Combs v. Comair (556 F. Supp. 2d 665, 2008)

OPINION AND ORDER

KARL S. FORESTER, Senior District Judge.

This matter is before the Court on the motions of Comair, Inc., et al. (“Comair”) [DE # 539] and Bombardier, Inc. (“Bombardier”) [DE #736] pursuant to Rule 12(b)(6) to dismiss claims by various Plaintiffs for loss of consortium, pre-impact fear, and hedonic and loss of enjoyment of life damages as a matter of law. Having been fully briefed, these motions are ripe for review.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Comair and Bombardier move to dismiss certain of Plaintiffs’ damage claims on the ground that they are not authorized by Kentucky law. Plaintiffs generally respond that Kentucky law “is either unsettled or antiquated” [DE # 1073, p. 4], “is largely judge-made and is still expanding” [Id., p. 5], and that Kentucky courts would recognize such damage claims today. Many parallels are drawn between the current posture of Kentucky law on these issues and the prior posture of Kentucky law just before the Supreme Court of Kentucky changed the common law to bring it up to date with other jurisdictions and recognize new claims such as a child’s claim for loss of consortium. [See, e.g., DE # 1190, pp. 4-7]. Accordingly, Plaintiffs ask this Court to predict that the Supreme Court of Kentucky would update the common law and recognize these damages claims if the facts were before that court today. Alternatively, Plaintiffs ask this Court to certify the law to the Supreme Court of Kentucky

II. ANALYSIS

A. Standards

Under the new standard for motions to dismiss, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, — U.S.-,-, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007), abrogating Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). “All factual allegations are deemed true and any ambiguities must be resolved in plaintiffs favor.” Persian Galleries, Inc. v. Transcontinental Ins. Co., 38 F.3d 253, 258 (6th Cir.1994). A district court weighing a motion to dismiss asks “not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims.” Twom-bly, 127 S.Ct. at 1969 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

When interpreting or predicting state law, the Sixth Circuit urges caution. “Where a state’s highest court has spoken to an issue, we are bound by that decision unless we are convinced that the high court would overrule it if confronted with facts similar to those before us.” Ellis ex rel. Pendergrass v. Cleveland Mun. School Dist., 455 F.3d 690, 697 (6th Cir.2006). “We cannot allow a propensity to speculate as to yet unarticulated law to allow us to indulge our own predisposition.” Id. In Goranson v. Kloeb, 308 F.2d 655 (6th Cir.1962), the court said: “Until the [state] courts have spoken on the subject, we must follow the law as it is. We should not attempt to make new law for the state in conflict with its existing decisions.” Id. at 656-57.

To the extent a state law question is undecided, a federal court “must make ‘the best prediction, even in the absence of direct state precedent, of what the Kentucky Supreme Court would do if it were confronted with [the] question.’ ” Combs v. International Ins. Co., 354 F.3d 568, 577 (6th Cir.2004) (quoting Welsh v. United States, 844 F.2d 1239, 1245 (6th Cir.1988)). “When given a choice between an interpretation of [state] law which reasonably restricts liability, and one which greatly expands liability, we should choose the narrower and more reasonable path.” Id. (quoting Todd v. Societe Bic, S.A., 21 F.3d 1402 1412 (7th Cir.1994)). Federal courts 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 innovating theories____” Id. at 578 (quoting Dayton v. Peck, Stow & Wilcox Co. (Pexto), 739 F.2d 690, 694 (1st Cir.1984)).

B. Claim for Loss of Consortium After Spouse’s Death

Comair moves to dismiss claims of loss of spousal consortium on the ground that Clark v. Hauck Mfg. Co., 910 S.W.2d 247, 249 (Ky.1995) held a “claim for loss of consortium is viable only for the period of time between the date of injury and the date of death. It does not reach beyond.” [DE # 539, p. 3; DE # 1174, p. 4]. Comair further relies on Brooks v. Burkeen, 549 S.W.2d 91 (Ky.1977) which denied a claim for loss of spousal consortium when the spouse died instantly at work. Similar claims were also rejected in Loew v. Allen, 419 S.W.2d 734, 737 (Ky.1967) (“An action for the loss of consortium is ... limited to compensation for the loss which accrued to the husband from the date of the injuries to the date of death or recovery of the wife”); Everley v. Wright, 872 S.W.2d 95, 96 (Ky.Ct.App.1993) (claim for loss of consortium dismissed because husband died two hours after surgery); and Lane v. Deere and Co., 2003 WL 1923518 (Ky.Ct.App.2003) (spouse died within a few minutes of being struck by a tree limb).

Plaintiffs respond that K.R.S. § 411.145 expressly authorizes claims for loss of consortium and does not prohibit post-death damages. They argue that the law of consortium is largely judge made and is still expanding, as evidenced by the recognition of a claim for loss of parental consortium in Giuliani v. Guiler, 951 S.W.2d 318 (Ky.1997). [DE #1061, pp.