Concurring in Part and Dissenting in Part:
I do not disagree with the majority position that when an attorney undertakes *302representation in a wrongful death action, he has a fiduciary duty to the statutory beneficiaries of the decedent, even though he has been retained and is directed by the personal representative of the estate. This is so because, though not named as parties, the beneficiaries of the estate are the real parties in interest and will take if there is any recovery. The damages they will recover from the wrongful death action are economic damages only. See Birkenshaw v. Union Light, Heat and Power Co., 889 S.W.2d 804, 806 (Ky.1994) (“[T]he measure of damages for a wrongful death under the Kentucky Wrongful Death Statute is the value of the destruction of the power of the decedent to earn money.” (quotation mark omitted)). When the beneficiaries are minors, it naturally follows that the statute of limitations does not begin to run on a malpractice claim until they reach their majority. In this malpractice case, if the beneficiaries, here the Appellees, prevail, I believe the only damages they can recover are for economic loss from the wrongful death claim, contrary to the majority holding.
It is often also the case that the surviving spouse will bring a loss of spousal consortium claim in the same action. And, the surviving spouse most often acts as next friend to bring a claim for loss of parental consortium on behalf of any minor beneficiaries, usually the surviving spouse’s children, in the same action. Giuliani v. Guiler, 951 S.W.2d 318 (Ky.1997). Loss of consortium claims are for damages for the loss of love, affection and companionship, and in the case of a spouse, sexual congress. Martin v. Ohio County Hosp. Corp., 295 S.W.3d 104, 107 (Ky.2009). Such damages differ from the economic damages in a statutory wrongful-death claim. Id.
Since Guiler and Martin, we have recognized that loss of consortium claims belong specifically to the person claiming the loss, not the estate, and certainly not to the statutory beneficiaries under the wrongful death statute. Id. at 108. And such claims can be brought independently of a wrongful death claim, but most often are not, as there must be some determination that the death was wrongfully caused in both types of actions. as they “derive from the same injury.” Dep’t of Educ. v. Blevins, 707 S.W.2d 782, 785 (Ky.1986).
Here, the attorney, Mickiel Pete, brought the wrongful death action seeking loss of earning power on behalf of the estate, and brought a loss of spousal consortium claim on behalf of the surviving spouse, who was also the personal representative of the estate, seeking compensation for her loss of love, affection, companionship and sexual congress. He did not bring a claim on behalf of the children, through a next friend, for their loss of parental consortium.
I write separately because I believe the fiduciary duty to the statutory beneficiaries described by the majority arises only from the wrongful death claim and not from the loss of consortium claims. This is significant because only economic loss damages arise from a wrongful death claim. Under the facts of this case, the children have only a malpractice claim against Pete that they can bring within one year of reaching majority on the wrongful death action. However, this is not to say that there is not also a fiduciary duty that goes to minors who could also have brought loss of consortium claims, seeking non-economic damages for love, affection and companionship of their deceased parent. But I don’t believe that claim has been properly made here, and thus loss of consortium damages are not available in this remanded malpractice action.
*303The facts of this case indicate that while Pete did obtain two experts to testify as to causation of the death, the experts did not pass Daubert scrutiny. Because there was therefore no evidence of causation, the trial court dismissed the case against the defendant. The personal representative of the estate attempted to appeal, but was unsuccessful in appealing that ruling. But over two years later, after one of the two minor beneficiaries obtained majority, he filed a malpractice claim against Pete, joined by his mother as next friend for the remaining minor beneficiary. The malpractice claim was for negligence, gross negligence, breach of fiduciary duty, and for negligent or fraudulent misrepresentation, apparently related to only the wrongful death claim.
On remand, the trial court should look only at how Pete handled the wrongful death claim, which has as its damages only monetary loss from the decedent. Thé “soft” damages of loss of love and affection, companionship and, for the spouse, sexual congress are not a part of a wrongful death claim under Kentucky law. Should the beneficiaries be able to show that Pete somehow committed malpractice by failing to obtain experts that could get past Daubert scrutiny, and that this caused the dismissal, they can only claim loss of earning power, medicals, and funeral expenses under a wrongful death claim.
Because claims for wrongful death and loss of consortium are most often brought in the same action, there are grounds for confusion. In order to recover for the damages that follow from a loss of consortium claim, the pleadings must also allege a malpractice claim for loss of parental consortium as well as for a wrongful death claim. All three claims — wrongful death, loss of spousal consortium, and loss of parental consortium — depend on proving that the death was negligently caused. One bad act can give rise to three separate claims of malpractice: loss due to malprac-ticing the wrongful death claim, the spousal consortium claim, and the parental consortium claim. The loss of consortium claims require not only proof of the negligent cause of death, but also proof individual to each claimant in order to establish consortium damages. The wrongful death claim damages require only proof of negligent conduct causing the decedent’s death and the economic loss of the decedent.
Pete : obviously did tell Mrs. Anderson about the loss of spousal consortium claim, because she brought that claim, though it was dismissed in the trial court as untimely. And, she cannot now make a malpractice claim for her loss of consortium damages because the statute of limitations on a malpractice claim has expired for her.
