Simmerman et al v. Ace Bayou Corp. et al
Filing
180
MEMORANDUM OPINION AND ORDER: It is ordered that dfts' 113 Motion to Dismiss the plas' loss of consortium claims is GRANTED. Signed by Judge Danny C. Reeves on 2/5/2016. (SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
ANDREW SIMMERMAN, et al.,
Plaintiffs,
V.
ACE BAYOU CORP., et al.,
Defendants.
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Civil Action No. 5: 14-382-DCR
MEMORANDUM OPINION
AND ORDER
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This matter is pending for consideration of the defendants’ motion to dismiss the loss
of consortium claims brought by Plaintiffs Andrew Simmerman and Terry Mills. [Record
No. 113] Because the consortium claims are barred by the applicable statute of limitations
and not subject to any tolling provisions, the defendants’ motion will be granted.
I.
Plaintiffs Andrew Simmerman and Terri Mills are the parents of MKS, a minor child
who died on September 12, 2012, after becoming enclosed in a beanbag chair. [Record No.
1-1] On September 8, 2014, Simmerman was appointed administrator of his daughter’s
estate by order of the Fayette District Court. Id. at 2. The next day, September 9, 2014, the
plaintiffs brought a wrongful death action against the defendants in Fayette Circuit Court
based on the beanbag’s allegedly defective design and subsequent distribution. Id. Three of
the defendants then removed the case to this Court based on diversity jurisdiction. [Record
No. 1] On November 30, 2015, the defendants filed this motion, seeking dismissal of the
plaintiffs’ loss of consortium claims as time-barred.
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II.
In Kentucky, a parent’s right to recover damages for loss of a minor child’s
consortium is established by statute. K.R.S. § 411.135. This statutory section provides:
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.
Id.
Under K.R.S. § 413.140(1)(a), “[a]n action for an injury to the person of the plaintiff,
or of her husband, his wife, child, ward, apprentice, or servant,” must be commenced within
one year after the cause of action accrues. The Supreme Court of Kentucky has held that
section 413.140(1)’s one-year limitation period applies to parental loss of consortium claims
under K.R.S. § 411.135 as well as wrongful death claims. See Ky. Baptist Hosp., Inc. v.
Gaylor, 756 S.W.2d 467, 469 (Ky. 1988).
III.
Because the plaintiffs filed this action nearly two years after MKS’s death, the
defendants argue that their consortium claims are barred by the one-year limitations period.
[Record No. 113]
However, the plaintiffs contend that K.R.S.
§ 413.180 should be
interpreted to extend the one-year limitations period to two years in this case. [Record No.
135] Alternatively, they ask the Court to certify the limitations question to the Supreme
Court of Kentucky. Id. They further argue that the discovery rule tolled the limitations
period until August 22, 2014, the day that the beanbag’s manufacturer issued a voluntary
recall of the product in issue. Id.
Kentucky Revised Statute § 413.180 provides:
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(1) If a person entitled to bring any action mentioned in KRS 413.090 to
413.160 dies before the expiration of the time limited for its commencement
and the cause of action survives, the action may be brought by his personal
representative after the expiration of that time, if commenced within one (1)
year after the qualification of the representative.
(2) If a person dies before the time at which the right to bring any action
mentioned in KRS 413.090 to 413.160 would have accrued to him if he had
continued alive, and there is an interval of more than one (1) year between his
death and the qualification of his personal representative, that representative,
for purposes of this chapter, shall be deemed to have qualified on the last day
of the one-year period.
K.R.S. § 413.180.
In Conner v. George W. Whitesides Co., 834 S.W.2d 652, 653 (Ky. 1992), the
Supreme Court of Kentucky held that K.R.S. § 413.180 applies to wrongful death claims. In
effect, the decision allows a personal representative of a decedent’s estate to bring a
wrongful death claim as late as two years after the wrongful death. Id. at 655. The Conner
court recognized that K.R.S. § 411.130 (the statute that establishes wrongful death as a cause
of action) does not fall within the statutes mentioned in § 413.180. Id. at 653. Nevertheless,
it reasoned that § 413.140 (the statute that sets the limitations period for wrongful death
claims) does fall within the specified range. Id. at 654. The court further explained that “[i]t
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.
