Department of Education v. Blevins, 707 S.W.2d 782

Department of Education v. Blevins

707 S.W.2d 782

Ky.

1986

Check Treatment

*1 DEPARTMENT OF EDUCATION Claims,

Board of Commonwealth

Kentucky, Appellants,

Fred and Letha BLEVINS

Blevins, Appellees.

Supreme Kentucky.

April Bale, Colvin,

Stanley Gary J. Frank S. Gen., Frankfort, Chuppe, Atty. Asst. appellants. Somerset, appellees. Hay,

Richard LEIBSON, Justice. Blevins, year eleven old

Eva Jewell daughter appellants Fred and Letha Blevins, accident. was killed in a school bus in the separate actions were filed Three against the De- Board of Claims The first claim partment of Education. wrongful death action filed was a seeking decedent’s the destruction damages for the estate for power money to earn of the decedent’s *2 for expenses. law, funeral provided KRS 411.130. the by action recover separate filed, addition two claims were damages prose- in such shall all cases be one on behalf of the decedent’s father and by cuted the mother, one on behalf of her seeking dam- person. the deceased The General As- ages separately for affection and sembly may provide recovery how the companionship they that would have de- go belong; shall and to whom and until rived minority. from their child her provision made, is such the same shall KRS 411.135. part form of the estate of the The Board of Claims dismissed both person.” deceased claims filed parents, holding the that 411.130, Under KRS the General Assem- “such an can only brought the bly wrongful has reenacted death act as personal representative of the deceased.” protected by Kentucky Constitution. Wayne Court affirmed dismissal of Circuit personal repre- The statute authorizes the these claims. The of Appeals re- sentative of prosecute the deceased to versed, holding that under KRS 411.135 the wrongful provides death action and for dis- right separate had a to recover for tribution of in the amount recovered injury their own suffered as a result of parents may an action. The become benefi- their accepted child’s death. We discretion- recovery, only ciaries of such ary “[i]f and review affirm the decision of the widow, deceased leaves no husband or Appeals. Court of 411.130(2)(d). child.” KRS If the deceased The issue is pro- whether KRS 411.135 widow, child, husband, leaves no par- vides with a recover ents, then recovery “the shall become a loss of affection and companionship that part estate of the de- would been have from derived the deceased 411.130(2)(e). ceased.” KRS This lan- child during minority separate which is and points guage up the distinct nature of the apart representative’s recovery in such actions. cause of wrongful action for provid- death ed in KRS 411.130. recoverable The Court of Appeals decided wrongful death action clearly have been General Assembly, creating KRS defined and incep limited almost from its 411.135, separate created a new and statu tion. The are such sum as will tory remedy for the loss sur suffered fairly reasonably and compensate the dece viving parents rather merely than enhanc dent’s estate destruction of the ing recoverable under KRS earning power, decedent’s and do in 411.130, death statute. We clude affliction which has overcome the agree. family reason death. These are two and distinct Louisville and N.R. Co. v. Eakins’ causes of action. The first is the Adm’r., 465, (1898). 103 Ky. 45 S.W. 529 wrongful death, initiated See also Louisville and N.R. v. Sim Co. preexisting statute preserved by Sec- Adm’r., Ky. rall’s 104 S.W. 1011 tion 241 of the 1890 Constitution. (1907). Baker, Sturgeon See hand, 411.135, On the other S.W.2d 202 Sec. 241 as creating recovery statute for a follows: surviving parent “for loss of affection “Recovery for wrongful death.—When- companionship that would have been de- ever the of a result during minority,” rived from such child relatively origin. is act, then, recent was case, It enact- every damages may part ed Bill 22 Senate in 1968. It is be recovered for such corporations persons styled, from Section Two of three causing so Until relating same. otherwise “AN ACT death.” “in to all noteworthy It is that Section addition One usually re- provided damage same bill elements of the that henceforth “the other action,” personal representative coverable decedent who interpretation. injured by was reenforces this reason of the tortious acts another, inju- and later dies from such during minority, child is killed Where a ries, recover in the same action for [shall] recovery in a the beneficiaries of the *3 both the death of the decedent per- brought by the personal injuries for the from which representative of the estate sonal on behalf prior the decedent suffered to death.” may entirely 411.130 differ- under KRS (Emphasis Thus the cause of ac- parents. example, ent from the For it is personal prior