BETTY HOSKINSON, Individually and as Surviving Spouse of RONALD HOSKINSON, Deceased, Plaintiff,
HIGH GEAR REPAIR, INC., Defendant.
MEMORANDUM AND ORDER
David J. Waxse United States Magistrate Judge
The matter is presently before the Court on Defendant’s Motion to Amend its Answer (ECF No. 59) and Plaintiff’s Motion to Amend Complaint (ECF No. 66). In its motion, Defendant seeks leave to amend its answer to add certain defenses, including allegations that conscious pain and suffering is legally immaterial and an heir cannot recover for any damages that accrued to the decedent between the time of injury and death. After Defendant filed its motion to amend its answer, Plaintiff filed a motion to amend her complaint “to clarify and better state” her wrongful death and survivor’s claims. As explained below, the Court denies Plaintiff’s motion to amend her complaint as futile and finds Defendant’s motion to amend its answer moot.
I. Background Facts
On March 10, 2010, while working in Haskell County, Kansas, for his employer Sallee, Inc., Ronald Hoskinson caught his shirt sleeve in the unguarded power take off on an anhydrous ammonia tank trailer, which had previously been refurbished and serviced by Defendant. As a result, Mr. Hoskinson became entrapped in the device and suffered massive and traumatic injuries. He later died from those injuries on March 28, 2010.
On June 17, 2011, Mr. Hoskinson’s spouse, Betty Hoskinson, filed a Petition for Issuance of Special Administration in the District Court of Gray County, Kansas, captioned In the Matter of the Estate of Ronald Hoskinson, Case No. 11 PR-11. In her Petition, Ms. Hoskinson requested that she be appointed special administrator for the Estate of Ronald Hoskinson, deceased, and for the issuance of letters of special administration. The Petition further stated that Ronald Hoskinson died intestate and that Plaintiff had an interest in his estate as one of his heirs. The Petition further stated that the appointment was “necessary to pursue any potential surviving cause of action pursuant to K.S.A. 60-1801” and that Ms. Hoskinson intended “to pursue an action for the wrongful death of Ronald Hoskinson, and, more specifically, for a survival action pursuant to K.S.A. 60-1801.”
On June 20, 2011, the Gray County District Court issued Letters Testamentary under the Kansas Simplified Estates Act,  which stated:
KNOW ALL PERSONS BY THESE PRESENTS: BETTY HOSKINSON, a resident of the state of Kansas, named as Special Administrator of the estate of Ronald Hoskinson, deceased, having been appointed and qualified as Special Administrator, is hereby granted Letters Testamentary issued under the Kansas Simplified Estates Act with full power and authority as provided by law.
No other order, including an order appointing special administrator, was entered in the Gray County action. The Gray County action was subsequently administratively terminated on January 9, 2012. No probate estate was ever opened.
On July 18, 2011, Plaintiff Betty Hoskinson filed this action “individually and as surviving spouse of Ronald Hoskinson, deceased.” In her Complaint (ECF No. 1), she alleged that she “is the surviving spouse of Ronald Hoskinson and brings this action for damages sustained by Ronald Hoskinson, as well as her individual damages.” Plaintiff further alleged in paragraph 20 of the damages section of her Complaint that “[a]s a result of negligent acts of the defendant Ronald Hoskinson suffered traumatic and extensive injuries, and conscious pain and suffering.” She also alleged that as his surviving spouse, she “suffered the loss of spousal care, guidance, support and income, comfort, and mental anguish from the trauma and death of her husband, for which she claims damages.”
After Defendant failed to answer, Plaintiff filed a motion for default judgment on August 16, 2011. After holding a hearing on August 31, 2011, the Court granted the motion and entered an Order for Default Judgment and Damage Determination on September 1, 2011. The Order entered default judgment against Defendant in the total amount of $1, 163, 610.83, assessed as follows: Conscious pain and suffering $250, 000.00; Wrongful death $250, 000.00; Worker’s compensation payments $411, 607.63; and Lost income $252, 003.20.
On December 7, 2011, Defendant filed a motion to set aside the default judgment and dismiss complaint. Finding that Defendant had shown excusable neglect for its failure to answer, the Court granted the motion and set aside the default judgment on April 12, 2012.
On February 26, 2013, Defendant filed the instant motion to amend its answer. Plaintiff filed her motion to amend the complaint on March 12, 2013.
On May 17, 2013, the Court convened the scheduled Final Pretrial Conference. After reviewing the parties’ proposed Pretrial Order and pending motions to amend, the Court advised the parties that it was postponing the Final Pretrial Conference until it had resolved the pending motions to amend. The Court further advised the parties that it required additional briefing on some issues before it could rule on the pending motions. The Court thereafter entered an Order (ECF No. 80) setting out the six issues on which it needed additional briefing from the parties. Plaintiff filed her Response (ECF No. 84) on May 31, ...