Motor Carrier Safety Regulations. None of this evidence, however, is relevant to the question of how Dickson was unfit to be a truck driver. Plaintiffs must submit proof that Dickson's employer knew or should have known that Dickson was unfit in some relevant way for the job. See Interim Personnel of Cent. Va., Inc. v. Messer, 559 S.E.2d 704, 707 (Va. 2002) ("Mere proof of the failure to investigate a potential employee's background is not sufficient to establish an employer's liability for negligent hiring."); Morris v. JTM Materials, Inc., 78 S.W.3d 28, 50-51 (Tex.Ct.App. 2002) (company did not obtain driving record to confirm information on driver's employment application which would have shown that truck driver, who was intoxicated at the time accident in case occurred, was convicted twice of driving while intoxicated, convicted once of illegal drug possession, was involved in a non-injury car accident, and cited five times in eight years for driving without liability insurance). Even though Conway Courier Service might have wrongfully neglected to perform the appropriate background checks on Dickson before hiring him, the Court has no information as to why that is relevant. Plaintiffs have submitted no evidence, for instance, that Dickson had a poor previous employment record as a truck driver or that he had any previous accidents on his driving record, any of which might suggest that he was a poor choice for a truck driver position. Since Plaintiffs have submitted no relevant proof that a jury could evaluate, the Court dismisses the claim of negligent hiring and retention against CCS of Conway and Conway Courier Service.

As to James Witcher, Plaintiffs allege that Witcher had previously been arrested and fined for driving under the influence ("DUI"), arrested for public drunkenness, had been convicted of running a red light while driving a semi-tractor trailer, and had several speeding tickets. The traffic citations for running a red light and speeding occurred while Witcher was on the job for Shaffer Trucking. This evidence is relevant to whether Witcher was unfit to be a truck driver for Shaffer Trucking. Defendants rebutted this evidence by stating that the DUI and public drunkenness convictions happened in another state more than twelve years before the accident with Douglas Presley's vehicle. Defendants noted that Witcher had not taken an alcoholic beverage since November 1990, approximately two years before he began working for Shaffer Trucking. Defendants also noted that Witcher's citation for running a red light occurred more than seven years before the accident. They acknowledged that Witcher received speeding tickets in 1995, 1997, and 2001. The safety compliance officer for Shaffer Trucking, however, reviewed all of the infractions and assessed the necessary disciplinary points for the traffic violations. Witcher had also been properly licensed to drive a commercial tractor-trailer for approximately fifteen years when the accident with Presley occurred. Defendants argue that none of these infractions made Witcher an unfit driver or created a foreseeable risk that Witcher would harm a third person.

First, when Witcher was hired, the only negatives on his driving record, at least according to the evidence submitted to the Court, were an arrest and a conviction for driving under the influence and an arrest for public drunkenness. Witcher, however, completely stopped drinking alcohol in November 1990, about two years before he began working for Shaffer Trucking. At the time Shaffer Trucking hired him, he was no longer drinking any alcohol; therefore, his previous alcohol-related arrests would have had no bearing on whether he was a good choice for a truck driver. Furthermore, the particular unfitness of an employee for the job must render the injury foreseeable to an ordinary, reasonable person. E.g., Interim Personnel of Cent. Va., Inc., 559 S.E.2d at 708; Van Horne v. Muller, 705 N.E.2d 898, 312 (Ill. 1998); Morris, 78 S.W.3d at 49-50; Evan F. v. Hughson United Methodist Church, 10 Cal. Rptr. 2d 748, 754 (Cal.Ct.App. 1992). Witcher's previous alcohol-related offenses could have generally made him a risk on the roads and therefore unfit to be a truck driver. Shaffer Trucking knew or should have known about these offenses. The question here is whether these offenses created the particular risk present in this case. The answer is no because Witcher did not strike Presley's truck while driving under the influence of alcohol. Thus, Shaffer Trucking cannot be held liable for negligently hiring him in 1992.

Second, Witcher's conviction for running a red light and several speeding tickets between 1992 and 2002 when he was working for Shaffer are likewise not sufficient to show that Witcher was unfit to remain a truck driver for Shaffer. His traffic violations did not render the injuries to Presley foreseeable. E.g., Interim Personnel of Cent. Va., Inc., 559 S.E.2d at 708; Van Horne, 705 N.E.2d at 312; Morris, 78 S.W.3d at 49-50; Evan F., 10 Cal. Rptr. 2d at 754. Since Shaffer Trucking knew about these infractions, the important question is whether these violations created the particular risk that Witcher would be in a vehicle accident like this one. The answer is no because (1) Witcher did not strike Presley's truck because he ran a red light, and (2) Witcher was traveling just under the speed limit at the time. The Court recognizes Plaintiffs' allegation that Witcher was going too fast for the road conditions, but none of Witcher's prior moving violations concerned reckless driving or unsafe driving in bad weather. Furthermore, Plaintiffs only cite to a handful of minor traffic violations over a period of approximately seven years during which Witcher would have logged thousands of miles on the road. These violations do not amount to warnings that Witcher was an unsafe driver who put the lives of others at unreasonable risk as long as he remained a driver for Shaffer Trucking. Thus, Shaffer Trucking cannot be held liable for negligently retaining him. The Court therefore dismisses Plaintiffs' claim for negligent hiring and retention against Shaffer Trucking and Crete Carrier Corp.

