               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 05a0497n.06
                            Filed: June 10, 2005

                                          No. 04-5761

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


WANDA L. BOGGESS, Administratrix of the        )
Estate of Chad Boggess, deceased,              )
                                               )
       Plaintiff-Appellee,                     )
                                               )
CHASTITY BOGGESS; JOYCE BOGGESS;               )
THADDEOUS BOGGESS,                             )
                                               )
       Proposed Intervenors-Appellants,        )
                                               )   ON APPEAL FROM THE UNITED
v.                                             )   STATES DISTRICT COURT FOR THE
                                               )   EASTERN DISTRICT OF KENTUCKY
BOB PRICE, Deputy; MATT DANIELS,               )
Deputy; DOUGLAS RAYBOURN; BOB                  )
STEVENS, Jailer, Boyd County, Kentucky;        )
BOYD COUNTY DETENTION CENTER;                  )
BOYD COUNTY, KENTUCKY; ASHLAND                 )
HOSPITAL CORPORATION; MARTY                    )
JOHNSON; BOYD COUNTY EMERGENCY                 )
AMBULANCE SERVICE, INC.,                       )
                                               )
       Defendants-Appellants.




       Before: COLE and SUTTON, Circuit Judges; ZATKOFF, District Judge.*


       SUTTON, Circuit Judge. Chastity, Joyce and Thaddeous Boggess appeal the district court’s

denial of their motion to intervene in Wanda Boggess’s § 1983 and state wrongful death claims,


       *
         The Honorable Lawrence P. Zatkoff, Senior United States District Judge for the Eastern
District of Michigan, sitting by designation.
No. 04-5761
Boggess v. Price

which she filed on behalf of her husband Chad Boggess’s estate against several defendants allegedly

liable for assaulting him while he was being held in the custody of Kentucky authorities.

Concluding that any interest the proposed intervenors may have in the lawsuit will be adequately

represented by the current parties and will not be impeded by continuation of the litigation with the

parties as they now stand, we affirm the district court’s denial of their motion for mandatory

intervention.


                                                   I.


        On March 16, 2002, according to the amended complaint in this case, Chad Boggess was

seriously injured in an altercation with officers at the Boyd County (Kentucky) Detention Center,

where he had been incarcerated for the previous five days. The lawsuit alleges that Emergency

Ambulance Service technicians continued to beat Chad while they transported him to a Kentucky

hospital, where he slipped into a coma and died in April 2002. In January 2003, one of the

defendants, Deputy Bob Price, pleaded guilty to criminal charges stemming from the incident.


        Chad Boggess’s widow, Wanda Boggess, was appointed to administer his estate and, in April

of 2002, filed a lawsuit, individually and as the administratrix of Chad’s estate, against jail officials

and Boyd County, alleging violations of § 1983 and West Virginia’s wrongful death statute, W. Va.

Code § 55-7-6. Initially, the action was filed in the Southern District of West Virginia, where Chad

resided and all of his relatives reside, but that court found venue improper and transferred the case

to the Eastern District of Kentucky. In May 2002, after the venue transfer, Wanda filed an amended



                                                  -2-
No. 04-5761
Boggess v. Price

complaint—which added ambulance and hospital officials as defendants—re-alleging her § 1983

claim, alleging wrongful death under Kentucky’s wrongful death statute, Ky. Rev. Stat. § 411.130,

and abandoning her wrongful death claim under West Virginia law. In the amended complaint,

Wanda sought damages arising from her and her children’s loss of Chad’s “services and society.”

JA 75, 81.


       In February 2004, Chastity Boggess (Chad’s sister), Joyce Boggess (Chad’s mother) and

Thaddeous Boggess (Chad’s father) (the “proposed intervenors”) filed a motion to intervene in the

lawsuit. They contended that Wanda had “made known her hostilities toward any and all claims that

[the proposed intervenors] have as a result of [Chad’s] death . . . and had refused to present an

argument to the legal tribunals regarding any right that Chad’s family may have to recover in this

action.” JA 89.