The plaintiffs argue that the same reasoning applies to parental loss of consortium
claims. [Record No. 135] Simmerman was appointed administrator of his daughter’s estate
over one year after her death. Therefore, if K.R.S. § 413.180 did apply to the loss of
consortium claims, the one-year statute of limitations would begin to run on the one-year
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anniversary of MKS’ death, giving the plaintiffs until September 12, 2014 to file their claim.
Id. at 655. As discussed above, the plaintiffs filed suit on September 8, 2014, four days prior
to the two-year anniversary of MKS’ death.
The plaintiffs correctly observe that no published decision in Kentucky has
conclusively determined whether Conner’s reasoning applies to parental loss of consortium
claims.
However, they admit that Potter v. Boland, 2011-CA-001336-MR, 2012 WL
6061730 (Ky. Ct. App. Dec. 7, 2012), an unpublished decision of the Court of Appeals of
Kentucky, addresses this issue directly.1
In Potter, the plaintiffs argued that Conner’s reasoning should extend to their parental
loss of consortium claims. Id. at 6. The court disagreed, reasoning that loss of consortium
claims and wrongful death claims are independent causes of action. Id. at 7. It explained
that a parent could still bring a loss of consortium claim regardless of whether the child’s
personal representative filed a wrongful death claim. Id. The court acknowledged that its
decision would
[put] an attorney for the parents [] 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.
Id. at 8.
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The plaintiffs have attached the opinion as an exhibit to their response. [Record No. 1431] The opinion’s page numbers are taken from that document as the opinion has not been
published.
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The plaintiffs argue that the Court of Appeals of Kentucky’s decision in Potter is
flawed because: (i) the Potter court relied on Martin v. Ohio Cnty. Hosp. Corp., 295 S.W.3d
104 (Ky. 2009), a spousal consortium case, (ii) Potter purports to uphold Gaylor, 756
S.W.2d 467, a case prior to Conner, and (iii) Gaylor did not distinguish between wrongful
death claims and parental loss of consortium claims. [Record No. 135, pp. 9-10] However,
the plaintiff’s critiques of the Potter opinion are without merit.
First, the Potter court recognized that Martin was a spousal consortium case and not a
parental consortium case. [Record No. 143-1, p. 7] The Potter court cites Martin for the
proposition that wrongful death actions are separate and independent from consortium
claims, an idea that is well-established in Kentucky jurisprudence. In fact, the Supreme
Court of Kentucky has specifically held that parental consortium claims are “independent
and separate” from wrongful death claims. Giuliani v. Guiler, 951 S.W.2d 318, 322 (Ky.
1997).
Thus, the Potter court’s reliance on Martin does not undermine the court’s
conclusions.
In Gaylor, 756 S.W.2d at 468, the plaintiff brought a personal injury claim on her
stillborn daughter’s behalf and a parental loss of consortium claim under K.R.S. § 411.135
on her own behalf. Id. at 469. The Supreme Court of Kentucky held that the consortium
claim was barred by the one-year statute of limitations because the plaintiff brought the case
twenty months after the still birth. Id. In a separate section of the opinion, the court
questions the viability of a personal injury claim brought on behalf of a fetus not born alive.
Id. However, the court concluded that it was unnecessary to reach that issue because it “has
consistently held that ‘ . . . unless a personal representative shall qualify within one year from
the injury, the action is barred.’” Id. at 469. The Conner Court explicitly stated that this
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holding from Gaylor is “the correct rule.” Conner, 834 S.W.2d at 654. Conner did not
address consortium and, therefore, did not disturb that part of the Gaylor opinion.
According to the plaintiff, Gaylor indicates that a parental consortium claim should
be treated the same as a wrongful death claim.
characterization ignores Gaylor’s structure.
[Record No. 135, p. 6]
But that
Gaylor only discusses the personal
representative issue in the context of the personal injury claim, not the consortium claim.
Gaylor’s separate treatment of the two issues reinforces the Potter court’s conclusion that
Conner should not be extended to consortium claims.
