Gailor v. Alsabi

990 S.W.2d 597, 1999 Ky. LEXIS 20, 1998 WL 881233

• Court: Kentucky Supreme Court
• Decided: February 18, 1999
• Docket: 97-SC-191-DG
• Status: Published

Opinions

COOPER, Justice.

This action arises out of an automobile accident which occurred on June 3,1991 on Taylor Boulevard in Louisville, Jefferson County, Kentucky. Two vehicles were involved in the accident, one owned and operated by Appellee Hashim M. Alsabi and the other owned and operated by Fred Whalen. Appellee was the named insured of a policy of insurance issued by Kentucky Farm Bureau Mutual Insurance Company, which paid $7,238.90 in basic reparation benefits (BRB) for chiropractic bills incurred by Appellee. It is stipulated that the last BRB payment was made on February 4, 1992. Fred Whalen was the named insured of a policy of liability insurance issued by Allstate Insurance Company.

Whalen died of natural causes at the age of eighty-two on February 5, 1992. His will was admitted to probate by the Jefferson District Court on March 2, 1992. In her petition for probate, Whalen’s widow and sole beneficiary requested that she be appointed executrix of his estate. Instead, the district judge admitted the will to probate without appointing a personal representative. The probated will was filed as a public record in the office of the Jefferson County Court Clerk on March 10, 1992.

On February 3, 1994, Appellee filed this action against Fred Whalen and caused summons to issue against him at 2032 Ly-tle Street, Louisville, Kentucky, the address listed on the accident report. The summons was returned on February 16, 1994 with the notation that Whalen was deceased. Appellee’s attorney asserts that he did not learn of Whalen’s death until April 6, 1994. He did not move that the public administrator be appointed to administer Whalen’s estate pursuant to KRS 395.390 until September 22, 1994. The appointment was made on November 17, 1994. On January 19, 1995, Appellee filed an amended complaint substituting the public administrator as party defendant in place of Whalen.

The trial court granted summary judgment¹ in favor of the administrator on grounds that the action was barred by limitations. The Court of Appeals reversed, holding that CR 15.03(2) permitted the relation back of the amended complaint to the date the original complaint was filed. We granted discretionary review.

I. LIMITATIONS.

As a general rule, a cause of action for personal injuries arising out of an automobile accident must be brought within two years after the date of injury or the last payment of basic reparation benefits. KRS 304.39-230(6). Thus, the period of limitations with respect to this 'cause of action expired on February 4, 1994, one day after the original complaint was filed. KRS 446.030(l)(a); Derossett v. Burgher, Ky., 555 S.W.2d 579 (1977). Although the action was filed within the period of limitations, the only defendant named in the complaint was deceased. Since the complaint did not name a party defendant over whom the circuit court could acquire jurisdiction, the complaint was a nullity. Ratliff v.. Oney, Ky.App., 735 S.W.2d 338 (1987); Mitchell v. Money, Ky.App., 602 S.W.2d 687 (1980). The amended complaint was filed long after the expiration of the period of limitations.

KRS 396.011 affords no relief in this case. Subsection (1) of that statute requires that a claim against an estate must be presented “within six (6) months after appointment of the personal representative....” Appellee notes that his amended complaint was filed within six months after the appointment of the public administrator. We need not address whether the filing of a complaint satisfies the requirement of a formal presentation of a claim; for KRS 396.011(1) clearly limits its applicability to claims against estates which are “not barred earlier by other statute[s] of limitations.” KRS 396.011(2)(b) excludes from the operation of that statute “[t]o the limits of the insurance protection only, any proceeding to establish liability of the decedent or the personal representative for which he is protected by liability insurance.” This only means that a claim of tort liability not preserved by a formal presentation of a claim within six months of the appointment of the personal representative is not barred, except to the extent that the claim exceeds the limits of any applicable liability insurance coverage. The purpose of the statute is to protect the personal estate of the decedent, not his insurance company. The statute does not purport to affect any other applicable statute of limitations. Whether Appellee did or did not present a formal claim to the public administrator within six months of his appointment is immaterial, because this claim was barred by KRS 304.39-230(6) nine months before the appointment was made. Nor does KRS 413.180 have any application to this case. That statute pertains only to an action filed by an estate, not an action filed against an estate.

II. CR 15.03(2).

Appellee’s primary argument has always been the one which was adopted by the Court of Appeals, ie., that the amended complaint of January 19, 1995 related back to the date of the filing of the original complaint, February 3, 1994, thus was not barred by limitations. CR 15.03(2) provides as follows:

An amendment changing the party against whom a claim is asserted relates back if the condition of paragraph (1) is satisfied and, within the ■period, provided by law for commencing the action against him, the party to be brought in by amendment (a) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (b) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. (Emphasis added.)