       Under the Kentucky and West Virginia wrongful death statutes, a wrongful death claim is

brought on behalf of the decedent’s estate by a personal representative. Ky. Rev. Stat. § 411.130(1);

W. Va. Code § 55-7-6(a). Both statutes also include language establishing how to allocate any

awarded damages among family members. When the decedent is survived by a widow and children,

as in this case, Kentucky’s wrongful death statute does not allocate any damages to the decedent’s

siblings or parents; rather, half of the damages goes to the widow and half goes to the children. Ky.

Rev. Stat. § 411.130(2) (“The amount recovered, less funeral expenses and the cost of administration

and costs of recovery including attorney fees, not included in the recovery from the defendant, shall

be for the benefit of and go to the kindred of the deceased in the following order: . . . (b) If the

                                                -3-
No. 04-5761
Boggess v. Price

deceased leaves a widow and children or a husband and children, then one-half . . . to the widow or

husband and the other one-half . . . to the children of the deceased.”). West Virginia’s statute, on

the other hand, potentially includes the decedent’s siblings and parents in the distribution of any

wrongful death damages. W. Va. Code § 55-7-6(b) (“In every such action for wrongful death, the

jury, or in a case tried without a jury, the court, may award such damages as to it may seem fair and

just, and, may direct in what proportions the damages shall be distributed to the surviving spouse

and children, including adopted children and stepchildren, brothers, sisters, parents and any persons

who were financially dependent upon the decedent at the time of his or her death or would otherwise

be equitably entitled to share in such distribution.”) (emphasis added).


       All of the defendants in this case live in Kentucky or are located there. Chad Boggess was

arrested in Kentucky, received his injuries in Kentucky and died in Kentucky. Wanda and the

proposed intervenors all reside in West Virginia, as did Chad, at least until he was jailed in

Kentucky five days before the altercation.


       The district court ruled that because the proposed intervenors would not receive any damages

under Kentucky’s wrongful death statute, they had no interest in the litigation and thus could not

intervene. D. Ct. Op. (May 4, 2004) at 5–6. In considering a subsequently filed motion for

reconsideration, the district court also concluded that under Kentucky’s applicable choice-of-law

rules, Kentucky law, not West Virginia law, applied to the wrongful death claim. D. Ct. Op. (May

24, 2004) at 3–4.




                                                -4-
No. 04-5761
Boggess v. Price

                                                    II.


        Aside from the question whether a motion to intervene was filed on a timely basis (which

is not at issue here), we give de novo review to a district court’s mandatory intervention

determination. Stupak-Thrall v. Glickman, 226 F.3d 467, 471 (6th Cir. 2000). This court applies

a three-part test to determine whether timely motions for mandatory intervention under Rule 24(a)

of the Federal Rules of Civil Procedure should be granted: “(1) does the applicant claim an interest

relating to the property or transaction that is the subject of the action; (2) is the applicant so situated

that disposition of the lawsuit may as a practical matter impair or impede his ability to protect that

interest; and (3) is the applicant’s interest adequately represented by existing parties[?]” Purnell v.

City of Akron, 925 F.2d 941, 945 (6th Cir. 1991); cf. Stupak-Thrall, 226 F.3d at 471 (including

timeliness as an additional requirement, but one which is reviewed for abuse of discretion);

Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997) (same). An applicant must

satisfy all three prongs to intervene. Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989).


        Our decision in Purnell elaborates on the meaning of these three requirements. According

to the complaint in that case, police officers used excessive force against Armstead Land, the injuries

from which caused his death. Land allegedly had fathered some children with Evelyn Campbell and

some children with Barbara Land, his wife. All of the Campbell children sought to intervene in a

lawsuit claiming (1) a violation of Land’s constitutional rights under § 1983 and (2) a wrongful

death under Ohio’s wrongful-death statute, Ohio Rev. Code § 2125.01.




