HOLLOWAY (KIM) VS. HOLLOWAY (SARAH), ET AL.Annotate this Case
RENDERED: OCTOBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
KIM HOLLOWAY, AS PERSONAL
REPRESENTATIVE FOR THE ESTATE
OF CHRIS HOLLOWAY (DECEASED)
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE TIMOTHY C. STARK, JUDGE
ACTION NO. 06-CI-00980
SARAH HOLLOWAY AND GRANGE
MUTUAL CASUALTY COMPANY, AN
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BEFORE: ACREE AND CLAYTON, JUDGES; GUIDUGLI,1 SENIOR JUDGE.
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS)
ACREE, JUDGE: In this appeal we address whether the statutory hierarchy of
Kentucky Revised Statutes (KRS) 411.130, which establishes the order by which
surviving beneficiaries may receive damages in an action for wrongful death,
allows the amount recovered under the statute to pass over negligent beneficiaries
to the next level of kindred. Because we hold that the unambiguous language of
the statute prohibits such an interpretation, we affirm the trial court’s ruling.
On October 12, 2003, Kentucky residents Sarah Holloway and her
husband, Chris Holloway, were traveling by car in Vienna, Illinois. Sarah was
driving; Chris was her passenger. Sarah lost control of the vehicle, veered off the
road and struck a tree. Sarah suffered severe injuries but survived. Chris suffered
terminal injuries, and was pronounced dead at the scene.
Chris’s mother, Kim Holloway, and Sarah were appointed coadministrators of Chris’s estate. On behalf of Chris’s estate, Kim filed suit in
Johnson County, Illinois, asserting a wrongful death claim against Sarah and a bad
faith claim against Grange Mutual Insurance Company. That complaint was filed
exactly two years after the accident, on October 12, 2005. On March 26, 2006, the
Illinois court dismissed the estate’s complaint based on Illinois Supreme Court
Rule 187, governing Illinois’ doctrine of forum non conveniens. The estate refiled
the complaint in McCracken Circuit Court on September 18, 2006.2
The complaint filed in McCracken Circuit Court added a common law negligence count for the
first time. The lower court ruled that this claim was barred by the applicable statutes of
limitation. KRS 413.140 and KRS 304.39-230. The court also ruled that the wrongful death
claim was timely based on the waiver provision of the Illinois rule. Neither of these rulings has
been challenged on appeal.
Sarah and Grange filed motions for summary judgment. Ultimately,
our review requires examination of KRS 411.130. That statute states in relevant
(1) Whenever the death of a person results from an injury
inflicted by the negligence or wrongful act of another,
damages may be recovered for the death from the person
who caused it . . . . The action shall be prosecuted by the
personal representative of the deceased.
(2) The amount recovered . . . shall be for the benefit of
and go to the kindred of the deceased in the following
(a) If the deceased leaves a widow . . . and no
children . . . then the whole to the widow or
(d) If the deceased leaves no widow . . . then the
recovery shall pass to the mother . . . .
KRS 411.130. Though a wrongful death action is prosecuted by the estate, the
amount recovered passes directly to the statutory beneficiary and outside the
estate’s administration. Rhodes v. Rhodes, 764 S.W.2d 641, 643 (Ky.App. 1988).
In granting summary judgment in favor of Sarah and Grange, the trial
In the case at bar, the decedent . . . was survived by a
spouse, but no children. Therefore, the spouse, Sarah
Holloway, is the sole beneficiary. It appears to this Court
that comparative negligence is irrelevant in an analysis of
the facts before it. If the decedent was in any way at
fault, a recovery could not be had on his behalf due to
Some evidence in the record indicates that Chris may have grabbed the steering wheel, thereby
contributing to the cause of the accident and, consequently, his own death.
the negligence of his actions. If Sarah Holloway was
negligent, she cannot recover for her own negligence.
So, regardless whether there could be some
apportionment of fault between Sarah Holloway and the
decedent, fault bars recovery.
[The estate] argues that in some fashion the benefits
arising out of the wrongful death of the decedent could
pass to the next category of beneficiary [the mother].
The Court rejects [the estate’s] reasoning.
(Summary Judgment in Favor of Defendants, entered June 11, 2007). We agree
with the trial court that the estate’s reasoning should be rejected.
The estate asserts that the trial court’s analysis fails to properly
consider the case of Citizen State Bank v. Seaboard System RR, Inc., 803 S.W.2d
585 (Ky.App. 1991). In that case, a husband was at the wheel of the family car,
with his wife in the front passenger seat, and their daughter in the back seat. The
husband was distracted by his daughter and, as he returned his attention to the
road, the automobile collided with a train at a railway crossing. The wife died as a
result of the accident and her estate brought a wrongful death suit against the
husband and the railway company.
A jury awarded the estate $500,000, plus funeral expenses for the
death of the wife, apportioning 50 percent of the liability to the husband and 50
percent to the railway company. This court held that while the husband was not
completely barred from recovery, he was barred to the extent his negligence caused
the death of his wife. He was entitled to recover to the extent of the railway’s
Phelps v. Louisville Water Co., 103 S.W.3d 46, 56 (Ky. 2003)(estate’s recovery in wrongful
death claim reduced in proportion to decedent’s fault).
negligence only. We held that the daughter was entitled to recover $250,000 of the
judgment amount, to be paid equally by the husband and the railway company.