The period of limitations expired on February 4, 1994. Fred Whalen had been deceased for almost two years when this action was filed. The administrator of his estate did not exist as a legal entity until November 17, 1994, more than nine months after the expiration of the period of limitations.

[T]he relation back rule mandates that the party to be named in an amended pleading knew or should have known about the action brought against him. CR 15.03(2)(b). Actual, formal notice may not be necessary. Cf. Funk v. Wagner Machinery, Inc., Ky.App., 710 S.W.2d 860 (1986). Nevertheless, knowledge of the proceedings against him gained during the statutory period must be attributed to the defendant.

Nolph v. Scott, Ky., 725 S.W.2d 860, 862 (1987).

Although Appellee’s attorney filed in the record a copy of a letter he mailed to Allstate enclosing a copy of the complaint, that letter is dated February 4, 1994, the last day of the period of limitations, and presumably did not arrive in Allstate’s office on the same day it was mailed. (Unlike other correspondence from Appellee’s attorney to Allstate, this letter does not contain the notation that it was sent “VIA TELECOPIER”) Regardless, Allstate was not named as a party defendant in either the complaint or the amended complaint; thus, CR 15.03(2)(b) could not apply to it.

Appellee’s reliance on Richardson v. Dodson, Ky., 832 S.W.2d 888 (1992) is misplaced. In that case, the plaintiff sued the proper defendants within the period of limitations. His error was that he brought the action in his own name instead of as administrator of the decedent’s estate. He was permitted to amend his complaint to correct the error after the expiration of the period of limitations. The defendants had notice of the institution and nature of the action within the period of limitations. Obviously, they were not prejudiced by the amendment, thus CR 15.03(2) applied. In this case, Appellee did not sue the proper defendant; and the proper defendant (the administrator) could not have had notice within the period of limitations, because he had not yet been appointed.

III. ESTOPPEL.

Appellee suggests that Allstate should be estopped to rely on the issue of limitations, because its claims adjuster, Peggy Smith, failed to inform Appellee’s attorney of Fred Whalen’s demise. We note at the outset that this issue is not preserved for review. The Court of Appeals decided this case solely on the basis that CR 15.03(2) permitted the relation back of the amended complaint to the date the original complaint was filed. With respect to this issue, the Court of Appeals stated: “It is of no consequence that at the time Alsabi filed the litigation he was not aware of Whalen’s death.” Slip op., p. 3. Appellant requested review only of the issues of limitations and the effect of CR 15.03(2). Appellee did not file a cross-motion for discretionary review. As was stated in Commonwealth, Transportation Cabinet, Department of Highways v. Taub, Ky., 766 S.W.2d 49 (1988):

We will not address issues raised but not decided by the Court below. It is the rule in this jurisdiction that issues raised on appeal but not decided will be treated as settled against the appellant in that court upon subsequent appeals unless the issue is preserved by cross-motion for discretionary review. CR 76.21(1); Nashville, C. & St.L. Ry. Co. v. Banks, 168 Ky. 579, 182 S.W. 660 (1916); and Eagle Fluorspar Co. v. Larue, 237 Ky. 263, 35 S.W.2d 303 (1931). In this case, counsel for Taub argued that the Secretary of Transportation is without power to certify a road for condemnation which is not in the six-year plan or expressly authorized by the General Assembly. This issue was touched upon by Taub in the Court of Appeals but not commented upon by the Court in its opinion. As such, the issue is deemed to have been decided adversely to Taub and his failure to file a cross-motion for discretionary review precluded further review in this Court.

Id. at- 51-52. See also Perry v. Williamson, Ky., 824 S.W.2d 869, 871 (1992); Stevens v. Stevens, Ky., 798 S.W.2d 136, 139 (1990); Green River Health Dept. v. Wig-ginton, Ky., 764 S.W.2d 475 (1989). Nevertheless, because the merits of this issue are discussed at length in the dissenting opinion, they will also be addressed here.

On April 29, 1992, Appellee’s attorney notified Peggy Smith, the Allstate claims adjuster, that his office would be representing Appellee with respect to injuries sustained in the June 1991 accident. Whalen was already deceased at that time and his probated will was a public record in the Jefferson County Clerk’s Office.

