Kentucky

The Kentucky Court of Appeals rendered a decision (not for publication) in the tort area on 2/8/2008 which you don't see too often.  It came within the family law context of a divorce, but it addresses the general rule that a claim before the marriage is not marital property and the pain and suffering component of a claim accruing during the marriage is also not marital property but that portion of the settlement/verdict attributable to income is marital property.  Here, the COA determined the claim of the husband was not for wage or income.

FITZGERALD V. HAMMOCK
TORTS:  Personal injury claim (workers compensation claim) and spousal property
2006-CA-002347
NOT PUBLISHED: AFFIRMING
PANEL: VANMETER PRESIDING JUDGE; NICKELL AND LAMERT CONCUR
COUNTY:  WARREN
DATE RENDERED: 2/08/2008

Debra Lynn Fitzgerald appeals from an order denying her post-dissolution motion to divide as marital property certain money her ex-husband, James Charles Hammock, received in settlement of a work-related lawsuit filed during the marriage.

The DRC opined that under Weakley v. Weakley, 731 S.W.2d 243 (Ky.1987), these damages were nonmarital property. The circuit court approved the DRC's recommendations after reviewing the complaint, summary judgment order, and confidential settlement agreement in James's claim, as well as Debra's exceptions to the DRC's report and James's response thereto.  COA affirmed trial court.

In Weakley, 731 S.W.2d at 245, the Kentucky Supreme Court held that when a spouse suffers a personal injury before his marriage, ?the entire compensation received therefor is nonmarital ... regardless of when the judgment or settlement is obtained or whether the recovery is for the loss of wages, replacement of earning capacity, or pain and suffering.? On the other hand, if a spouse suffers a personal injury during the marriage, the portion of his recovery for loss of earnings and permanent impairment of his ability to earn money representing the years the parties were married is marital property. Id. at 244. By contrast, the portion of his recovery for the same damages representing the remaining years of his life expectancy following the dissolution of the marriage is nonmarital. Id. Also nonmarital is any portion of the award representing damages for pain and suffering. Id. at 245

Debra argues, however, that Reeves v. Reeves, 753 S.W.2d 301 (Ky.App.1988), rather than Weakley, is dispositive of the matter now before us. In Reeves, the husband was injured at work during the marriage. He settled his claim under the Jones Act for $175,000. After payment of medical and legal expenses, $107,500 remained. Although the husband voluntarily paid the wife $7,500, the trial court awarded the wife 25% of the $107,500. On appeal, this court held that Weakley was inapplicable to the matter because it was unknown ?what portion of [the husband's] award was to be considered as payment for pain and suffering.? Reeves, 753 S.W.2d at 301. This court therefore held that the husband's award was marital property under KRS 403.190. FN3

Here, James maintains on appeal that he ?did not lose any earnings or income as a result of his asbestos exposure during his employment. His only damages in the sole remaining claim of outrage would have been for pain and suffering.? FN4 Debra neither disputes these claims nor provides any evidence that marital funds were spent on medical monitoring, decontamination, or the like. Accordingly, the trial court did not err by finding that James met his burden of proving that his settlement was for pain and suffering and therefore constituted nonmarital property which was not subject to division.

Michael Stevens