The plaintiffs argue in the alternative that this Court should certify this issue to the
Supreme Court of Kentucky because it has not issued a published decision resolving this
question. [Record No. 135] Federal courts generally do not “trouble our sister state courts
every time an arguably unsettled question of state law comes across our desks.” City of
Columbus, Ohio v. Hotels.com, L.P., 693 F.3d 642, 654 (6th Cir. 2012) (internal quotation
marks and citation omitted). Instead, federal courts will generally attempt to predict what the
state’s highest court would decide if faced with the same issue by examining “all available
data, including the decisional law of the state’s lower courts.” Carolina Casualty Ins. Co. v.
Panther II Transp. Inc., 402 F. App’x 62, 66 (6th Cir. 2010) (quoting Stanek v. Greco, 323
F.3d 476, 478 (6th Cir. 2003)). The United States Court of Appeals for the Sixth Circuit has
held that “all available data” includes unpublished as well as published decisions. Lukas v.
McPeak, 730 F.3d 635, 638 (6th Cir. 2013). In Lukas, the Sixth Circuit concluded that a
federal court should not disregard an intermediate appellate state court’s opinion, “unless it is
convinced by other persuasive data that the highest court of the state would decide
otherwise.” Id. (quoting West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236 (1940)). Further,
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“state appellate court precedent is to be considered particularly persuasive where the [state’s
highest court] refused to review the decision.” Lukas, 730 F.3d at 638.
The Court of Appeals of Kentucky’s decision in Potter forecloses the need to certify
the issue to the Supreme Court of Kentucky. The plaintiffs have not shown that Kentucky’s
highest court would likely decide the issue differently if such were presented to it for
resolution.
In fact, the Supreme Court of Kentucky declined to review Potter when
discretionary review was requested. [Record No. 143-2] Based on the data available from
Kentucky’s lower courts, this Court finds that the one-year statute of limitation applies to the
plaintiffs’ consortium claims, and K.R.S. § 413.180 does not apply to extend that period.
Finally, the plaintiffs argue that their consortium claims should be tolled by the
discovery rule. [Record No. 135, pp. 14-15] They contend that they did not know and could
not have known that a product defect caused their daughter’s death until a recall was issued
for the product on August 22, 2014. Id. at 14. In Kentucky, the discovery rule tolls the
statute of limitations until the date the injury is discovered or should have been discovered in
the exercise of ordinary care and diligence. Wiseman v. Alliant Hosps., Inc., 37 S.W.3d 709,
712 (Ky. 2000). “The knowledge necessary to trigger the statute is two-pronged; one must
know: (1) he has been wronged; and, (2) by whom the wrong has been committed.” Id.
Notably, the knowledge requirement is satisfied when the plaintiff discovers that a wrong has
been committed, not when he discovers that he has a cause of action against the person who
committed the wrong. Vannoy v. Milum, 171 S.W.3d 745, 749 (Ky. Ct. App. 2005).
In Potter, the court declined to apply the discovery rule where the plaintiffs argued
that they did not discover their injury until a medical expert reviewed their daughter’s
medical records. [Record No. 143-1, p. 9] Relying on Vannoy, the court concluded that the
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plaintiffs’ claim accrued on the date of their daughter’s death because at that point, “[i]t was
painfully obvious . . . that they had been harmed.” Id. The same reasoning applies here. As
the defendants observe in their reply, the plaintiffs undoubtedly knew that their daughter died
by suffocating inside a beanbag in a bedroom in their home. [Record No. 142] An autopsy
was performed the next day and the medical examiner’s October 12, 2012, report concluded
that the cause of death was asphyxia/suffocation due to enclosure inside of a vinyl beanbag
chair. [Record No. 142-2]
Because the plaintiffs knew or should have known that they had been injured on the
date of their daughter’s death, the discovery rule does not be applied to toll the one-year
limitations period.
IV.
For the foregoing reasons, it is hereby
ORDERED that the defendants’ motion to dismiss the plaintiffs’ loss of consortium
claims [Record No. 113] is GRANTED.
This 5th day of February, 2016.
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