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In re Birkenshaw12/22/1994
CERTIFICATION OF THE LAW BY JUSTICE STUMBO
The United States Court of Appeals for the Sixth Circuit has requested certification pursuant to CR 76.37 of two (2) questions of law. The operative facts as set forth by the Sixth Circuit are as follows:
On May 16, 1989, Arthur Birkenshaw was driving southbound on an interstate highway in Campbell County, Kentucky. An automobile owned by defendant, The Union Light, Heat and Power Company, and operated by one of its employees, crossed the center line of the highway, striking and fatally injuring Birkenshaw.
Birkenshaw's widow, Sandra Birkenshaw, who is also the administratrix of decedent's estate, subsequently brought an action for damages under the Kentucky Wrongful Death Statute, KRS 411.130, in the United States District Court for the Eastern District of Kentucky. Jurisdiction was premised on diversity of citizenship.
Defendant, Union Light, Heat and Power Company, conceded liability. The parties then stipulated to a jury trial, solely on the issue of damages.
Birkenshaw was killed in the course of his employment for an Ohio corporation. By operation of the Ohio workers' compensation statute, his widow is entitled to a benefit of $390 per week until she remarries and for two years thereafter. Under Ohio law, as it existed at the time of the death, there is no requirement that the state compensation fund be reimbursed in the event of a damage recovery by the widow in a wrongful death action.
Prior to trial, Birkenshaw moved in limine to exclude evidence that she was eligible for, and had been receiving, workers' compensation payments. The district Judge denied this motion, relying upon KRS 411.188(3), which reads in pertinent part as follows:
Collateral source payments, except life insurance, the value of any premiums paid by or on behalf of the plaintiff for same, and known subrogation rights shall be an admissible fact in any civil trial.
The district court determined that the benefits afforded plaintiff fell within the purview of the statute.
At trial, Birkenshaw offered evidence of projected earnings that could have supported a judgment in excess of $800,000. Over objection, the Defendant was allowed to present evidence that, based upon her life expectancy, she might receive $474,552 in workers' compensation benefits. This is the collateral source testimony that is in controversy. The jury ultimately returned a verdict of $373,787.93.
Birkenshaw appealed, challenging the constitutionality of KRS 411.188(3) as well as challenging whether the workers' compensation payments at issue qualified as collateral source payments under the applicable Kentucky statute.
On appeal, a panel of the United States Court of Appeals for the Sixth Circuit concluded that the Kentucky statute was constitutional and that the payments in question constituted payments from a collateral source. However, the panel went on to hold that in a diversity action a federal court was not bound to follow the Kentucky statute, and that under the Federal Rules of Evidence, these collateral source payments should have been excluded as not relevant.
A petition for rehearing en banc was filed by the defendant and was granted. Because the Kentucky statute does not define collateral source," and there are no Kentucky appellate decisions construing the term within the context of a wrongful death action brought under Kentucky law, the request for certification of law was made.
The specific questions presented to this Court are as follows:
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