CAROLYN M. SMITH; CARLA R. SULLIVAN; AND CLIFTON T. CATHEY v. MIREILLE L. VILVARAJAH, M.D.; EARL WILLIAMS, M.D.; AMERICAN HOME PRODUCTS CORPORATION; WYETH-AYERST LABORATORIES, A DIVISION OF AMERICAN HOME PRODUCTS CORPORATION; A.H. ROBINS COMPANY, INC.; A.H. ROBINS COMPANY, INCORPORATED; EON LABS, INC.; AND EON LABS MANUFACTURING, INC.
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RENDERED:
NOVEMBER 17, 2000; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002282-MR
CAROLYN M. SMITH; CARLA R.
SULLIVAN; AND CLIFTON T. CATHEY
APPELLANTS
APPEAL FROM SIMPSON CIRCUIT COURT
HONORABLE WILLIAM R. HARRIS, JUDGE
ACTION NO. 99-CI-00142
v.
MIREILLE L. VILVARAJAH, M.D.; EARL WILLIAMS, M.D.;
AMERICAN HOME PRODUCTS CORPORATION;
WYETH-AYERST LABORATORIES,
A DIVISION OF AMERICAN HOME PRODUCTS
CORPORATION; A.H. ROBINS COMPANY, INC.;
A.H. ROBINS COMPANY, INCORPORATED;
EON LABS, INC.; AND EON LABS
MANUFACTURING, INC.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, JOHNSON, AND KNOPF, JUDGES.
KNOPF, JUDGE:
This is an appeal from a judgment by the Simpson
Circuit Court dismissing a complaint seeking recovery for loss of
parental consortium.
We agree with the trial court that Kentucky
does not recognize a cause of action for loss of parental
consortium brought by emancipated adult children of the decedent.
Hence, we affirm.
The underlying facts of this action are not in dispute.
Linda K. Cathey died on May 15, 1998.
Subsequently, her estate
brought a separate wrongful death action, alleging that Cathey
died as a result of her ingestion of the medications fenfluramine
and phentermine (commonly referred to in combination as “fenphen”).1
According to the complaint, the medications were
prescribed by Mireille L. Vilvarajah, M.D., and Earl Williams,
M.D.; the fenfluramine was manufactured, marketed, and
distributed by American Home Products Corporation, Wyeth-Ayerst
Laboratories, a division of American Home Products Corporation,
and A.H. Robins Company, Inc.; and the phentermine was
manufactured, marketed, and distributed by Eon Labs, Inc., and
Eon Labs Manufacturing, Inc. (Collectively, the appellees).
The
record does not disclose the disposition of the wrongful death
action.
On May 14, 1999, the appellants, Carolyn M. Smith,
Carla R. Sullivan, and Clifton T. Cathey, brought this action
against the appellees in Simpson Circuit Court.
are the adult children of Linda K. Cathey.
The appellants
The appellants sought
to recover damages from the appellees arising out of the loss of
their mother’s consortium.
The appellees filed a motion to
dismiss pursuant to CR 12.02, arguing that Kentucky does not
recognize a claim for loss of parental consortium brought by
1
Carla R. Sullivan, personal representative of the estate of Linda Cathey, deceased v.
Mireille Lalanne Vilvarajah, M.D., et al., No. 97-CI-00280 (Simpson Circuit Court).
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adult children.
The trial court agreed with the appellees, and
dismissed the appellants’ claim.
This appeal followed.
In Giuliani v. Guiler, Ky., 951 S.W.2d 318 (1997), the
Kentucky Supreme Court recognized loss of parental consortium
claims by minor children.
The Court further held that recovery
under a wrongful death claim is generally limited to economic
loss, and explained that loss of consortium is a wholly separate
cause of action from wrongful death. Id. at 322.
The appellants
contend that this Court should take the next step and recognize a
claim for loss of parental consortium on behalf of adult
children.
The appellees first respond that such a step is beyond
the authority of the Court of Appeals.
They assert that the
decision in Giuliani v. Guiler precludes this Court from
considering whether Kentucky recognizes a claim for loss of
parental consortium by adult children.
We do not agree.
