DAVIS (JENNIFER MARIE), ET AL. VS. JOHNSON (MELISSA NICOLE)Annotate this Case
RENDERED: FEBRUARY 20, 2009; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
JENNIFER MARIE DAVIS,
A MINOR; AND REBECCA
FAYE DAVIS, A MINOR
ON DISCRETIONARY REVIEW FROM WHITLEY CIRCUIT COURT
HONORABLE JERRY D. WINCHESTER, JUDGE
ACTION NO. 06-XX-00008
MELISSA NICOLE JOHNSON
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BEFORE: DIXON AND NICKELL, JUDGES; BUCKINGHAM,1 SENIOR
BUCKINGHAM, SENIOR JUDGE: The sole issue raised in this appeal is
whether a decedent’s stepchild who has not been legally adopted may recover a
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
share of damages under Kentucky’s wrongful death statute, KRS 411.130. The
Whitley District Court concluded that a stepchild who had not been adopted may
not share in the recovery, but the Whitley Circuit Court reversed. We conclude
that the Whitley District Court was correct. Thus, we reverse the judgment of the
Whitley Circuit Court.
Clarence Davis died as a result of injuries that he sustained in a
workplace accident that occurred on February 20, 2003. A wrongful death claim
was made by his estate that resulted in a settlement totaling over $5 million.
Under the terms of KRS 411.130, Clarence’s children are entitled to share equally
in one-half of the net recovery of the estate proceeds.2 The appellants, Rebecca
Faye Davis and Jennifer Marie Davis, are Clarence’s biological children. The
appellee, Melissa Nicole Johnson, is the biological daughter of Clarence’s wife,
Kathy Davis. Melissa was abandoned by her biological father, and Clarence acted
as a father to her since her birth, although he never legally adopted her.
The Whitley District Court ruled that Melissa, as an unadopted
stepdaughter, was not Clarence’s “child” within the meaning of the statute and
therefore was not entitled to a share of the settlement. Melissa appealed this
decision to the Whitley Circuit Court, which reversed on the ground that although
Clarence never formally adopted Melissa, he provided for her emotional and
financial needs just like any natural father. We granted Rebecca’s and Jennifer’s
petition for our discretionary review of the circuit court’s decision.
Clarence’s surviving spouse is entitled to the other one-half share.
KRS 411.130(2) provides that the amount recovered in a wrongful
death action shall be distributed in the following order:
(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
(c) If the deceased leaves a child or children, but no
widow or husband, then the whole to the child or
(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
It is the appellants’ position that Melissa does not qualify as a child of
the deceased under section (2)(b). They advocate a strict construction of the
language of the statute, arguing that if the Legislature had intended unadopted
stepchildren to be included as beneficiaries, it would have inserted specific
language to that effect. They also point to the difference in the duty of support
owed by a stepparent to an adopted child as opposed to an unadopted stepchild.
Absent an adoption, stepparents have no duty to support stepchildren in the event
of a divorce. See McDowell v. McDowell, 378 S.W.2d 814, 815 (Ky. 1964),
superseded on other grounds by statute as stated in Neidlinger v. Neidlinger, 52
S.W.3d 513 (Ky. 2001).
Melissa urges us to follow the circuit court’s broad interpretation of
the statute in order to further the public policy objective of recognizing the rights
of stepchildren. Because Clarence provided her with financial, educational, and
emotional support, she asserts that she is entitled to recover compensatory damages
for the loss of his life. She points to several statutes that place stepchildren on an
equal footing with biological or adopted children, including KRS 205.310
(stepparent has a duty to support a stepchild when receiving public assistance);
KRS 140.080 (stepchildren placed on the same footing as biological and adopted
children as class A beneficiaries when establishing inheritance tax rates); KRS
342.085 (stepchildren included in the definition of “child” for purposes of workers’
compensation statutes). Davis also detects a trend in our case law toward
expanding recovery for family members in wrongful death claims. She points to
Giuliani v. Guiler, 951 S.W.2d 318, 323 (Ky. 1997), wherein the Supreme Court of
Kentucky recognized a child’s common law right to loss of consortium damages
for the death or injury of a parent, even though KRS 411.135 permits only a parent
to claim loss of consortium damages for the death or injury of a child, and
Cummins v. Cox, 799 S.W.2d 5, 7 (Ky. 1990), wherein the Court held that the
father of an illegitimate child has standing to bring a wrongful death claim for the
death or injury of that child.
We are not persuaded by Melissa’s arguments, primarily because the
express inclusion of stepchildren by the Legislature in the statutes she cites
strongly suggests that they were intentionally excluded from KRS 411.130.
The primary rule [of statutory construction] is to
ascertain the intention from the words employed in
enacting the statute and not to guess what the Legislature
may have intended but did not express. Resort must be
had first to the words, which are decisive if they are
Gateway Const. Co. v. Wallbaum, 356 S.W.2d 247, 249 (Ky. 1962)(citations
As to Guiler and Cummins, we find that both cases are distinguishable
as neither extended standing to unadopted stepchildren. Moreover, if Melissa’s
argument is taken to its logical conclusion, she would have the right to recover for
the wrongful deaths of both her biological father and her stepfather, a benefit that
is not afforded to adopted children. See Sluder v. Marple, 134 S.W.3d 15, 16 (Ky.
App. 2003) (holding that an adopted child cannot recover upon the wrongful death
of its biological parent).
Finally, our survey of other jurisdictions has not revealed any cases
holding that an unadopted stepchild may recover under that state’s wrongful death
statute except for Moon Distributors, Inc. v. White, 434 S.W.2d 56 (Ark. 1968),
and Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (D.D.C.
2006). See Klossner v. San Juan County, 586 P.2d 899, 902 (Wash.App. 1978) (“it
is the uniform rule that unadopted stepchildren are not beneficiaries of a wrongful
Moon Distributors and Estate of Heiser are both distinguishable
because of the wording of the statutes at issue. As to Moon Distributors,
Arkansas’ wrongful death statute specifically includes as beneficiaries “persons to
whom the deceased stood in loco parentis.” Had our Legislature included a similar
provision in KRS 411.130, the result in Melissa’s case may have been different.
Similarly, in Estate of Heiser, the pertinent statute provided that unadopted
children could recover if clear and convincing evidence showed that the stepparent
would have adopted the child but for a legal barrier. Id. at 313, n. 14. KRS
411.130 contains no such provision.
The judgment of the Whitley Circuit Court is therefore reversed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Paul K. Croley, II
Frank A. Atkins