                                                   -5-
No. 04-5761
Boggess v. Price

       As to the § 1983 claim, the court held that the Campbell children’s interest, if any, would not

be impaired by the lawsuit. If the defendants were found liable, the court reasoned, the total

damages awarded would not be based on any deprivation of familial relationships but on the

decedent’s personal losses. Indeed, the claim sought damages “only for a violation of Mr. Land’s

constitutional rights, specifically his first, fourth and fourteenth amendment rights,” Purnell, 925

F.2d at 948, which adhered to Sixth Circuit precedent providing that § 1983 “provides a cause of

action which is personal to the injured party,” id. at 949 n.6.


       As to the Ohio wrongful death claim, the court held that the Campbell children’s potential

interest would be impeded by the litigation and would not be adequately represented. The court

noted that the Ohio wrongful death statute allowed damages for the suffering of the decedent’s

surviving children, among other relatives, including loss of support and the children’s mental

anguish. Id. at 949. Assuming that the Campbell children would be able to prove paternity, the

court held that their interest would be impaired by litigation that resulted in total damages excluding

the Campbell children’s losses:


       Admittedly, if we affirmed the lower court’s denial of intervention, the Campbell
       children may not be entirely without recourse. We recognize that Ohio law normally
       requires the court which appointed the administrator to distribute the proceeds
       recovered in a wrongful death action. . . . Assuming the Campbells eventually proved
       paternity and so notified the administrator, they may be able to intervene in the
       probate court’s distribution of the proceeds recovered in district court. Alternatively,
       the Campbells could successfully sue the administrator for breach of fiduciary duty
       if he had already distributed the proceeds. However, even assuming they are viable,
       such options, for obvious reasons, do not provide adequate protection. If the
       Campbells are not allowed to intervene in district court, the amount of proceeds will
       have been limited to the proof presented by the Land family; yet the proceeds would

                                                 -6-
No. 04-5761
Boggess v. Price

        have to be shared by both the Lands and the Campbells. On the other hand, if the
        administrator has already distributed the proceeds he may not be worth suing.


Id. (citations omitted).


        Turning to the third prong of the test, the court held that the damages issue also meant that

the Campbell children’s interest would not be adequately represented by the current parties:


        [The administrator] argues that the interests of the present representative and the
        proposed intervenor are identical as both would want to obtain a maximum recovery
        for the benefit of the estate. . . . But again, [the administrator] misperceives the
        object of the Campbells’ motion. They wish to sue, through their personal
        representative, for personal recovery. The Campbells concede that the administrator
        will adequately represent their interests in the section 1983 action. As noted
        elsewhere, however, the interests of the Lands and the Campbells are not identical
        under the Ohio wrongful death statute. Although the children of both families are
        suing to recover the same type of damages, the amount of damages will differ for
        each child. Accordingly, the two sets of children are in competition in the sense that
        both want full recovery from what may be limited damages.


Id. at 950.


        Section 1983 claim. In this case, as in Purnell, Chad allegedly died at the hands of his

jailers and medical professionals, and other family members (Chastity, Joyce and Thaddeous) seek

to intervene in a lawsuit alleging (1) a violation of his constitutional rights under § 1983 and (2)

wrongful death under the Kentucky wrongful death statute, Ky. Rev. Stat. § 411.130. And as in

Purnell, the § 1983 claim would not provide damages for the suffering of the other family members,

here Chad’s sister and parents. As this court has previously explained, a § 1983 claim is a personal

right of action brought only on behalf of the individual whose rights have been violated:

                                                -7-
No. 04-5761
Boggess v. Price

       A survival claim is predicated upon the decedent’s claim for damages sustained
       during his lifetime. On the other hand, a wrongful death action creates a new and
       separate claim or cause of action for the damages sustained by decedent’s estate as
       a result of his death. The distinction as it arises in conjunction with alleged § 1983
       violations is apparent. The § 1983 cause of action, by virtue of the explicit language
       of the section itself, is a personal action cognizable only by the party whose civil
       rights had been violated; while, on the other hand, the wrongful death action is a
       cause of action that inures to the benefit of decedent’s estate, as a result of, not the
       personal injury suffered by the decedent, but rather, injuries to his estate caused by
       his wrongful death. This court has consistently distinguished these separate causes
       of action in Jones v. Wittenberg University, 534 F.2d 1203 (6th Cir. 1976), and Hall
       v. Wooten, 506 F.2d 564 (6th Cir. 1974), interpreting Ohio and Kentucky law,
       respectively.


