In Kentucky, a wrongful death action is governed by KRS 411.130. The KRS says that whenever the death of a person results from an injury inflicted by the negligence or wrongful act of another, damages may be recovered for the death from the person who caused it, or whose agent or servant caused it. KRS 411.130 further states that, “if the act was willful or the negligence gross, punitive damages may be recovered." The lawsuit must be brought by the personal representative of the deceased person.
Appointment of Personal Representative (Opening an Estate)
Before the wrongful death lawsuit is filed someone must appear before the probate court, which is the District Court, in Kentucky, and qualify as the personal representative.
Therefore an estate must be opened in the District Court where the deceased person lived and resided. A personal representative is the Executor, if the deceased person had a Will or an Administrator, if the deceased had no Will.
The personal representative not only prosecutes the wrongful death action, but also must go through the process of administering the estate of the deceased person. The probate process can be a complicated matter in and of itself, so it is always advisable to hire an attorney.
Prosecuting the Action
After the personal representative is appointed, the wrongful death action can then be filed and pursued like any other negligence action. Wrongful death action can be complicated and drawn out because the amount of damages is often large and insurance companies will make the personal representative jump through every hoop imaginable.
Issues regarding damages in wrongful death action are sometimes more complicated as well. For instance, in Kentucky damages are only allowed for conscious pain and suffering. Therefore, there will often be a huge fight over whether the death of instantaneous or if the deceased person was alive for a period of time before the death occurred.
The damages recoverable in the wrongful death action include: conscious pain and suffering of the deceased, loss wages, if incurred prior to the death, loss of the deceased earning capacity.
Distribution of the Damages in a Wrongful Death Action
“The amount of damages recovered, less funeral expenses and the cost of administration of the estate and costs of recovery including attorney fees, not included in the recovery from the defendant, shall be for the benefit of and go to the kindred or heirs of the deceased." KRS 411.130 states that the damages must be distributed as follows;
“(a) If the deceased leaves a widow or husband, and no children or their descendants, then the whole to the widow or husband.
(b) If the deceased leaves a widow and children or a husband and children, then one-half (1/2) to the widow or husband and the other one-half (1/2) to the children of the deceased.
(c) If the deceased leaves a child or children, but no widow or husband, then the whole to the child or children.
(d) If the deceased leaves no widow, husband or child, then the recovery shall pass to the mother and father of the deceased, one (1) moiety each, if both are living; if the mother is dead and the father is living, the whole thereof shall pass to the father; and if the father is dead and the mother living, the whole thereof shall go to the mother. In the event the deceased was an adopted person, "mother" and "father" shall mean the adoptive parents of the deceased.
(e) If the deceased leaves no widow, husband or child, and if both father and mother are dead, then the whole of the recovery shall become a part of the personal estate of the deceased, and after the payment of his debts the remainder, if any, shall pass to his kindred more remote than those above named, according to the law of descent and distribution."
Independent Causes of Action that should be pursued with the Wrongful Death Action
Loss of consortium claims of the spouse and children should be pursued as independent causes of action.
In fact, spousal loss of consortium, was not recoverable in Kentucky until October of 2009, in the case of Martin v. Ohio County Hospital Corporation. Prior to this ruling Kentucky was one of only four other states that refused to allow a spousal loss of consortium claim in wrongful death cases.
The child's loss of parental consortium is an independent common law claim. Guilani v. Guiler, Ky., 951 S.W.2d.318 (1997).
If the deceased is a child the parents will have a loss of consortium claim for the death of minor child. Also, under KRS 411.135, a parent's claim for loss of affection and companionship of minor during his or her minority, should be pursued.
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