KyKurmudgeon

FRANKFORT — Call it vindication for the surviving spouses of the Comair Flight 5191 crash, mining disasters and other accidents who came to the Capitol in 2007 seeking to right a legal wrong, only to be rudely, insensitively, insultingly rebuffed by the Republican-controlled state Senate.

Call it an affirmation of those survivors’ recognition that Kentucky case law regarding loss of spousal companionship (consortium in legal language) in wrongful death cases turned reason on its head.

Most of all, call it justice at last. Not so much for those survivors who passionately and eloquently argued their case in the Capitol halls more than two years ago. (For instance, only one suit stemming from the Flight 5191 crash remains unsettled.) But justice for Kentucky’s future survivors whose lives are shattered when their wives and husbands die as the result of “a negligent or wrongful act” of a third party.

Since 1970, KRS 411:145 clearly has stated that surviving spouses can seek damages for loss of companionship in these cases. But Kentucky’s prevailing case law has disagreed, nonsensically allowing loss of companionship claims when a spouse is injured and survives but denying such claims when a spouse suffers a wrongful death.

Thursday, the Kentucky Supreme Court corrected this injustice by ruling that the statute means exactly what it says.

“The courts have been exhorted that ‘common sense must not be a stranger in the house of the law,’” Justice Mary Noble wrote in the unanimous opinion. ” … It defies common sense to put a value on such losses while a spouse is lying incapacitated, but to say the loss is worthless after death.”

Later in the opinion, Noble posed this question: “Can it reasonably be said that one whose spouse survives suffers more loss of consortium than one whose spouse dies?”

The answer, of course, is no, a resounding no. If anything, the loss is greater in instances of death.

As the opinion pointed out, the flawed logic of the prevailing case law — which traced its origins back to English common law — could cause people to make sure the victims of their negligent or wrongful acts do not survive “as only by instantly killing them can the (responsible party) be guaranteed to owe no loss of consortium damages. While this logically follows the common law rule, it is obviously absurd.”

Unaddressed in the opinion is an opposite absurdity that is of just as much concern for people who, like me, desperately want the plug pulled as soon as it’s evident they have slipped into a permanent vegetative state. Prior to Thursday, Kentucky law encouraged people to keep vegetative spouses alive if it meant they could collect loss of consortium damages, a prospect I find abhorrent.

While justice in this instance was delivered to Kentuckians through the wise ruling of a unanimous Supreme Court, I firmly believe credit also goes to those surviving spouses — of Flight 5191, of mine disasters, of other accidents — who brought their crusade to the halls of the Capitol back in 2007.

They brought the injustice of prior case law to the attention of the public. They started the conversation about its absurd consequences, a conversation that reached a proper conclusion Thursday in a case unrelated to any of their losses.

They struck me as heroes then. They still do.

Sunday’s column:

Three years ago this past Thursday, Comair Flight 5191 tried to take off from the wrong runway at Blue Grass Airport — a tragic error that resulted in 49 fatalities.

Survivors of some Flight 5191 victims chose the third anniversary of the crash to issue a “Lessons From 5191” open letter to the Federal Aviation Administration, the National Transportation Advisory Board and others.

Included in the letter were several suggested safety initiatives, which the writers acknowledged “are not novel proposals. Indeed, many were known to the aviation industry prior to the crash of Comair Flight 5191. … Had the warnings been heeded and the recommendations implemented, the crash of Comair Flight 5191 likely would not have occurred.”

The third anniversary of the Flight 5191 crash also prompted additional discussion of a permanent memorial to its victims, a memorial organizers hope to have in place in the Arboretum on Alumni Drive by the fourth anniversary of the tragedy.

Both the “Lessons” letter and discussion of a memorial were apt ways to commemorate Flight 5191. But an opportunity for an even more meaningful commemoration was missed Thursday — by the seven justices of the Kentucky Supreme Court.

In addition to exposing some flight safety issues, the Flight 5191 crash also brought a nonsensical defect in Kentucky law into the spotlight.

As spouses of the crash victims learned, prevailing case law in this state does not allow survivors to claim damages for loss of spousal companionship (“consortium” in legal terms) in wrongful death cases.

Parents can sue for loss of companionship when the victim is their child. Children can seek damages when the victim is their parent. And a spouse can claim loss of companionship when a partner is injured but survives.

But even though KRS 411.145 says in part, “Either a wife or husband may recover damages against a third person for loss of consortium, resulting from a negligent or wrongful act of such third person,” Kentucky courts have ruled just the opposite in regard to cases of wrongful death.

In 2007, some spouses of Flight 5191 victims asked the General Assembly in essence to tell the courts KRS 411.145 means what it says regarding spousal consortium claims. The legislation they proposed passed the House by a 93-7 vote.

But their quest for fairness and justice was ignored by Senate Republicans, whose idea of tort reform tends toward protecting responsible parties against the claims of victims.

As a result, the flawed prevailing case law remains in effect.

However, just over five months ago, the Supreme Court heard oral arguments in a case that brought the issue of spousal consortium in instances of wrongful death before it again. A case that gives the court an opportunity to overturn the questionable rulings of the past and bring Kentucky law into compliance with that of the more than 40 states where damages for loss of spousal consortium are allowed.

