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finding that in the absence of Kentucky law on a given issue, it is appropriate at times for this Court to predict how Kentucky's highest court would rule
Summary of this case from Nat'l Tr. Ins. Co. v. Heaven Hill Distilleries, Inc.Opinion
Civil Action No. 3:01-CV-346-H
May 22, 2002
MEMORANDUM OPINION
Plaintiffs, Reyes Rivas and Sandra Rivas, have filed a complaint alleging damages for loss of consortium. Defendant has now moved for summary judgment. The unusual posture of the case raises a number of difficult procedural issues.
Plaintiff, Sandra Rivas, is a minor, represented by her parent and next friend, Julio Hernandez. Reyes Rivas, Sandra's sister, is no longer a minor and has filed suit in her own name.
On March 18, 1994, Defendant, a physician licensed to practice medicine in the Commonwealth of Kentucky, performed a hysterectomy on Catalina Rivas. Catalina Rivas died during the procedure, allegedly of blood loss attributable to Defendant's negligence. In September 1994, Plaintiff Hernandez, acting as administrator of Catalina Rivas' estate, filed a civil action for wrongful death in Jefferson Circuit Court against Defendant and the University of Louisville Hospital. The parties conducted extensive pre-trial discovery. On January 29, 1997, the circuit court entered a voluntary dismissal with prejudice in accordance with Civil Rule 41.01 of the Kentucky Rules of Civil Procedure.
On June 7, 2001, Plaintiffs filed the instant action, alleging that Defendant was negligent in the performance of the procedure, and seeking damages for loss of consortium. In Guiliani v. Guiler, 951 S.W.2d 318 (Ky. 1997), the Supreme Court of Kentucky recognized the right of a minor child to recover for loss of consortium, but did not state whether its holding was retrospective or prospective.
In support of his motion, Defendant argues that the principle of res judicata precludes these claims, and that no language in Guiliani states or implies that its holding is retrospective. After a thorough review, the Court concludes that it should deny summary judgment at this time.
I.
Federal courts must "give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged." Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466 (1982). Thus, this Court may hear Plaintiffs' claims only if Kentucky's law of res judicata would not preclude its own courts from hearing them.
"The doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction." Yeoman v. Commonwealth, 983 S.W.2d 459, 464 (Ky. 1998) (citation omitted). Res judicata encompasses two types of preclusion: claim preclusion and issue preclusion (also called collateral estoppel). "Claim preclusion bars a party from relitigating a previously adjudicated cause of action and entirely bars a new lawsuit on the same cause of action. Issue preclusion bars the parties from relitigating any issue actually litigated and finally decided in an earlier action." Id. at 465 (citations omitted). The Court will consider separately the applicability of claim preclusion and issue preclusion.
"Although there are some cases that confine the term `res judicata' to that aspect of the doctrine which precludes the litigation of the same cause of action, the term, in its literal meaning of a `matter adjudged,' is broad enough to include, in addition, the other aspect of the doctrine, which precludes the relitigation of the same facts or issues in a subsequent action on a different cause of action, and the term `res judicata' is, indeed, so used in numerous cases." 46 Am. Jur.2d Judgments § 514 (1994) (citations omitted).
A.
Claim preclusion requires three elements. "First, there must be identity of the parties. Second, there must be identity of the causes of action. Third, the action must have been resolved on the merits." Yeoman, 983 S.W.2d at 465 (citations omitted). In the 1994 action in Jefferson Circuit Court, Catalina Rivas' estate sued Defendant and the University of Louisville Hospital for wrongful death. The Court concludes that the prior action does not preclude this action because the claims and parties are not identical.
