A federal judge has ruled that the widow of one of the Comair Flight 5191 passengers can sue for loss of companionship, one of the first such claims to go forward in Kentucky.
On Friday, U.S. District Court Judge Karl Forester ruled that Jaime Hebert, 40, of Louisiana could re-instate a claim of loss of consortium claim against Comair. Hebert is the widow of Bryan Keith Woodward, who was 39 when he died in the crash. Forester's order comes on the heels of a landmark state Supreme Court decision that reversed the state's case law regarding loss of consortium.
The state's highest court ruled on Oct. 1 that a spouse can sue for loss of physical and emotional companionship — called loss of consortium — after the spouse's death. The issue gained traction after the August 2006 crash of Comair Flight 5191 at Blue Grass Airport.
Previously under Kentucky law, a spouse could sue for loss of consortium if his or her spouse was incapacitated, but not if they died. Children could also sue for loss of consortium when a parent died.
Hebert is the only family member of the 47 passengers killed in the crash who has not settled with the airline company. Because of that, she is one of the few family members of Comair passengers who may benefit from the Oct. 1 ruling.
Hebert's attorney has previously said she wants to go to trial against Comair because she wants the airline to publicly take the blame for the crash.
David Rapoport, a Chicago lawyer who represents Hebert, said a jury trial on damages is set to begin Dec. 1. A second trial on punitive damages will begin at a later date that hasn't been specified.
The vast majority of the Comair flight 5191 lawsuits were settled in August 2008, shortly before they were scheduled to go to trial. The settlements were confidential, but none of them included punitive damages, lawyers for the plaintiffs have said.
Rapoport said the amount for the loss of consortium claim will be determined by a jury. "The jury will be allowed to consider the severity and duration of the loss," Rapoport said.
Forester had ruled Jan. 3, 2008, that spouses of Comair 5191 passengers could not sue for loss of consortium because Kentucky law did not allow it. But in a unanimous decision on Oct. 1, the State Supreme Court ruled that an Ohio County man could make that claim in the death of his spouse.
That ruling is a "clear and unequivocal declaration by Kentucky's highest court that the statute controlling plaintiff Jamie Hebert's loss of consortium claim allows her to recover compensatory damages," Forester wrote in a two-page order.
Rapoport said this week that it's likely that Hebert's will be the first loss of consortium claim to be tried in Kentucky.
Comair 5191 crashed Aug. 27, 2006, after taking off from the wrong runway at Lexington's airport. The general aviation strip was too short for commercial jets. The National Transportation Safety Board said the pilots' failure to notice that they were on the wrong runway was the primary cause of the accident.
Woodward and Hebert lived near Lafayette, La., where he was an electrician who often worked on offshore oil rigs. He was on his way to Atlanta for a connecting flight when the plane crashed.
In addition to his wife, Woodward was survived by two daughters, who were 15 and 11 at the time of the crash.