The next correspondence in the record is a letter from Appellee’s attorney to Smith dated May 13, 1993. That letter contains the following file reference:

RE: Claim No. 2200555320 KPS

Date of Loss — June 3,1991

Your Insured — Fred Whalen

Our Client — Hashim Alsabi

The letter acknowledged and rejected a settlement offer of $2,000 .00 and advised that a counteroffer would be forthcoming within the week. The last paragraph of the letter contains the following:

Although the statute of limitations on this claim will not run until 1994 (because of the last payment made by the basic reparations [sic] obligor), I prefer to file a lawsuit (if necessary) within two years after the date of the accident. As you know, this accident was June 3, 1991, meaning the target date for either settling this claim or filing a lawsuit is June 2,1993.

The record does not reflect whether Ap-pellee’s attorney followed through on his promise of a counteroffer within the week. However, he did not file suit on his “target date” of June 2, 1993. The next correspondence between Appellee’s attorney and Allstate did not occur until October 15, 1993.

Meanwhile, on September 8, 1993, Fred Whalen’s daughter-in-law, an employee of the attorney vvho had handled the probate of Whalen’s estate, notified Peggy Smith by telephone that Whalen had died on February 5,1992. She confirmed this verbal advice with a letter of the same date. That letter contained the following file reference:

RE: Claim No.: 2200555320 KPS Insured: Fred Whalen

On October 15, 1993, Smith sent Ap-pellee’s attorney a letter reiterating the previous settlement offer of $2,000.00 and inquiring about any additional medical information. The letter contained the following file reference:

Claim Number: 2200555320 KPS

Loss Date: June 3,1991

Our Insured: FRED WHALEN

Location: TAYLOR BLVD, LOUISVILLE

Claimant: HASHIM ALSABI

Apparently, Appellee’s attorney did not respond to this letter; for on November 22, 1993, Smith sent him another letter containing the same file reference, which stated simply as follows:

“T am writing to follow up with you on your client Hashim Alsabi. Please provide an update.”

The next correspondence between Ap-pellee’s attorney and Allstate was the February 4, 1994 letter by which Appellee’s attorney forwarded Allstate a copy of the complaint filed in this action. That letter contained the following file reference:

RE: Claim No.: 2200555320

Loss Date: June 3,1991

Your Insured: Fred Whalen

Location: Taylor Blvd. Louisville

Claimant: Hashim Alsabi

Appellee argues that Smith’s renewed offers and inquiries regarding possible settlement without revealing that Whalen was deceased estops Allstate from now relying on the defense of limitations. Mere negotiations looking toward amicable settlement do not afford a basis for estoppel to plead limitations. Black v. Maglinger, Ky., 444 S.W.2d 747 (1969); Brown v. Noland Company, Ky., 403 S.W.2d 33 (1966); Cuppy v. General Accident Fire & Life Assurance Corp., Ky., 378 S.W.2d 629 (1964); Burke v.. Blair, Ky., 349 S.W.2d 836 (1961); Pospisil v. Miller, Ky., 343 S.W.2d 392 (1961); Jackson v. Jackson, Ky., 313 S.W.2d 868 (1958); Old Mason’s Home of Kentucky, Inc. v. Mitchell, Ky. App., 892 S.W.2d 304 (1995). Instead, there must be “some act or conduct which in point of fact misleads or deceives the plaintiff and obstructs or prevents him from instituting his suit while he may do so.” Munday v. Mayfair Diagnostic Laboratory, Ky., 831 S.W.2d 912, 914 (1992); Adams v. Ison, Ky., 249 S.W.2d 791, 792 (1952) (emphasis added); see also Miller v. Thacker, Ky., 481 S.W.2d 19 (1972). The lesson from these cases is that mere silence with respect to the operative fact is insufficient. There must be an affirmative act by the party charged.

An exception to this general rule may be found if a party remains silent when the duty to speak or disclose is imposed by law. Munday v. Mayfair Diagnostic Laboratory, supra, at 914, citing Security Trust Co. v. Wilson, 307 Ky. 152, 210 S.W.2d 336 (1948) and Kurry v. Frost, 204 Ark. 386, 162 S.W.2d 48 (1942). In Munday v. Mayfair Diagnostic Laboratory, supra, the legal duty was imposed by the assumed name statute, KRS 365.015. In that case, the defendants had not complied with the statute and the plaintiff sued the wrong entity after consulting the assumed name records of both the Secretary of State and the Daviess County Court Clerk. (In this case, Appellee could have learned of Whalen’s death by consulting the probate records of the Jefferson County Court Clerk.) In Security Trust Co. v. Wilson, supra, the defendant, who had a fiduciary relationship with his niece, was estopped to rely on limitations where he had concealed the fact that he had converted the niece’s securities to his own use. And in Kurry v. Frost, supra, it was held that a hit-and-run driver could not rely on limitations in the face of a statute which forbade concealing one’s identity by leaving the scene of an accident. Obviously, none of those cases have any factual similarity to the case subjudice.