It is true that wrongful death and parental consortium claims "require similar proof of negligence." Gailor v. Armstrong, 187 F. Supp.2d 729, 738 (W.D.Ky. 2001). However, "[e]ven though a wrongful death action and a loss of consortium claim may arise from the same injury, they belong to separate legal entities and consequently should not be treated as a single claim." Guiliani, 951 S.W.2d at 322. A consortium claim allows "recover[y] for loss of affection and companionship," while the damages in a wrongful death claim "are such sum as will fairly and reasonably compensate the decedent's estate for the destruction of the decedent's earning power, and do not include the affliction which has overcome the family by reason of the wrongful death." Dept. of Education v. Blevins, 707 S.W.2d 782, 783 (Ky. 1986) (emphasis original). Indeed, a plaintiff may assert a claim for loss of consortium "without regard to whether the personal representative of the decedent ever asserts a claim for wrongful death, and, indeed, without regard to whether a personal representative is ever appointed." Id. at 785.
Blevins addressed a consortium claim by parents for the loss of their child. However, the analysis is no different for a consortium claim by children for the loss of their parent. The Supreme Court stated in Guiliani that "[t]he claim of loss of parental consortium is a reciprocal of the claim of the parents for loss of a child's consortium," and that "there is no legal distinction between the claim of a parent for loss of a child's consortium from the claim of a child for the loss of a parent's consortium." 951 S.W.2d at 321. The Court of Appeals has read this language to mean that parental consortium claims should be treated in all respects like claims for loss of a child's consortium. See Lambert v. Franklin Real Estate Co., 37 S.W.3d 770, 779-80 (Ky.Ct.App. 2000).
This holding makes perfect sense. The loss to a decedent's estate and the loss to the decedent's family are different in kind and character; consequently, "[t]he personal representative, suing on behalf of the estate, could have no interest in the loss suffered by the [family] and should have no right or duty to represent them its recovery." Id. at 784. As personal representative of the estate, Hernandez had "neither the right nor the authority" to assert consortium claims on behalf of Catalina Rivas' children. Id. at 785.
Because Hernandez lacked standing to assert these claims as part of the 1994 action, the children should not be precluded from asserting them now.
B.
Defendant argues that, alternatively, the Court should find that the Jefferson Circuit Court's dismissal of the estate's wrongful death action precludes relitigation of the issue of Defendant's negligence. As stated above, "[i]ssue preclusion bars the parties from relitigating any issue actually litigated and finally decided in an earlier action." Yeoman, 983 S.W.2d at 465. Issue preclusion is appropriate where four elements are present:
First, the issue in the second case must be the same as the issue in the first case. Second, the issue must have been actually litigated. Third, even if an issue was actually litigated in a prior action, issue preclusion will not bar subsequent litigation unless the issue was actually decided in that action. Fourth, for issue preclusion to operate as a bar, the decision on the issue in the prior action must have been necessary to the court's judgment.Id. (citations omitted).
The issue of Defendant's negligence in performing the hysterectomy was present in the 1994 action and is present here. However, the issue was not litigated, decided, or necessary to the court's dismissal. "[T]he doctrine of collateral estoppel is not applicable . . . where there were no findings of fact . . ." Cream Top Creamery v. Dean Milk Co., 383 F.2d 358, 363 (6th Cir. 1967); accord Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 326 (1955) ("No question of collateral estoppel by the former judgment is involved because the case was never tried and there was not, therefore, such finding of fact which will preclude the parties to that litigation from questioning the finding thereafter."). The circuit court's dismissal with prejudice of the 1994 wrongful death action does not constitute a finding that Defendant did not negligently cause Rivas' death. While the dismissal bars any further negligence claims by those claiming in the decedent's name, it does not bar Plaintiffs from litigating their separate cause of action which encompasses the question of Defendant's negligence.
II.
Defendant argues further that, even if res judicata does not bar this action, Plaintiffs may not recover because Guiliani did not create a retrospective cause of action. Because the Supreme Court has not spoken on this question, this Court "must predict how the state's highest court would rule." Grego v. Meijer, Inc., 187 F. Supp.2d 689, 691 (W.D.Ky. 2001). To do so, the Court "must ascertain from all available data what the state law is and apply it." Dinsmore Instrument Co. v. Bombardier, Inc., 199 F.3d 318, 320 (6th Cir. 1999) (citation omitted). Unfortunately, there is little available data pointing to a clear answer to this question. In the final analysis, however, the Court predicts that the Supreme Court of Kentucky would hold that Guiliani applies retrospectively.