tion injuries to death was age for a day not unusual in this expressly included in with the claim for child, home, living killed dependent at to be death entrusted to the and be survived children of her own. representative by KRS 411.130. parents’ may such cases the loss be the greater, being must grandparents who contrast, By it is Section Two directs that both the loss of their own child and bear recover,” surviving parent “may the who grandchildren. of burden their Never- recovery provided and the is for elements theless, are not beneficiaries damages them, peculiar which are representative’s wrongful viz., companion- the “loss of affection and death action. ship that would have been derived from during minority.” such child its squarely point There is no case in inter preting appellees KRS 411.135. But the Further, provides Section Two that cited a law note and a text book have both recovery is “in other ele- addition to all specifying sepa that the statute creates a damage usually in ments recoverable parents in rate cause of action for the their death action.” The right compan own for loss of affection and provided for are for loss thus suffered ionship. Savage, Humpty Dumpty in the parents. They directly are different Street, (Apr.1975) Bench Bar& in kind and character to the loss suffered Eades, Kentucky Wrongful Death Ac person killed. The latter flows tions, (1981). Secs. 4-8 and 7-6 through per- to the decedent’s estate. The Act, The Board of 44.070 to Claims KRS representative, suing sonal on behalf of the 44.160, partial is a waiver of Common- estate, could have no interest in the loss sovereign immunity. University wealth’s suffered and should have no Guynn, Ky., 372 S.W.2d Kentucky v. right duty represent them in its or recov- must The extent of the waiver ery. language be derived from the of the stat- reason, apparent statutory There is no or ute. otherwise, parents’ to make the cause 44.070(1) in that this The Act states KRS dependent upon the action taken compensate persons waiver is “to for dam- personal representative on behalf of ages property or sustained to either KRS 411.135 starts with the the estate. proximate result of on the as a phrase, prefatory “[i]n Commonwealth, any of its de- minor action which the decedent was a partments agencies, any or or of its offi- says “parent, But the statutes child.” cers, agents employes....” or Thus, may recover.” taken parents, or prefatory 44.070(5) the word “action” provides context Act that In KRS wrong- that in a case where phrase single recovery money means “a claim for the child, the single money has occurred to a minor shall not ex- ful death or a award of ($50,000), surviving parents permitted are exclu- fifty ceed thousand dollars compan- question is for loss of affection and of interest and costs.” The sive ionship parents’ have been derived from whether the claims are would Although directly minority. The fact claims. there is no case child point, 411.135, par- our recent Floyd decision in v. which out the sets Ky., Gray, (1983) applies S.W.2d 936 ent to recover for loss of affec- by analogy. resulting companionship tion and from wrongful death of their child. It follows In Floyd Gray, the issue was whether interpreted that the two should be statutes statutory the wife’s con- consistently. sortium, arising consequence as a of an injury to her husband ain motor vehicle single ex element of accident Rep- covered the Motor Vehicle cluded under Claims Act when Act, deriving arations should be viewed by negligence liabili is occasioned from her husband’s claim. We held that 44.070(1). ty pain suffering.” “for or KRS spouse’s claim loss of consortium independent “compensation “is an The Act cause of action autho- 411.145(2),”i.e., allowed, awarded, rized independent paid pain *4 injury of action for suffering.” Appeals Id. The of injured on behalf of the at spouse. Id. 938. held, agree, and we of loss affection Gray may “While Mrs. have suffered a and companionship by of a caused child injuries, loss reason her husband’s suffering.” “pain child’s death is not and injuries any injuries are not covered Erde, See Or.App. Demars v. 55 640 consequently, and MVRA “pain P.2d 635 The words and suf year within the two statute of limitations fering” as used in law a term art are contained therein.” at Id. meaning “physical pain and mental suf person- fering” Thus we held that injury. while both the attendant to a See al injury and the loss of Frick, consortium claim Illinois Cent. R. Co. v. injury, derive from the same they belong to (1934); Shein, S.W.2d Deutsch v. entities, separate legal separately must be Ky., (1980). Appellants 597 S.W.2d 141 cite asserted, and shall not be as treated a certain Appeals’ dicta from the Court of single claim. The statute of limitations Watson, Ky. decision in Blankenship v.