No one can predict how the Supreme Court will rule in a given case, even after listening to the justices’ questions during oral arguments. And it is entirely possible that the court will uphold the past decisions in this area of the law.

But if a majority of the justices are headed toward recognizing spousal consortium, how fitting it would have been if the decision had come on Thursday, when the court’s chosen date for issuing August rulings coincided with the third anniversary of the tragedy that helped educate Kentuckians about this inequity in prevailing case law.

Sorry for the delay in posting Wednesday’s column. Thought I had set it to post automatically Wednesday morning. Guess not. But here it is now:

FRANKFORT - In and out of special session in five days. Two weeks minimum, maybe more.

Slots Bill, a veteran campaigner who has trained often for the Legislative Derby but has yet to leave the gate, doesn’t have the speed to sprint through the House. Slots Bill will breeze through the House with speed to spare, allowing some of his secret admirers to avoid risking a bet on him.

If Slots Bill gets through the House, he will fade fast in the Senate stretch. Slots Bill could have an easier time in the Senate than in the House.

As these contradictory comments suggest, if you can imagine it, it’s probably been uttered in the halls of state power the past couple of days. And generally speaking, you take it all with a healthy helping of that staple one company peddles with the aid of a girl, her umbrella and the slogan “When it rains, it pours.”

All except this:

If Gov. Steve Beshear, House Speaker Greg Stumbo and the horse industry (Ol’ Slots’ current trainer, jockey and owners) seriously want him to win this race, they better have him leading, or at least in a dead heat with Budget Reduction when the field makes the turn for home. Let Budget Reduction round the turn first, and the Senate might declare him a winner, distribute the purse and send its folks home before Slots appears before them.

If I were training or riding Slots, I would want him deep into the stretch before Budget Reduction enters it. That way, a Senate that acts with warp speed on a revised $9 billion General Fund budget would look a tad hypocritical if it tried to use lack of time as an excuse for not dealing with Ol’ Slots.

But if you see Slots Bill trailing Budget Reduction in the race to the Senate, you can draw one of two conclusions. His camp either has lost its will to win, or it has lost its collective horse sense.

Either would be unfortunate because the stars seem to align themselves better for Slots Bill this year than at any time in the past.

Recent events have clarified the gravity of the crisis facing Kentucky’s racing industry due to the competitive advantage racino tracks have in offering purses and breeding incentives. Those same events - shortened fields, canceled races and race dates - have built momentum for giving Kentucky tracks the tools to compete.

Attorney General Jack Conway’s opinion, issued Monday, concluding that enacting expanded gambling statutorily is constitutional improved Slots Bill’s chances a bit.

Permit me an aside here. To be honest, the longer Conway delayed releasing this opinion, the more I wondered if his U.S. Senate aspirations might have him looking for a way to dodge the issue. My bad.

His office produced a sound, reasoned opinion that took a strong stand on a controversial matter. And although he didn’t write the opinion himself, he will take the political hit for it.

He didn’t have to do so. He could have used his father’s involvement in racing and membership on the Kentucky Horse Racing Commission as an excuse to claim a conflict of interest and avoid the issue completely.

Instead, he sought advice from the Executive Branch Ethics Commission staff. And when John Steffen, the commission’s executive director, told him in a letter that any potential for conflict of interest was not “substantial or material,” Conway stepped up and did his job, despite the potential consequences for his Senate campaign. That moved him up the stature scale a bit.

Now, back to Slots Bill’s bid to win the Legislative Derby.

I thought Beshear missed an excellent opportunity to stress the urgency of the horse industry’s crisis during his address to a joint session of the General Assembly Monday night.

An alarm going off somewhere in the Capitol caused Beshear to hesitate a few moments before beginning his speech. What a great time to say, “Hear that. It’s a call to action in this emergency.”

Attorney General Jack Conway issued an opinion Monday morning that said the General Assembly has the authority to approve racetrack slots statutorily. Bottom line of the opinion:

“In sum, it is the opinion of the attorney general that the General Assembly may authorize the Kentucky Lottery Corporation to operate video lottery terminals at designated horse racing tracks under Ky. Const. (Section) 226(1) without further amendment to the Kentucky Constitution.”

When you find yourself in a hole, it’s time to stop digging. That’s a bit of folk wisdom officials in McCreary and Pulaski counties should heed now that they know just how deep a hole they have dug themselves into with their decade-long legal fight over posting the Ten Commandments in their courthouses.

This week, U.S. District Judge Jennifer B. Coffman ordered the counties to pay the American Civil Liberties Union and the citizens it represents in the case more than $400,000 in legal fees and expenses. In response to the counties’ argument that the bill was too high, Coffman said the defendants “cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiffs in response.”

Officials in the two southern Kentucky counties started digging themselves into this huge hold back in 1999, when their postings of the commandments prompted the ACLU to file suit on behalf of residents in each county. Coffman ruled the displays unconstitutional and ordered them removed. The counties appealed all the way to the U.S. Supreme Court, where they lost.

That was in 2005, and the digging should have ended then. But the two counties launched another appeal that is ongoing. So, the tab they will owe the ACLU if they lose their appeal keeps mounting.

With what would seem to be a shaky case at best, considering the earlier Supreme Court ruling, and with a tanked economy cutting into revenues at all levels of government, common sense says it’s time for the two counties to stop digging and start climbing out of the hole they’re in.