But Pete did not file a claim for the children’s loss of parental consortium. The fact that this claim was not brought is not, standing alone, fatal to the children’s claim of loss of consortium damages in a subsequent malpractice action. The children have individual claims that are not subject to the statutory time frame for bringing a wrongful death action due to their minority, nor to the statutory distribution of the economic loss damages. Whatever can be shown about an individual’s loss of consortium with the decedent is unique to him. That claim can be brought by a next friend in his minority, or he may bring it himself after he reaches majority. Here, however, the children cannot bring this claim directly, since the wrongful death case was decided against them on summary judgment, and thus the preliminary fact — that their father’s death was negligently caused — cannot be proven in a direct action because the summary judgment denying liability is res judicata. Consequently, their only means of reach*304ing their loss of consortium damages now is through the malpractice action.
Thus if loss of consortium damages had been pleaded in the malpractice complaint, the children could seek those non-monetary damages if the malpractice claim established that Pete’s action prevented a finding that their father’s death was negligently caused. The mere fact that Pete did not make their loss of consortium claim at the time is merely further proof in the malpractice claim.
In order to recover loss of consortium damages in the malpractice claim, the children of necessity must show that there would have been a finding of wrongful death (though Pete’s negligence prevented that finding), and that they sustained loss of love, affection and companionship with their father because of it. But these damages are not due to their statutory beneficiary status in a wrongful death action that must be brought within the statutory time period by a personal representative of the estate under the wrongful death statute.
Thus, the children could have made malpractice claims against Pete for their damages as statutory beneficiaries and for their damages due to loss of consortium. The jury would first determine whether Pete malpracticed the wrongful death case. If so, the jury would then calculate economic loss. Then, the jury would determine whether the children sustained com-pensable loss of consortium, and if so,-in what amount.
This scenario is conceptually somewhat difficult, because it appeal’s that we are simply describing two different kinds of damages stemming from a single breach of duty. But because not every statutory beneficiary can make a loss of consortium claim, our law has recognized that wrongful death and loss of consortium are separate claims. Each claim requires different proof in addition to the common element of a death caused by another’s negligence. That is fact one. But from there, the elements of the claims depart. In wrongful death, there must be proof of economic loss, and that the claimant is a statutory beneficiary entitled to the statutory distribution. In loss of consortium, the claimant must prove the status of spouse or child, and the facts of his individual relationship with the decedent in order to prove the extent of the loss of love, affection, and companionship, or sexual congress in the case of a spouse. To recover both types of damages, both must be properly pleaded and proved.
I write separately because I do not believe the Appellees have made a claim for their loss of consortium damages under the pleadings in this case, and I want to point out that the only damages that should be recoverable by them on remand, should they prevail, are for economic loss. I believe this type of case, which involves allegations of malpractice on more than one claim, requires more than the barest of notice pleading. And certainly it requires more than referencing only the wrongful death claim.
■Since there are two possible claims of malpractice here, with one of them not having been pleaded below, I cannot say that general allegations of negligence give any notice at all that the children are seeking loss of consortium damages. In fact, paragraph 12 of the Complaint, a part of which the majority cites, speaks only to representation of the children as statutory beneficiaries, and reads in its entirety,
12. In connection with their provision of legal services to Plaintiffs as above described, Defendants owed certain legal duties and responsibilities not only to Mrs. Anderson in her capacity as the personal representative of the Estate of Mr. Anderson, but to Michael and Malik as well by virtue of their standing as *305statutory beneficiaries of a portion of any sums that would have been received via the Prior Action. Defendants owed Plaintiffs the duty to protect their interests with the reasonable care, skill, legality and diligence possessed and exercised by a Kentucky attorney and/or Kentucky law firm practicing in similar circumstances.
(Emphasis added.)
Clearly, the last sentence relates to the preceding sentence, and cannot be construed as a separate, broad claim sweeping in the loss of parental consortium claim. Nowhere in the complaint is loss of consortium mentioned in regard to the children, while the wrongful death claim is repeatedly referenced and the background facts refer only to the wrongful death claim. Finally, the demand part of the claim asks only for “damages,” and does not indicate that non-finaneial damages are being requested.
It is unreasonable to expect a defendant to extrapolate that a claim for loss of parental consortium damages is being made when it is never mentioned in the complaint. That is particularly true here since the specific damages that follow each claim are distinctly different. Otherwise, this Court is essentially saying that it is adequate pleading to simply say, ‘You were negligent in Act A and I want damages for A and B.” This clearly does not rise to the level of adequate notice required by our admittedly broad notice pleading. There is simply no notice that the children are also looking for damages from their loss of parental consortium claim.
Also, I recognize that this decision today places wrongful death attorneys in the difficult position of having to potentially face a malpractice claim many years in the future after young children have gained their majority. The statute requires that a wrongful death action be brought by the personal representative of the estate on behalf of the beneficiaries of the estate. That makes the personal representative the agent of the minor beneficiaries. The only viable argument that the minor children cannot be bound by the acts of their agent is that as minors, they retain their right to file a tort action within one year of reaching their majority without being time barred.
It seems a much simpler solution to simply say that in this case the personal representative also has the duty to bring any ancillary claims on behalf of the children in a timely manner, and failure to do so can result in an action being time-barred. Perhaps the legislature could do so. The personal representative is usually a parent of the minor beneficiaries, or someone who is motivated to look out for their interests, and thus is likely to be.very diligent, as no doubt Mrs. Anderson would have been here had she been informed that she could bring an action for the children’s loss of parental consortium. Certainly, she attempted to bring the malpractice action and subsequently brought this malpractice action on behalf of her remaining minor son.
But the majority has decided that the risk is better born by the attorney in a wrongful death action, who is held to professional standards and knowledge, than by the personal representative who often is not informed about the matter. I cannot fault the logic of that distribution of risk, although I do regret the potentially chilling effect this has on wrongful death representation.