Of
course, as an intermediate appellate court, this Court is bound
by established precedents of the Kentucky Supreme Court.
1.030(8)(a).
SCR
The Court of Appeals cannot overrule the
established precedent set by the Supreme Court or its predecessor
court.
Special Fund v. Francis, Ky., 708 S.W.2d 641, 642 (1986).
However, this rule does not prevent an intermediate appellate
court from considering the viability of a cause of action where
the issue has not been definitively resolved by the Supreme
Court.
See Oakley v. Flor-Shin, Inc.,
(1998).
-3-
Ky.
App., 964 S.W.2d 438
In Giuliani v. Guiler, supra, the Kentucky Supreme
Court recognized loss of parental consortium claims by minor
children.
The appellees contend that the Giuliani court
considered and rejected the possibility of extending the new
cause of action for loss of parental consortium to adult
children.
However, nothing in the Giuliani opinion addresses
that issue, and that matter was not before the Court.
Courts are
not authorized to give advisory opinions on issues unless there
is an actual case in controversy.
S.W.2d 491, 493 (1992).
Philpot v. Patton, Ky., 837
Therefore, we find that the Supreme
Court’s holding was limited to the issue before it.
Since
Giuliani v. Guiler is silent regarding the viability of claims
for loss of parental consortium brought by adult children and
there is no other controlling Kentucky authority, we find that
this Court is authorized to consider the matter as an issue of
first impression.
However, we recognize that the Supreme Court’s opinion
in Giuliani v. Guiler, supra, set forth specific policy reasons
for recognizing the claim.
This Court should attempt to stay
within those established parameters.
The Supreme Court first
noted the statutory policy of the Commonwealth to protect and
care for children in a nurturing home.
KRS 600.010.
Clearly,
this interest would not be served by extending a claim for loss
of parental consortium to emancipated adult children.
In
addition, the Supreme Court also noted that KRS 411.135
recognizes the individuality of the child and the value to a
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family by providing parents a consortium claim for the loss of
the love and affection of their minor child.
319.
Id., 951 S.W.2d at
In this case, there is no reciprocity interest because
Kentucky statutes do not recognize a parent’s claim for loss of
consortium with their adult children.
Nevertheless, the appellants urge that recognition of
their claim for loss of parental consortium is the next logical
step from Giuliani v. Guiler.
The appellants rely heavily upon
Frank v. Superior Court, 150 Ariz. 228, 722 P.2d 955 (1986), in
which Arizona recognized that parents may have a claim for loss
of consortium arising out of negligent injury to or wrongful
death of their adult children.
The Arizona Supreme Court
rejected as archaic the notion that consortium claims arise out
of the common-law notion that parents are entitled to the
pecuniary services of their child until the age of majority.
Rather, the Arizona court reasoned:
It is irrelevant that parents are not
entitled to the services of their adult
children; they continue to enjoy a
legitimate and protectible [sic] expectation
of consortium beyond majority arising from
the very bonds of the family relationship.
Surely nature recoils from the suggestion
that the society, companionship and love
which compose filial consortium automatically
fade upon emancipation; while common sense
and experience teach that the elements of
consortium can never be commanded against a
child's will at any age. The filial
relationship, admittedly intangible, is
ill-defined by reference to the ages of the
parties and ill-served by arbitrary age
distinctions. Some filial relationships will
be blessed with mutual caring and love from
infancy through death while others will
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always be bereft of those qualities.
Therefore, to suggest as a matter of law that
compensable consortium begins at birth and
ends at age eighteen is illogical and
inconsistent with common sense and
experience. Human relationships cannot and
should not be so neatly boxed. "The law does
not fly in the face of nature, but rather
acts in harmony with it." Harper v. Tipple,
21 Ariz. 41, 44, 184 P. 1005, 1006 (1919)
(citation omitted).
Frank, 722 P.2d at 960.
However, the Arizona Supreme Court also went on to
discuss that Arizona’s wrongful death statute does not
distinguish between minor and adult children.
Id.
Similarly,
several states which recognize either that a parent has a cause
of action for loss of an adult child’s consortium or that an
adult child has a cause of action for loss of his or her parent’s
consortium do so based in part upon specific statutory
authorization.