The facts of our case are more similar to those in Lingar v. Harlan Fuel Co., 298 Ky. 216, 182 S.W.2d 657 (1944), in which an employee attempted to sue his employer for personal injuries, but did not realize that the employer had dissolved its former corporate self and become a partnership, a fact which could have been readily ascertained by examination of public records.

[O]ne may not omit to avail himself of readily accessible sources of information •concerning particular facts, and thereafter plead as an estoppel the silence of another who has been guilty of no act calculated to induce the party claiming ignorance to refrain from investigating. Appellant had a year in which to ascertain from the public records the true status of his employers, and in all probability a mere inquiry of them would have elicited the truth.

Id. at 659.

It is asserted that the file references in Smith’s post-September 8, 1993 letters, which refer to “Our insured: Fred Whalen,” rather than, e.g., “Our deceased insured: Fred Whalen,” were calculated to deceive Appellee’s attorney into believing that Whalen was still alive. Of course, every businessperson knows that file references are just that: something to assist both the sender’s and the addressee’s clerical employees in identifying the file into which this correspondence should be placed. Interestingly, even the September 8, 1993 letter to Smith from Whalen’s daughter-in-law informing Smith of Whalen’s demise contained the file reference: “Insured: Fred Whalen.” In fact, Fred Wfiialen was Allstate’s insured. Regardless of Whalen’s current mortal status, Allstate remained liable for any damages caused by his negligence which occurred during the policy period.

Appellee’s attorney did not raise this issue in his brief or argument before the circuit court, or in his brief or argument before the Court of Appeals, or in his brief filed in this Court. This issue was raised for the first time during oral argument, and Appellee’s attorney did not claim even then that he was misled by Allstate’s file reference. He cited it only as evidence of Allstate’s intent to mislead. In order to prevail on a theory of estoppel, there must be proof not only of an intent to induce inaction on the party to be es-topped, but also of reasonable reliance by the party claiming the estoppel. Adams v. Ison, supra, at 793.

In response to Appellant’s motion for summary judgment, it was the obligation of Appellee to present some evidence to support his theory of estoppel. CR 56.03, Gullett v. McCormick, Ky., 421 S.W.2d 352, 355 (1967); cf. Hubble v. Johnson, Ky., 841 S.W.2d 169 (1992). We cannot assume in the absence of evidence that Peggy Smith knew that Appellee’s attorney was ignorant of Whalen’s demise, or that Smith was thus induced to fraudulently conceal that fact from him. There is no evidence in this record of any communication at all between Smith and Appellee’s attorney during the period between September 8, 1993 and February 4, 1994, except for Smith’s letters of October 15,1993 and November 22, 1993, requesting that some communication occur. Perhaps, if Appellee’s attorney had responded to these requests, Smith, as was suggested in Lin-gar v. Harlan Fuel Co., supra, might have imparted the crucial information to him. In the absence of any evidence of animus on Smith’s part, there can be no claim of fraudulent concealment. In the absence of any evidence of reliance on the part of Appellee’s attorney, there can be no estop-pel.

Finally, it is asserted that the duty imposed by law on Smith to affirmatively inform Appellee’s attorney of Whalen’s demise is found in the Code of Professional Conduct applicable to licensed attorneys. SCR 3.130, et seq. In Kentucky Bar Association v. Geisler, Ky., 938 S.W.2d 578 (1997), we disciplined a member of the Kentucky Bar Association for failing to disclose the death of her client to opposing counsel prior to consummating settlement negotiations. Obviously, the death of a plaintiff substantially impacts the settlement value of his claim for future medical expenses, future lost wages, or future pain and suffering. Ap-pellee’s knowledge, or lack thereof, of Whalen’s demise would have had little, if any, bearing on the settlement value of Appellee’s claim. More importantly, the sole basis for our decision in Geisler was that she had violated the Code of Professional Conduct, specifically SCR 3.130-4.1, and ABA Formal Opinion 95-397. Whatever duties the Code of Professional Conduct may impose upon licensed attorneys, it has no relevance to the conduct of laypersons.

Accordingly, we reverse the decision of the Court of Appeals and reinstate the judgment of the Jefferson Circuit Court.

GRAVES, JOHNSTONE and STEPHENS, JJ., concur. LAMBERT, C.J., dissents by separate opinion, with STUMBO and WINTERSHEIMER, JJ., joining that dissent.

1 . The administrator initially filed a motion to dismiss pursuant to CR 12.02. However, since documents outside the pleadings were presented to and considered by the trial judge, the motion was converted into one for summary judgment. CR 12.02; Ferguson v. Oates, Ky., 314 S.W.2d 518 (1958).