Defendant contrasts Guiliani with Kotsiris v. Ling, 451 S.W.2d 411 (Ky. 1970), in which the Court of Appeals of Kentucky — then the Commonwealth's highest court — created the common law right of a wife to sue for loss of her husband's consortium, and stated specifically that the holding should apply retrospectively. Guiliani failed to address, let alone answer, this question. However, in Kotsiris, the court noted that "ordinarily, there is no good reason for a new rule of tort law not to be applied retrospectively." Id. at 413. In so holding, the court cited Haney v. City of Lexington, 386 S.W.2d 738 (Ky. 1964), in which the Court of Appeals, considering the "difficult" question of whether its abolition of municipal tort immunity should apply retrospectively, distinguished between "the law of real property or other fields where stability and predictability are often of utmost concern," and tort law, where "the rule of stare decisis is admittedly limited." Id. at 741. In property and contract law, retrospective application of a new common law rule implicates reliance interests, but these interests are less often present in the tort context. Id. at 742 ("It is difficult to believe a city or any of its agents ever committed a tort deliberately and in reliance upon the doctrine of governmental immunity."); compare with Lasher v. Commonwealth, 418 S.W.2d 416, 419 (Ky. 1967) ("The chief reason for denial of retrospective application has been to preserve property rights acquired in reliance upon the law that is being changed by the new decision.").
Defendant suggests that Kentucky courts' decisions creating new common law causes of action apply retrospectively only if the court specifically says so. However, the opposite seems to be true. In Craft v. Rice, 671 S.W.2d 247 (Ky. 1984), the Supreme Court of Kentucky adopted the tort of outrageous conduct, leaving unanswered the question whether it would apply retrospectively; however, in Zurich Ins. Co. v. Mitchell, 712 S.W.2d 340 (Ky. 1986), the court evaluated the appellee's outrageous conduct claim — the alleged conduct underlying which predated the creation of the tort in Craft — and, by doing so, appears to have proceeded upon the assumption that Craft applied retrospectively. Similarly, since the adoption of the common law tort of negligent hiring in Oakley v. Flor-Shin, Inc., 964 S.W.2d 438 (Ky.Ct.App. 1998), courts seem to have implicitly assumed that the cause of action applies retrospectively to conduct which occurred before the Oakley decision. See Turner v. Pendennis Club, 19 S.W.3d 117 (Ky.Ct.App. 2000); Roman Catholic Diocese of Covington v. Secter, 966 S.W.2d 286 (Ky.Ct.App. 1998).
The cause of action of loss of parental consortium is not yet five years old, and consequently, few appellate court decisions have encountered and discussed it. None has addressed the issue of retrospectivity. Nevertheless, the presumption of retrospectivity makes common sense. The presumption provides all persons with equal rights under the new common law rule. To deny retrospectivity would create all manner of difficult questions about when a valid cause of action could arise and would eventually create unequal treatment. These factors are highly persuasive to Kentucky courts. Left to predict how the Supreme Court would rule, this Court concludes that it would permit Plaintiffs' claims to proceed.
In Roethke v. Sanger, 68 S.W.3d 352 (Ky. 2001), the Supreme Court considered parental consortium claims which arose from a wrongful death in 1992 and thus predated the Guiliani decision by several years. Upon a thorough analysis, the court affirmed the Court of Appeals' dismissal of the claims on the grounds that the appellee was not vicariously liable under Kentucky agency and partnership law. It is uncertain whether the appellee ever raised the issue of retrospectivity, but, in any event, the Court finds it instructive that the Supreme Court did not raise that issue and considered the claims on their merits. 68 S.W.3d at 356-64.
The Court will enter an Order consistent with this Memorandum Opinion.
ORDER
Defendant has moved for summary judgment on Plaintiffs' claims for loss of consortium. Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendant's motion for summary judgment is DENIED.