Hardin County v. Wilkerson

255 S.W.3d 923, 2008 Ky. LEXIS 151, 2008 WL 2484581
CourtKentucky Supreme Court
DecidedJune 19, 2008
Docket2005-SC-000183-DG, 2005-SC-000206-DG
StatusPublished
Cited by8 cases

This text of 255 S.W.3d 923 (Hardin County v. Wilkerson) 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
Hardin County v. Wilkerson, 255 S.W.3d 923, 2008 Ky. LEXIS 151, 2008 WL 2484581 (Ky. 2008).

Opinions

Opinion of the Court by

Justice NOBLE.

The Appellants1 succeeded at the trial court in having the Appellees’ action dismissed for failure to revive their suit within one year of the death of the original plaintiff under KRS 395.278. The Court of Appeals held that that action was stayed and the one year statute of limitation in the revival statute was suspended by KRS 304.36-085 upon the insolvency and ordered liquidation of the Appellants’ insurance company. This Court holds that KRS 304.36-085 does not stay an action subject to revival, nor does it suspend the statute of limitations in KRS 395.278.

I. Background

Bessie Wilkerson fell and injured her hip while she was a patient at Hardin Memorial Hospital and was being cared for by several employees (Malinde Chil-dress, Hope Warren, Richard Kuchowiez, and Cynthia Randolph Hall). Ms. Wilkerson subsequently filed a negligence claim against the hospital and several of its employees (collectively, the Appellants). On July 16, 2002, while the matter was still pending before the trial court, Ms. Wilkerson died. Her son, Charlie Wilkerson, was appointed as executor of her estate. On June 20, 2003, the Appellants’ insurance company, Reciprocal of America Insurance Company, was declared insolvent by a Virginia state court and ordered into liquidation.

[925]*925The negligence lawsuit was not revived in the name of the estate within the twelve months following Ms. Wilkerson’s death. On July 22, 2003, the Appellants moved to dismiss the suit because it had not been timely revived under KRS 395.278. The Appellees responded that the revival statute of limitations had been tolled for six months by KRS 304.36-085 upon the declaration of Reciprocal’s insolvency. Nevertheless, the trial court dismissed the action, finding that it had not been timely revived.

A divided Court of Appeals panel held that the action was in active litigation prior to Ms. Wilkerson’s death and was “pending” at the time Reciprocal became insolvent, and that the action was stayed for six months as a matter of law by KRS 304.36-085. As a result, the court ruled that the action could have been revived after the stay expired.

The Appellants sought and were granted discretionary review by this Court.

II. Analysis

The issue in this appeal stems from an apparent tension between KRS 395.278,2 the revival statute, and KRS 304.36-085,3 which controls the staying of claims when Kentucky Insurance Guaranty Association (KIGA) steps in for an insolvent insurer undergoing liquidation. The Court of Appeals held that the stay statute effected an automatic stay of the Appel-lees’ action, which was “pending” despite the death of the original plaintiff, and that the stay suspended the running of the limitation period created by the revival statute. The Appellants argue that the Court of Appeals erred because the revival statute is a statute of limitation and must be strictly applied.

A simple way of looking at the inherent tension between two mandatory actions is to resort to definitions. KRS 304.36-085 states that all “proceedings” shall be stayed, subject to waiver, for at least six months. “Proceeding” is defined as “any application to a court of justice, however made, ... for redress of injuries, for damages,” or where “testimony can be compelled to be given” Black’s Law Dictionary 1204 (6th ed.1990). Clearly the action below had the trappings of a proceeding. However, KRS 395.278 requires that an application to “revive” an action shall be made within one year of the death of a party. Black’s defines “revival of action” as occurring when a personal representative substitutes for a deceased party so that the action is “brought to life again.” Id. at 1320.

The history of KRS 395.278 is important because, “[a]t common law, when the plaintiff died the lawsuit died with him....” Daniel v. Fourth & Market, Inc., 445 [926]*926S.W.2d 699, 701 (Ky.1968); see also id. at 700 (“There was no authority for survival and revival of a personal injury suit in Kentucky until it was legislated....”); Hammons v. Tremco, Inc., 887 S.W.2d 336, 337 (Ky.1994) (“At common law, all pending personal actions permanently abated upon the death of a sole plaintiff or defendant.”); Kennedy v. McAfee’s Ex’x, 11 Ky. (1 Litt.) 169 (1822) (“That, upon common law principles, the action could not be revived in the name of the executrix, is perfectly obvious; for the cause of action is founded on a tort, and wherever the declaration imputes a tort, done either to the person or property of another, and the plea must be not guilty, the rule at common law was, actio personalis moritur cum persona.”). The revival statute altered this practice, allowing the dead (or abated) suit to be revived. Nevertheless, the action in the name of the decedent is dead and cannot be prosecuted; it remains on the docket only as a placeholder for the revived suit in the name of the personal representative of the estate.

Thus, a simplistic analysis to the relationship between the statutes is that an action that is abated by the death of a party cannot be stayed by the action of another statute. The abated action is not a “proceeding” unless it is revived. Thus, only upon revival could the stay be enforceable. The question of whether the limitation period controls over the stay then is simple: since only upon revival is the limitation period tolled, thereby allowing the force of the stay to come into effect, it is inescapable that the revival statute controls. A review of the case law and the various arguments put forward demonstrates why this is the appropriate conclusion.

Since its inception, and through its various incarnations, the revival statute has consistently been read as one of limitation. See Hammons, 887 S.W.2d at 338 (“This provision operates as a statute of limitations”); Daniel,

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Bluebook (online)
255 S.W.3d 923, 2008 Ky. LEXIS 151, 2008 WL 2484581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardin-county-v-wilkerson-ky-2008.