Because the husband himself was 50 percent negligent, he was awarded only
$125,000, or 50 percent of his half of the total recovery, which represented the
percentage attributable to the railway’s negligence. The total amount of the award
was $375,000. Each of the liable parties, the railway company and the husband,
was ordered to pay this damage amount in equal portions to reflect their equal
liability. Id. at 590.
In its analysis of Seaboard, the estate correctly notes the case stands
for the proposition that Kentucky’s adoption of the doctrine of comparative fault
means that a negligent beneficiary may not always be completely barred from
recovery. However, the estate disregards two significant factors that distinguish
that case from this.
First, there were two statutory beneficiaries in Seaboard – the
husband and the daughter. The daughter was able to recover her share of damages
unaffected by apportionment because she was completely without fault. The only
statutory beneficiary in the case before us is Sarah. Seaboard unquestionably
retains the rule that a beneficiary under KRS 411.130 is barred from recovery to
the extent her negligence caused the decedent to die. Id. at 590 (“Mr. Anderson . .
. is barred to the extent that his negligence caused the death of his wife.”).
Second, in Seaboard there was a third-party tortfeasor – the railway
company. Consequently, liability could be attributed to a party that was not a
beneficiary under the statute, and damages awarded for the benefit of one who was
both a beneficiary and only partly at fault. Therefore, the beneficiary or
beneficiaries under the statute were able to fully recover damages attributable to
that third-party tortfeasor’s negligence. Id. at 590.
At its core, the estate’s argument, and the key to recovery, is that KRS
411.130 should be read to treat Kim, Chris’s mother, as a “non-negligent successor
beneficiary.” If this could be accomplished, Kim would be entitled to recover as
did the daughter in Seaboard – perhaps to an even greater degree. Unfortunately
for Kim, this cannot be accomplished.
Initially, we note that “the plain meaning of the statutory language is
presumed to be what the legislature intended, and if the meaning is plain, then the
court cannot base its interpretation on any other method or source.” Revenue
Cabinet v. O’Daniel, 153 S.W.3d 815 (Ky. 2005). Once the plain meaning of the
statute’s language is ascertained and deemed unambiguous, “[w]e are not at liberty
to add or subtract from the legislative enactment nor discover meaning not
reasonably ascertainable from the language used.” Beckham v. Board of
Education, 873 S.W.2d 575, 577 (Ky. 1994).
The estate asks this Court to consider the approach of the Supreme
Court of Rhode Island. In Commercial Union Ins. Co. v. Pelchat, 727 A.2d 676
(R.I. 1999), that court, examining a wrongful death statute comparable to ours,
we interpret the words of [Rhode Island’s wrongful death
statute] “if there is no husband,” to intend “if there is no
husband legally entitled to recover.”
Pelchat at 682.
In order to follow Rhode Island’s lead and add these words to our
statute, we would first be required to find the language in our own statute
ambiguous. We have already held that it is not. We believe, rather, that the order
of beneficiary entitlement prescribed in the statute reflects a public policy
determination by the Kentucky Legislature that spouses and children take priority
over parents when they survive the decedent in wrongful death actions. Totten v.
Parker, 428 S.W.2d 231, 238 (Ky. 1967)(“Legislature has the plenary power to
declare the public policy . . . that certain beneficiaries living at the time of the
death of the one wrongfully killed shall share the recovery.”). As a result of this
public policy decision, regardless of fault, so long as the spouse or children survive
the deceased, the parents will not be able to recover damages for wrongful death
under KRS 411.130.
The estate also argues that KRS 411.130 as applied, violates the
provisions of §241, §14, and §54 of the Kentucky Constitution. Under KRS
418.075(1) and (2), and Kentucky Rule of Civil Procedure 76.03(5), challenges to
the constitutional validity of a statute require that the Attorney General be given
notice by serving that office with a copy of the petition, a prehearing statement,
and a copy of any “pleading, paper, or other documents which initiate the appeal in
the appellate forum” before the filing of the appellant’s brief.
We have examined the record and find no indication that notice was
sent to the Attorney General regarding this constitutional challenge. Where a party
fails to make the required service on the Attorney General, any issues regarding the
constitutionality of a statute or ordinance are not properly before the Court of
Appeals and therefore are not subject to review. Popplewell’s Alligator Dock No.
1, Inc. v. Revenue Cabinet, 133 S.W.3d 456, 466 (Ky. 2004). We therefore are
unable to consider the merits of that argument.
As the lower court noted, the estate’s claim against Grange for bad
faith was predicated upon an obligation to pay. The trial court held that because
“there is no cause of action against the Defendant, Sarah Holloway, then there can
be no cause of action against the insurance company for failure to pay the claim.”
For the foregoing reasons, we affirm the summary judgments entered
by the Graves Circuit Court in favor of Sarah Holloway and Grange Mutual
BRIEFS FOR APPELLANT:
Jeffery P. Alford
Theodore J. Hampson
BRIEF FOR APPELLEE SARAH
Serieta G. Jaggers
BRIEF FOR APPELLEE GRANGE
MUTUAL CASUALTY COMPANY:
L. Lansden King