Some other states recognizing the claim do so
based upon the absence of any statutory limitation of the
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consortium claims to minors.2
As previously noted KRS 411.135
explicitly 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.
In contrast to the holdings in Arizona and other
states, the Supreme Court of Wisconsin noted that a minor is one
whose relationship is most likely to be severely affected by a
negligent injury to a parent.
Theama v. City of Kenosha, 117
Wis. 2d 508, 344 N.W.2d 513 (1984):
2
See Jordan v. Three Rivers Hospital, 984 S.W.2d 593, 601 (Tenn. 1999), holding that
Tennessee’s wrongful death statute does not preclude either a minor child or an adult child from
seeking compensation for loss of parental consortium; Nelson v. Four Seasons Nursing Center,
934 P.2d 1104 (Okla. App. 1996), holding that Oklahoma’s wrongful death statute expressly
allows recovery for the “loss of companionship of the children and parents of the decedent”
without regard to the age of the claimant. Id. at 1105; Sebastien v. McKay, 649 So.2d 711 (La.
Ct. App. 1994), holding that while claims for loss of consortium are usually made by minor
children, Louisiana statutes offer relief without regard to the majority or minority of the party
aggrieved; Masaki v. General Motors Corp., 71 Haw. 1, 780 P.2d 566 (1989), holding that
Hawaii’s wrongful death statute recognized a parent’s cause of action for loss of an adult child’s
consortium; and Audubon-Exira Ready Mix, Inc. v. Illinois Central Gulf Railroad Co., 335
N.W.2d 148 (Iowa 1983), did not rely on any statutory language, but concluded that the Iowa
wrongful death statute did not limit a child’s claim for loss of a parent’s consortium to the period
of the child’s minority. Overruling Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981). The courts in
Reagan v. Vaughn, 804 S.W.2d 463 (Tex. 1990), and Ueland v. Reynolds Metals Co, 103 Wash.
2d 131, 691 P.2d 190 (1984), recognized common law claims for loss of parental consortium by
a minor child in negligent injury cases, and then gratuitously extended the cause of action to
adult children. But see Mealey v. Marella, 328 N.J. Super. 129, 744 A.2d 1226 (N.J. Super Ct.
Law Div. 1999), in which recently a New Jersey appellate court recognized a common law cause
of action under which parents could claim loss of consortium caused by negligent injury to an
adult child. Yet more recently, Mealey was overruled in part by Tynan v. Curzi, 332 N.J. Super.
267; 753 A.2d 187 (N.J. Super. App. Div. 2000).
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Furthermore, while an adult is capable of
seeking out new relationships in an attempt
to fill in the void of his or her loss, a
child may be virtually helpless in seeking
out a new adult companion. Therefore,
compensation through the courts may be the
child's only method of reducing his or her
deprivation of the parent's society and
companionship. See, [Note, The Child's Right
to Sue for Loss of a Parent's Love, Care and
Companionship Caused by Tortious Injury to
the Parent, 56 B.U.L. Rev. 722, 742 (1976)].
Id. at 516, 344 N.W.2d at 516.
We certainly do not wish to diminish or disparage the
close bond which many adult children maintain with their parents.
However, contrary to the reasoning of the appellants and the
reasoning of the Arizona Supreme Court in Frank v. Superior
Court, supra, there is a legitimate basis for limiting recovery
for loss of parental consortium to minor or unemancipated
children.
See also Belcher v. Goins, 184 W.Va. 395, 400 S.E.2d
830 (1990), in which West Virginia recognized that a minor or
dependent child may have a claim for loss of parental consortium
in a non-fatal injury case, but declined to extend the claim to a
non-dependent adult child; Mendillo v. Board of Education of the
Town of East Haddam, 246 Conn. 456, 717 A.2d 1177 (1998),
Pence
v. Fox, 813 P.2d 429 (Mont. 1991), Nulle v. Gillette-Campbell
County Joint Powers Fire Board, 797 P.2d 1171 (Wyo. 1990);
Hibpshman v. Prudhoe Bay Supply, Inc., 734 P.2d 991 (Alaska
1987); and Hay v. Medical Center Hospital of Vermont, 145 Vt.