Jaco v. Bloechle, 739 F.2d 239, 242 (6th Cir. 1984). As Purnell and Jaco make clear, the proposed

intervenors’ potential interest in the § 1983 action—i.e., their fair share of the total damages

awarded—would not be impeded by this litigation, which seeks only to establish liability and to

award total damages. See Purnell, 925 F.2d at 948.


       Just as significantly, Wanda, as administratrix, has both a duty and a personal interest to seek

the maximum damages available in the § 1983 action—under a damages calculation that cannot take

into account the proposed intervenors’ personal losses. Compare id. at 949. Under these

circumstances and under Purnell, Wanda adequately represents the proposed intervenors’ interest

in the § 1983 claim, and they accordingly have no right to intervene under Rule 24(a).


       Wrongful death claim. But that is where this case and Purnell diverge. Unlike Ohio’s

wrongful death statute, Kentucky’s wrongful death statute does not provide damages to siblings and

parents when, as here, the decedent is survived by a widow and children. In such a case, the widow



                                                -8-
No. 04-5761
Boggess v. Price

and children each receive half of the total damages. Ky. Rev. Stat. § 411.130(2)(b). As the

proposed intervenors therefore concede, if Kentucky law applies to the wrongful death claim in

terms of liability, damages and the distribution of damages, they do not have an interest at all in the

claim, let alone an interest impeded by the litigation or inadequately represented by the parties.


       Does, then, Kentucky law apply to the wrongful death claim? We believe that it does and

that the district court was correct in so holding. “A federal court exercising supplemental

jurisdiction is bound to apply the law of the forum state, including its choice of law rules.”

Menuskin v. Williams, 145 F.3d 755, 761 (6th Cir. 1998). As the district court noted, “‘[w]hen [a

Kentucky] court has jurisdiction of the parties its primary responsibility is to follow its own

substantive law. The basic law is the law of the forum, which should not be displaced without valid

reason.’” D. Ct. Op. (May 24, 2004) at 2 (quoting Foster v. Leggett, 484 S.W.2d 827, 829 (Ky.

1972)). As Kentucky law sees it, “[t]he ‘conflicts question should not be determined on the basis

of a weighing of interests’ . . . ‘but simply on the basis of whether Kentucky has enough contacts

to justify applying Kentucky law.’” Adam v. J.B. Hunt Transport, Inc., 130 F.3d 219, 230 (6th Cir.

1997) (quoting Arnett v. Thompson, 433 S.W.2d 109, 113 (Ky. 1968)). And, indeed, Kentucky

courts have “‘held the fact that [an] accident occurred in Kentucky, was, standing alone, enough

contact to justify the application of the law of Kentucky.’” Adam, 130 F.3d at 231 (quoting Foster,

484 S.W.2d at 829).


       Measured by these choice-of-law rules, Kentucky law plainly applies to this case. Chad was

injured in Kentucky, was incarcerated in Kentucky, was hospitalized in Kentucky and ultimately

                                                 -9-
No. 04-5761
Boggess v. Price

died in Kentucky. These contacts with the home state more than suffice to apply Kentucky law to

the wrongful death claim, even though Chad resided in West Virginia and even though Wanda and

the proposed intervenors reside there as well.


       Against this precedential backdrop, the proposed intervenors correctly conceded at oral

argument that Kentucky law controlled two inquiries raised by this lawsuit—the defendants’

wrongful death liability and damages arising from that liability—claiming not to “care if Kentucky

law applies to liability and damages.” They contend, however, that Kentucky would apply West

Virginia law to the distribution of those damages, because all of the potential beneficiaries live in

West Virginia. In support of this argument, they point to several district court and state court cases

that distinguished (1) the choice-of-law question regarding liability (and damages) and (2) the

choice-of-law question regarding the distribution of damages and that indeed applied a different

state’s law to each inquiry. See Walters v. Rockwell Int’l Corp., 559 F. Supp. 47 (E.D. Va. 1983);

Soares v. McClosky, 466 F. Supp. 703 (E.D. Pa. 1979); Shenandoah v. City of Philadelphia, 438 F.