VII.

If CCS of Conway cannot be held liable as the lessor of Dickson's truck, then a second question arises: whether CCS of Conway is the alter ego of Conway Courier Service and can thus be held liable if a court pierces the corporate veil. In Kentucky, a corporation is the alter ego of another (1) if "there is such unity of ownership and interest that [the] separateness [between the two companies] has ceased"; and (2) "the facts are such that an adherence to the normal attributes . . . of separate corporate existence would sanction a fraud or promote injustice." White v. Winchester Land Dev. Corp., 584 S.W.2d 56, 61-62 (Ky.Ct.App. 1979); see also Lewis LP Gas, Inc. v. Lambert, 113 S.W.3d 171, 176 (Ky. 2003) (quoting White v. Winchester Land Dev. Corp.). Generally, a court will consider the following factors when deciding whether to pierce the corporate veil: (1) undercapitalization; (2) failure to observe corporate formalities; (3) nonpayment or overpayment of dividends; (4) "a siphoning off of funds" by the major shareholders; and (5) personal guarantees of corporate liabilities by the majority shareholders. White, 584 S.W.2d at 62; see also United States v. WRW Corp., 986 F.2d 138, 143 (6th Cir. 1993) (citing White v. Winchester Land Dev. Corp.).

In this case, Plaintiffs allege only that CCS of Conway and Conway Courier Service are owned by the same people, share the same offices and the same employees, and share "the same everything" according to deposition testimony by the owner, Shane Dickson. Similarity of ownership is insufficient evidence by itself to conclude that CCS of Conway is the alter ego of Conway Courier Service. Poyner v. Lear Siegler, Inc., 542 F.2d 955, 958 (6th Cir. 1976) (applying Kentucky law). There is no evidence suggesting that the owners formed CCS of Conway to perpetrate a fraud. Furthermore, Plaintiffs submit no evidence that assets of the two companies were commingled, that the owners "siphoned off" CCS of Conway assets for personal use, or that any corporate formalities, such as bylaws, shareholder meetings, and the like, were ignored. Without any evidence to support the allegation that CCS of Conway is the alter ego of Conway Courier Service, the Court cannot pierce the corporate veil and hold CCS of Conway liable. CCS of Conway is therefore dismissed as an improper party to this lawsuit.

VIII.

On March 19, 2004, Plaintiffs moved to allow disclosure of expert witnesses beyond the revised deadline. The Court denies Plaintiffs' motion.

The original deadline for disclosure of expert witnesses was November 30, 2003. Through a series of events, Plaintiffs were allowed an additional thirty days beyond the date that Defendant Shaffer Trucking responded to their interrogatories. Shaffer Trucking responded on January 13, 2004. Plaintiffs disclosed their experts on February 16, 2004.

The Court believes that it is unfair to allow additional experts beyond the time set. Plaintiffs had the opportunity to disclose Dr. Edward P. Berla as an additional expert witness. In addition, Dr. Berla's proposed testimony addresses the psychological impact of Douglas Presley's death on his two young children. Yet Dr. Berla did not interview either Byran or Matthew Presley during his meeting with Ms. Presley. Furthermore, Plaintiffs had ample time before they filed their March motion to have Dr. Berla or some other psychologist interview Byran and Matthew to determine the psychological impact of their father's death. Indeed, they had at least two and a half months to have Dr. Berla interview the Presley family — from the date of the Court's order on December 1, 2003 extending Plaintiffs' deadline to their revised deadline for disclosing experts in mid-February 2004.

Plaintiffs had plenty of time to locate and disclose Dr. Berla as an additional expert, and they chose to wait until after the February 2004 deadline to take any action. The Court therefore denies Plaintiffs' motion.

The Court will enter an order consistent with this Memorandum Opinion.

ORDER

IT IS HEREBY ORDERED that Defendants' motions are SUSTAINED as to all Defendants for Plaintiffs' claims for loss of spousal consortium and negligent hiring and retention. These claims are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Defendants' motions to dismiss Plaintiffs' claims for pain and suffering and punitive damages are DENIED, except as to Conway Courier Service or Shaffer Trucking Co. and Crete Carrier Corp. Those claims for punitive damages are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Defendant CCS of Conway is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Plaintiffs' motion for an extension of time to disclose an additional expert witness is DENIED.