533, 496 A.2d 939 (1985), which each limited common law loss of
parental consortium claim to minors; and Ferriter v. Daniel
-8-
O'Connell's Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980),
holding that “children have a viable claim for loss of parental
society if they can show that they are minors dependent on the
parent . . . .
This dependence must be rooted not only in
economic requirements, but also in filial needs for closeness,
guidance, and nurture.”
Id. at 516, 413 N.E.2d at 696.
After considering the Supreme Court’s decision in
Giuliani v. Guiler, supra, the express language of KRS 411.135
and the authority from other jurisdictions, we decline to extend
the claim for loss of parental consortium to emancipated adult
children such as the appellants.
We conclude that any such step
must be taken either by the legislature or by our Supreme Court.
Consequently, the trial court acted properly in dismissing the
appellant’s complaint.
Accordingly, the judgment of the Simpson Circuit Court
is affirmed.
JOHNSON, JUDGE, CONCURS AND FILES SEPARATE OPINION.
COMBS, JUDGE, DISSENTS BY SEPARATE OPINION.
JOHNSON, JUDGE, CONCURRING:
I concur with the Majority
Opinion, but choose to write separately to express my reasoning.
In the interest of brevity, I adopt my reasoning from the
Majority Opinion in the case of Clements v. Moore, 1999-CA000899-MR rendered October 20, 2000.
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COMBS, JUDGE, DISSENTING: I dissent from the majority
opinion as I believe that loss of consortium of an adult child is
a logical and proper extension of the reasoning of Giuliani v.
Guiler, Ky., 951 S.W.2d 318 (1997).
Loss of financial support
needed by dependent children was not the only factor considered
in Giuliani.
The deprivation of love, companionship, and
affection was certainly a major component of the loss of
consortium claim weighed in that case.
That loss is in no way
mitigated by the fact that a child has attained the age of
majority.
Indeed, the bond of love established over a lifetime
of association is only enhanced by the passing of time, rendering
the loss perhaps even more painful.
I would recognize this natural extrapolation of
Giuliani and hold a claim for loss of a parent’s consortium by an
adult child to be a cognizable cause of action in Kentucky.
-10-
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE
MIREILLE L. VILVARAJAH, M.D.:
Philip N. Elbert
Kendra E. Samson
Neal & Harwell, P.L.C.
Nashville, Tennessee
Laura M. Hagan
Thomas N. Kerrick
Kerrick, Grise & Stivers
Bowling Green, Kentucky
ORAL ARGUMENT FOR APPELLANTS:
ORAL ARGUMENT FOR APPELLEE
MIREILLE L. VILVARAJAH, M.D.:
Kendra E. Samson
Nashville, Tennessee
Scott Laufenberg
Bowling Green, Kentucky
BRIEF FOR APPELLEE
EARL B. WILLIAMS, M.D.:
Frank Hampton Moore, Jr.
Stefan Richard Hughes
Cole, Moore & Baker
Bowling Green, Kentucky
ORAL ARGUMENTS FOR APPELLEE
EARL B. WILLIAMS, M.D.:
Stefan Richard Hughes
Bowling Green, Kentucky
BRIEF FOR APPELLEES
AMERICAN HOME PRODUCTS CORP
AND WYETH-AYERST LABORATORIES:
William D. Grubbs
Jann B. Logsdon
David T. Schaefer
Tera M. Rehmel
Woodward, Hobson & Fulton,
L.L.P.
Louisville, Kentucky
ORAL ARGUMENTS FOR APPELLEES
AMERICAN HOME PRODUCTS CORP
AND WYETH-AYERST LABORATORIES:
David T. Schaefer
Louisville, Kentucky
BRIEF FOR APPELLEES
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EON LABS, INC., AND EON LABS
MANUFACTURING, INC.:
Larry C. Deener
Alex L. Scutchfield
Landrum & Shouse
Lexington, Kentucky
ORAL ARGUMENTS FOR APPELLEES
EON LABS, INC., AND EON LABS
MANUFACTURING, INC.:
Alex L. Scutchfield
Lexington, Kentucky
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