Supp. 981 (E.D. Pa. 1976); Satchwill v. Vollrath Co., 293 F. Supp. 533 (E.D. Wisc. 1968); In re

Estate of Caccamo, 336 N.Y.S.2d 77 (N.Y. Surr. Ct. 1972).


       But even if these cases properly bifurcated the choice-of-law analysis, which we need not

consider today, the fact remains that Kentucky law applies to the liability and damages

determinations in this case. And that is enough to ensure that the proposed intervenors’ interest is

adequately represented and will not be impeded, at least until a court actually reaches the issue of

distribution. As Purnell noted, the proposed intervenors “may be able to intervene in the probate

                                                 - 10 -
No. 04-5761
Boggess v. Price

court’s distribution of the proceeds recovered in district court. Alternatively, [they] could

successfully sue the administrat[rix (Wanda)] for breach of fiduciary duty if [she] had already

distributed the proceeds.” 925 F.2d at 949. The legal factor that made these options inadequate in

Purnell—the potential reduction in total damages if the Campbell children’s losses were not

represented—is conspicuously missing here.          Kentucky law does not permit the proposed

intervenors’ personal damages to inform the calculation of total damages for which the defendants

could be liable, and accordingly the proposed intervenors need not take part in the current litigation

to preserve their potential right to distribution of those damages. If necessary, they may instead fight

for their share of the total damages when and where those damages are distributed. See Jones v.

Prince George’s County, 348 F.3d 1014, 1019 (D.C. Cir. 2003) (holding that family members could

not intervene in state wrongful death claim because another family member, acting as administratrix,

would adequately represent the proposed intervenors’ interests).


        In the end, we thus need not determine whether Kentucky would apply West Virginia law

or Kentucky law to the distribution of any damages awarded in this case, because the proposed

intervenors’ potential interest is adequately represented and will not be impeded by allowing the

district court to determine liability and total damages without their participation. The proposed

intervenors may be able to intervene in the subsequent distribution of any damages awarded, and

may indeed successfully establish before an appropriate probate or state court that West Virginia law

should apply to the distribution. But we need not decide that issue to determine whether they have

a right to intervene in this case. Indeed, we note that unlike damages applicable to the § 1983 claim,



                                                 - 11 -
No. 04-5761
Boggess v. Price

which apparently would be distributed in the appropriate probate or state court, see Purnell, 925

F.2d at 948, any damages recovered under Kentucky’s wrongful death statute apparently would not

pass through the decedent’s estate, see Rhodes v. Rhodes, 764 S. W.2d 641, 643 (Ky. Ct. App.

1988), and may be distributed directly to the proper recipients by the trial court itself, see Bays v.

Cox’s Adm’r, 229 S.W.2d 737, 740 (reversing the trial court’s distribution of damages under the

wrongful death statute). If the district court finds itself in the position to preside over the

distribution of any wrongful death damages awarded in this case, it should not consider a motion

to intervene in that distribution barred by this opinion.


       One final point: the proposed intervenors contend that the district court did not separately

consider the § 1983 claim in its choice-of-law analysis. They argue that under federal choice-of-law

rules applicable to this federal-law claim, West Virginia law would apply to the distribution of any

damages. But, as Purnell makes clear, even if the proposed intervenors have a claim to the

distribution of § 1983 damages, the total damages, determined by federal law, do not include the

proposed intervenors’ personal losses. All of which again means that the proposed intervenors

cannot satisfy the second or third prongs for mandatory intervention in this case. See Purnell, 925

F.2d at 948, 949.


                                                 III.


       For these reasons, we affirm the district court’s denial of the motion for mandatory

intervention.



                                                - 12 -
