Conner v. George W. Whitesides Co.

834 S.W.2d 652, 1992 Ky. LEXIS 95, 1992 WL 121691
CourtKentucky Supreme Court
DecidedJune 4, 1992
Docket90-SC-819-DG
StatusPublished
Cited by32 cases

This text of 834 S.W.2d 652 (Conner v. George W. Whitesides Co.) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Conner v. George W. Whitesides Co., 834 S.W.2d 652, 1992 Ky. LEXIS 95, 1992 WL 121691 (Ky. 1992).

Opinions

PAUL M. LEWIS, Special Justice.

Movant, Rodney A. Conner, Jr., as Executor of the Estate of Peggy J. Conner, appeals from a partial summary judgment of the Woodford Circuit Court which held that movant’s wrongful death claim was barred by the applicable statute of limitations. The trial court denied summary judgment as to a personal injury claim filed by the estate because that action was filed timely under applicable law. Presumably, because of its interlocutory nature, the trial court’s decision as to the personal injury claim was not appealed. The Court of Appeals affirmed the trial court’s summary judgment as to the wrongful death claim.

This appeal presents two issues to the Court. The first issue is whether KRS 413.180 applies to wrongful death claims. The second issue is whether the discovery rule applies to wrongful death claims. For the reasons stated hereafter, we hold that KRS 413.180 applies to wrongful death claims. Because of our decision on the first issue we need not address the second issue. We reverse the Court of Appeals.

Peggy Conner was an employee of Texas Instruments for many years. During the course of her employment, she was allegedly exposed to chemicals manufactured or supplied by the respondents. The primary contention of appellant’s claim is that the exposure to these chemicals resulted in Peggy Conner’s death.

Mrs. Conner was diagnosed with cancer on October 23, 1984. She died August 7, 1985. On September 25, 1985, an order was entered by the Woodford District Court probating Mrs. Conner’s will and dispensing with administration of her estate since Rodney Conner, Jr., Mrs. Conner’s husband, was the sole beneficiary. Mr. Conner was not appointed executor of the estate at that time.

Mr. Conner had suspicions as to the cause of his wife’s death and apparently attempted to discover the possible connection between her exposure to chemicals at work and her illness. On July 15, 1986, Mr. Conner retained counsel. Mr. Conner states that the respondents’ names were not determined until August 16, 1986. On September 23, 1986, Mr. Conner was appointed executor of Mrs. Conner’s estate in an order of the Woodford District Court which purports to be a Nunc Pro Tunc Order relating back to the order entered on September 25, 1985. Also on September 23, 1986, the present suit was filed in the Woodford Circuit Court.

KRS 413.180 provides time limitations for a personal representative of the deceased to bring specified causes of action. In full, the statute provides:

Action by or against personal representative under KRS 413.090 to 413.160
“(1) If a person entitled to bring any action mentioned in KRS 413.909 to 413.-160 dies before the expiration of the time limited for its commencement and the cause of action survives, the action may be brought by his personal representative after the expiration of that time, if commenced within one year after the qualification of the representative.
(2) If a person dies before the time at which the right to bring any action mentioned in KRS 413.090 to 413.160 would have accrued to him if he had continued alive, and there is an interval of more than one year between his death and the qualification of his personal representative, that representative, for purposes of this chapter, shall be deemed to have qualified on the last day of the one-year period.”

The statute limits its scope to actions “mentioned” in KRS 413.090 to 413.160. The statute creating a wrongful death action, KRS 411.130, is not among the statutes listed nor is a wrongful death action “mentioned” explicitly in the listed statutes. However, KRS 413.140 is among these statutes. KRS 413.140(1) and its predecessors have been recognized for over 100 years as establishing a one year statute of limitations for wrongful death [654]*654claims. See Carden v. Louisville & N.R. Co., 101 Ky. 113, 39 S.W. 1027 (1897). We reaffirm the applicability of this statute to wrongful death claims. KRS 413.140(1) provides a one year statute of limitations for actions relating to “an injury to the person of the plaintiff.” Death is simply the final injury to a person.

Since KRS 413.140(1) is within the statutes listed in KRS 413.180, then the question becomes whether wrongful death claims naturally come within the purview of the latter statute. The former Court of Appeals addressed this question and concluded that the predecessors to KRS 413.-180 did not apply to wrongful death claims. Faulkner’s Adm’r. v. Louisville & N.R. Co., 184 Ky. 533, 212 S.W. 130 (1919). See also, Totten v. Loventhal, Ky., 373 S.W.2d 421 (1963); Massie v. Persson, Ky.App., 729 S.W.2d 448 (1987). In the Totten and Massie cases, the respective courts held that KRS 413.180 does not apply to wrongful death claims, and in both cases wrongful death claims were dismissed where it was shown that the claims had not been filed within the statutory limit of one year. The Woodford Circuit Court and the Court of Appeals agreed with these authorities. Statutory changes to KRS 413.180 enacted in 1988 suggest that the exclusionary view taken in the above cases is inappropriate. The General Assembly has reenacted the inclusive reference to KRS 413.140 which the courts have stated expresses the wrongful death limitation but restricted the extension in KRS 413.180(2) to one year so that the effect of including the wrongful death limitation in KRS 413.140

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Cite This Page — Counsel Stack

Bluebook (online)
834 S.W.2d 652, 1992 Ky. LEXIS 95, 1992 WL 121691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conner-v-george-w-whitesides-co-ky-1992.