provided by the MVRA for one does not App., (1984), appear 672 S.W.2d 941 which to the extend other. to to characterize an award of parents compan for loss of affection and cause of surviving The ionship pain of an infant son as claima parents for loss of compan affection and suffering. meaning, and If such was the it ionship parents asserted in the present is clearly case no erroneous and it is overruled. is different. It is a statu tory cause action created for the benefit University Kentucky surviving parents. KRS 411.130 autho Guynn, supra, we stated that under Sec personal representative rizes the of a dece tion 231 of the Constitution action, bring wrongful dent to Assembly General is authorized to waive gives the right him neither nor the authori sovereign remedy ty parents’ separate immunity, to “such a statutory assert companion may claim for loss of granted, affection and be or restricted at withdrawn ship would have legislature.” derived from their the will of the Id. at 416. As during minority. child The presently granted by drafted waiver regard have such a claim without wheth to Act does not exclude a Claims personal representative er the of the dece parent’s claim for loss of affection and dent ever asserts companionship of a minor child as created and, indeed, regard without to Assembly KRS 411.135. The General is whether ever power has to elimi restrict statute appointed. nate it of action should elect 411.145(2) do so. But until such time the statute is which sets out the obliged spouse changed, apply we are it accord consortium, wording ing is similar in meaning. to KRS to its common sense repre- Appeals prosecuted decision of the Court of is person. The appellees,

affirmed. The claims of the the deceased sentative of Blevins, Assembly may provide Fred Blevins and Letha re- how the are General go belong; manded to the Board of Claims for further and to whom made, proceedings opinion. provision consistent with this is and until such form of the same shall STEPHENS, C.J., LEIBSON, (Empha- person.” estate of the deceased WINTERSHEIMER, JJ., WHITE and con- sis cur. 411.130 follows the constitutional K.R.S. VANCE, J., separate opinion dissents designates the mandate and beneficiaries STEPHENSON, JJ., in which GANT and any recovery. Section join. provides: VANCE, Justice, dissenting. person re- “Whenever the death of neg- sults not, majority as stated in the The issue is another, ligence wrongful act of dam- opinion, whether K.R.S. 411.135 ages may recovered for the death with a to recover for loss of it, from the who caused or whose companionship that would affection and If act agent or servant caused it. from the deceased child have been derived gross, puni- or the was wilful minority, which may tive be recovered. The apart personal representative’s prosecuted per- action shall be provid- cause of action for *5 representative the deceased.” sonal 411.130. It is conceded that ed K.R.S. (Emphasis provided recovery to the other by K.R.S. 411.135 is addition wrongful action An action for death is an provided by death recoveries resulting for death K.R.S. 411.130. negligent or act. Ken- from a 241; Constitution, K.R.S. tucky Section The real issue is whether the 411.130(1). to The action in this case seeks recovery granted parents by K.R.S. 411.- to damages resulting from a death recover brought in their own name or 135 can be negligent wrongful act of caused brought it must on their behalf whether be is, therefore, wrongful another. It de- action. ceased. constitution of our state and recovery

A in a death action The clearly require state of future statutes of our expenses for medical and loss brought by death action earnings of a deceased minor is most It representative of the deceased. parents, it cases for the benefit clear to me that both the constitu- brought by in their own seems cannot be them authorizing wrongful names; brought by tion and the it must be brought prohibit an actions representative. parents. individually 241 of the Constitution Section Wrongful Death. Recovery for is entitled behind this lawsuit The obvious reason provides: $50,000.00 It attempt to circumvent Board of limitation on before the death of a

“Whenever the express any opinion negli- I Claims. will result then, personal representative of act, every whether gence sep- three case, the deceased could have asserted damages may recovered such Claims, corporations and arate claims before one for the estate of the deceased causing namely, the same. oth- so Until persons law, parents. each of the The fact and one for provided erwise not, and that matter is not is that he did damages shall in all cases recover only before us. The matter before us is

whether the can assert

wrongful death in their own I name. read

the constitution say and K.R.S. 411.130 to they cannot. majority opinion labors mightily over concept action, discern,

but insofar as I can does not ad-

dress the statutory and constitutional re-

quirements designating bring who must

the action. STEPHENSON, JJ„

GANT and join in

this dissent.

Billy STEARNS, Appellant, W. DAVIS, Appellee.

Ned SHELLEY, Appellant,

James O. *6 ASBERRY, Appellee.

Blene Appeals Court of Kentucky. Heist, Burkesville, Elmer appel- P. lants. 27,

Dec. 1985. Pritchard, Lovelace, Hile Eddie C. Thom- Reconsideration Denied Feb. 1986. Carroll, Albany, as E. for appellees. Discretionary Review Denied Supreme April Court OPINION AND ORDER DISMISSING C.J., HAYES,

Before and GUDGEL and WHITE, JJ.

WHITE, Judge. appeals

These consolidated arise from judgments entered the Clinton Circuit in two election contests filed in school board elections Novem- held ber of closely 1984. The cases are related alleged improprieties very that the were rep- similar contestants have been attorney throughout resented same litigation. sought The contestants