Episode 9: Louisville attorneys Rob Mattingly and Kevin C. Burke explore the issue of whether social security disability benefits, or other entitlement-type programs, can be recovered in a wrongful death claim. Lauren received this question from the listeners. Rob and Kevin will provide insights, based on Kentucky law, in today’s episode.
Editor’s Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast.
TODAY’S LEGAL QUESTION:
Are social security benefits recoverable in a wrongful death claim?
Before answering the question, context is important. Let’s establish a foundation for the discussion.
Destruction of Power to Labor and Earn
Kevin begins by noting that wrongful death in Kentucky isn’t just based on case law and/or statute. It’s actually provided for in Kentucky’s Constitution. Section 241 states, “Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death.”
As a result, we now have KRS 411.130. Included in this is the provision for punitive damages if the act was willful or involved gross negligence.
Aull v. Houston
This is a 2010 Kentucky court of appeals case. It involved the death of a 5-year old child. The child was born with a severely disabling disease. The child obviously had no earning capacity. The original complaint involved a medical malpractice action involving immunizations that brought about the death of the child.
The child had been receiving supplemental security income (SSI) benefits. The question was whether those SSI benefits were recoverable as part of the wrongful death action.
In circuit court, the parties briefed it for partial, summary judgement. The defendant filed the motion solely focusing on the child’s destruction of the child’s power to labor and earn money. The plaintiff’s estate admitted there was no way the child would earn money through labor. The court ruled social security benefits, under the facts of this case, were not recoverable in the wrongful death action.
The parties asked the circuit court to certify the ruling as final and appealable with no just reason for delay, under civil rule 54.02. The court certified it. Remember, this only resolved one element of damages in the case.
Kevin notes the case went to the court of appeals as a case of first impression for Kentucky courts, but not in federal district court applying Kentucky law.
Lauren comments that the court cites Meinhart v. Campbell. This was a 2009 federal district court case involving a wrongful death. The deceased was receiving social security disability insurance benefits (SSDI), prior to the death. The court was dealing with a case of first impression, in this instance. The court held the SSDI benefits payments could include the disability benefits in determining the wrongful death damages. The decision was likened to other cases wherein a pension could be recovered in wrongful death action.
The Kentucky appellate court in Aull v. Houston recognized that federal district court opinions have only persuasive value in Kentucky appellate cases. It viewed social security benefits are not an element of the destruction of the power to labor and earn money. Therefore, “social security benefits” can’t be added to the damages.
Rob comments that Aull never distinguished between the different types of social security benefits.
Savage v. Co-Part
This is a 2023 Kentucky Supreme Court case. Rob notes the procedure in the case is difficult of follow, but it’s relevant for the discuss of this episode’ focus on social security benefits. It did some very important things for Kentucky families. Rob and Kevin specifically recognize the work done by the Richard Breen Law Offices, in Louisville, for the work they did on this case. They also recognize Calloway County attorney Jeff Roberts who wrote the amicus brief on this specific issue.
Savage v. Co-Part is a wrongful death case involving a car wreck. Mr. Savage was receiving social security disability insurance payments (SSDI). The Kentucky court of appeals questioned Aull v. Houston. Did the opinion in that case actually extend to SSDI? The court did an analysis and essentially flagged it for the Kentucky Supreme Court. Once it was accepted for Discretionary Review, the Kentucky Justice Association urged Jeff Roberts to file an amicus brief.
The Kentucky Supreme Court examined the reasoning behind the court of appeals’ decision in Aull and determines that the reasoning does not apply to social security disability benefits. The Court found that SSDI is not an entitlement program, unlike supplemental security income (SSI).
In fact, the court of appeals opinion in Aull cited 2 cases, which were actually workers’ compensation cases. According to the court these cases supported the court’s decision as to why social security benefits were not available to be included in the damages.
The Kentucky Supreme Court, in Savage, finds those 2 cases are distinguishable. The availability of the benefits were different. Kentucky workers’ comp benefits are completely different from a wrongful death claim under KRS 411.130. In essence, the Court deconstructed the foundation in Aull.
The Court held that social security disability insurance benefits (SSDI) can be used in calculating damages. However, supplemental security income cannot be used.
SSDI is an earned income, thus it’s related to the destruction of the power to labor and earn; SSI is not.
Rob and Kevin note that Savage doesn’t actually overturn Aull. Instead, the Court abrogates Aull, regarding SSDI benefits serving as a substitute for earned income in the case of retirement or in disability. It goes onto agree that SSI benefits are not to be included in damages calculations.
That’s a wrap on today’s discussion. We hope you found the discussion insightful. As always, we encourage you to share this episode with your colleagues.
If you’d like the case notes, please sent us an email request and we’ll be happy to email you the file including the cases, rules, etc.
You can follow our podcast on a variety of platforms including, Spotify, iHeartRadio, Amazon Music, Audible, Apple Podcasts and many more. Thanks for taking the time to listen.
For more information about the Law Offices of DeCamillis and Mattingly, PLLC
Address: 138 S. Third Street, Louisville, KY 40202 (across from The Old Spaghetti Factory)
Phone: (502) 589-2822
Website: DeCamillisMattingly.com
To Contact Kevin Burke:
Website: BurkeNeal.com
Phone: (502) 709-9975
The Kentucky Bar Association Requires Us to State “This is an advertisement.”
