United States District Court, W.D. Kentucky, Bowling Green Division
CHAD OWENS and KRISTI OWENS, Individually and Natural Guardians of Z.O. and R.O. PLAINTIFF
GLOBAL EQUIPMENT COMPANY, INC.; and HU-LIFT EQUIPMENT USA, INC. DEFENDANTS
MEMORANDUM OPINION AND ORDER
N. STIVERS, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants' Motions to
Dismiss Count V (DN 6, 8), which is ripe for adjudication.
For the reasons stated below, the motion is
STATEMENT OF THE CASE AND CLAIM
action arises from a non-fatal workplace injury suffered by
Plaintiff Chad Owens (“Chad”). Defendants seek to
dismiss Plaintiffs' loss of parental consortium claim
asserted by Chad and Plaintiff Kristie Owens
(“Kristie”), as natural guardians of minors R.O.
October 17, 2016, Chad was acting in the course and scope of
his employment at Sumitomo Electric Wiring Inc. when a 7, 000
lb. mold injection machine fell on his hands, resulting in
crush injuries and amputation of fingers on both hands. On
October 13, 2017, Plaintiffs filed the Complaint against
Defendants in Allen Circuit Court asserting that Hu-Lift
Equipment, Inc. (“Hu-Lift”) and Global Equipment
Co. Inc. were negligent in distributing the Hu-Lift jacks
supporting the machine because the jacks were defective and
unsafe for their intended use. Additionally, Kristie asserts
a claim for loss of spousal consortium due to Chad's
injuries. Plaintiffs are also asserting loss of parental
consortium claims as guardians of their minor children, R.O.
November 8, 2017, Hu-Lift removed this action from the Allen
Circuit Court to this Court with the consent of the other
Defendants. Thereafter, Defendants moved to dismiss the
minors' loss of consortium claims because such claims are
not recognized under Kentucky law.
Court has subject matter jurisdiction over this action under
28 U.S.C. § 1332 as there is complete diversity between
the parties and the amount in controversy exceeds the sum of
STANDARD OF REVIEW
ruling on a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6), courts are required “to construe the
complaint in the light most favorable to the plaintiff,
accept all of the complaint's factual allegations as
true, and determine whether the plaintiff undoubtedly can
prove no set of facts in support of the claims that would
entitle relief.” Grindstaff v. Green, 133 F.3d
416, 421 (6th Cir.1998).
diversity cases such as the present action, this Court must
apply the law of Kentucky's highest court. Erie R.R.
Co. v. Thompkins, 304 U.S. 64, 77-79 (1938). In this
regard, Kentucky law is clear that loss of parental
consortium claims are only recoverable in conjunction with
wrongful death actions. In Lambert v. Franklin Real
Estate Co., 37 S.W.3d 770 (Ky. App. 2000), the Kentucky
Court of Appeals addressed, as a matter of first impression,
whether children can recover for loss of parental consortium
where the parent is severely injured but not fatally.
Id. at 780. The court held that loss of parental
consortium is only recoverable in wrongful death actions.
Id. The court reasoned that there is no legal
distinction between a parent's loss of consortium claim
for a child and a child's loss of consortium for a
parent. Because KRS 411.135 limits a parent's loss of
consortium claim for a child to cases of wrongful death of
the child, the court held it follows that “the loss of
parental consortium should likewise be limited to cases
involving the wrongful death of the parent.”
the Plaintiffs acknowledge that Kentucky law currently bars
their loss of parental consortium claim, they contend that
the facts in this case merit a re-evaluation of the law in
light of the Kentucky Supreme Court's decision in
Martin v. Ohio Hospital Corp., 295 S.W.3d 104 (Ky.
2009). Martin, however, involved a claim for spousal
consortium pursuant to a Kentucky statute. See Id.
contrast, Plaintiffs request that this Court modify state
common law to recognize a loss of parental consortium claim
under the facts presented in the case sub judice. It
is not the function of this Court, however, to modify
Kentucky common law. “As the First Circuit explained,
federal courts sitting in a diversity case are in ‘a
particularly poor position . . . to endorse [a] fundamental
policy innovation. . . . Absent some authoritative signal
from the legislature or the courts of [the state], we see no
basis for even considering the pros and cons of innovative
theories. . . .”' Combs v. Int'l Ins.
Co., 354 F.3d 568, 577-78 (6th Cir. 2004) (quoting
Dayton v. Peck, Stow & Wilcox Co., 739 F.2d 690,
694 (1st Cir. 1984)). Given Lambert's