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[U} Troxle v. Jones2/28/2003
AFFIRMING
Marlene Troxle, in her capacity as guardian and next friend of Ashley French, appeals the judgment of the Jefferson Circuit Court dismissing Ashley's claim against the estate of her father, John M. French (French), and French's insurer, Kentucky Farm Bureau Mutual Insurance Company (Farm Bureau), pursuant to CR 12.02(f). We affirm.
The sole issue raised in this appeal is whether a minor child has a cause of action against her father's estate for her loss of consortium with him when he died in an accident as a result of his own negligent conduct. The facts pertaining to this issue are not in dispute. John French was fatally injured on March 11, 1999, when the automobile he was operating ran into the rear of a tractor-trailer on Interstate 64. He was survived by his minor child, Ashley. At the time of the accident, French was insured by Farm Bureau.
On March 8, 2001, Troxle filed her complaint alleging that Ashley suffered injury in the form of the loss of consortium, an injury which was"directly and proximately caused by the negligence of John M. French." In addition to a judgment against French's estate, she sought a declaratory judgment that she was entitled to collect any such judgment under the two policies issued to French by Farm Bureau. Both defendants moved to dismiss the action, arguing that a first-party claim for loss of consortium has not been recognized in Kentucky or in any other jurisdiction.
On January 22, 2001, the trial court entered its opinion and order dismissing the complaint. In ruling that Troxle did not have a viable claim, the trial court concluded as follows:
Kentucky law recognizes a cause of action for a child's loss of a parent. Guiliani v. Guiler, Ky., 951 SW 2d 318 (1997). However, the Kentucky Court of Appeals has ruled unequivocally that a loss-of-parental-consortium claim is dependent upon the ability of the claimant to bring an action for wrongful death. Lambert v. Franklin Real Estate Company, Ky.App., 37 SW 3d 770 (2000). There, the Court specifically stated that:
In summary, based upon the context of Guiliani, its language, and the absence of a direct holding that the loss of parental consortium is available beyond wrongful death cases, Guiliani is best read as providing a cause of action to a child only in those cases where there is likewise an action for the wrongful death of the parent (emphasis added). Id.,p.780
All agree that Ashley cannot bring an action for the wrongful death of her father.
In her appeal, Troxle contends that the trial court erred in restricting a child's claim for loss of parental consortium (first recognized in Guiliani, supra) to those situations where there is the potential for a viable action against a third party for the wrongful death of the parent. She relies on the Court's holding that a"child's damages are separate and distinct from the parent's injury ." Guiliani, at 322. Troxle argues that Guiliani should be interpreted more expansively as authorizing a claim by a child against her parent's estate when that parent has essentially breached his duty of care to her by acting negligently and thereby depriving her of his ongoing presence and ability to nurture her:
An injury is an injury. Guiliani unequivocally defines what happened to Ashley as an injury. Once so defined in terms of injury and a viable cause of action, the law does not differentiate based upon the identity of the tortfeasor. [Ashley] is entitled to compensation from the person that caused it.
...
After Guiliani, no one can dispute that a child has been injured when she loses a parent. This is exactly what John Fr
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