Harralson v. Monger

206 S.W.3d 336, 2006 Ky. LEXIS 291, 2006 WL 3386541
CourtKentucky Supreme Court
DecidedNovember 22, 2006
Docket2004-SC-1090-DG
StatusPublished
Cited by4 cases

This text of 206 S.W.3d 336 (Harralson v. Monger) 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
Harralson v. Monger, 206 S.W.3d 336, 2006 Ky. LEXIS 291, 2006 WL 3386541 (Ky. 2006).

Opinions

Opinion of the Court by

Justice WINTERSHEIMER.

This appeal is from a decision of the Court of Appeals which affirmed a judgment of the circuit court dismissing an amended complaint as untimely.

The question presented is whether the two-year statute of limitations is tolled because of alleged misrepresentations made by Jacobs to police immediately following the collision.

The parties were involved in a six vehicle collision in which the vehicle driven by Monger first collided with the automobile [337]*337of Jacobs. Then, the Monger vehicle struck two other stationary vehicles including that driven by Harralson resulting in a chain reaction accident involving two other stationary vehicles.

Based on interviews with Jacobs and other witnesses at the scene, a police accident report indicated that Monger was at fault. Harralson, who had waived no-fault coverage, timely filed a negligence claim against Monger. Monger, in turn, filed a third-party complaint against Jacobs, following the deposition of Jacobs wherein he stated that the side-swiped collision with the Monger vehicle occurred when he started to pull into the right hand lane occupied by Monger. Harralson was then granted leave in July 2003 to amend his complaint to assert a claim against Jacobs.

Jacobs then filed a motion to dismiss the amended complaint claiming that it was not filed within the two-year statute of limitations and that it did not relate back to the original filing date. The trial judge, relying on Nolph v. Scott, 725 S.W.2d 860 (Ky.1987), granted the motion to dismiss, determining that there was no evidence that Jacobs had timely notice of a possible claim against him and that the pleadings do not reveal that Jacobs intentionally concealed or misrepresented his actions. The trial judge rejected any claim that the limitations period should be tolled on the grounds of fraud. The Court of Appeals affirmed the decision of the trial judge and this Court accepted discretionary review.

KRS 304.39-230(6) provides that a plaintiff who has rejected no fault insurance must commence an action for tort liability within two years of the injury. An amended pleading relates back to the date of the original pleading only if it satisfies the requirements of CR 15.03. That rule provides in pertinent part as follows:

(1) Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.
(2) 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.

There is no question that the amended complaint relates back to the original collision so as to satisfy CR 15.03(1). The only question here is whether Jacobs had sufficient notice of the claim that would not have prejudiced him in maintaining a defense in that “but for a mistake concerning the identity of the proper party” Jacobs knew or should have known that an action could have been brought against him. CR 15.03(2).

Monger first disputed the police accident report during her December 2002 deposition when she testified that Jacobs hit her. She stated that the impact diverted her attention and she was then unable to avoid hitting the stationary vehicles in her path. Monger suffered a head injury in the collision and did not recall speaking with the investigating officer after the collision. She was taken to the hospital by ambulance and did not speak with the investigating officer. Jacobs was the only person who could speak with the officer regarding the initial collision. He indicated that Monger “came up really fast ... and actually hit him and then careened off [338]*338his car.” Although Monger thought she later informed her insurance company that Jacobs had hit her, she never pursued a claim against him. She testified that she learned that she was listed on the accident report as the driver at fault only after Harralson filed his suit. She then deposed Jacobs who contradicted her claims by testifying that she had abruptly swerved in front of him several blocks before the accident.

The investigating officer was deposed after Monger and Harralson filed their third party and amended complaints. His testimony was that Jacobs never indicated that “he merged into her lane and hit her first,” and that such an admission would have been included in the accident report.

Harralson argues on appeal that Jacobs fraudulently misrepresented or concealed his liability or identity and should be es-topped from pleading the statute of limitations. He claims that to allow Jacobs to benefit from his own deception would encourage others to misrepresent and conceal facts reported to law enforcement for accident reports. He argues that the statute of limitations should be tolled when a motorist conceals or misrepresents to an investigating officer his role in causing the accident or when he only provides a complete account of the accident when he is deposed under oath after the statute of limitations has expired.

The response by Jacobs claims that Har-ralson has distorted the facts in order to divert attention from a failure to investigate the claim in a timely manner. Jacobs denies that he engaged in any concealment or misrepresentation.

Harralson relies on Underhill v. Stephenson, 756 S.W.2d 459 (Ky.1988). That case was a medical malpractice action in which the plaintiff sought to amend his complaint to add a nurse as an additional defendant. The alleged misrepresentation on the part of a nurse concerning the presence of the physician in the emergency room and the identity of the nurse was not discovered until the depositions were taken. The alleged negligent act of the nurse was unknown until the physician’s deposition was taken. This Court reversed and remanded for a new trial. The motion in that case was timely because it was filed within one year of the time the misrepresentation was discovered.

Here, the applicable statute requires the limitation period to be calculated from the date of the injury rather than from the date of identification of the alleged tortfea-sor. KRS 304.39-280(6).

Munday v. Mayfair Diagnostic Laboratory, 831 S.W.2d 912 (Ky.1992), is another medical negligence action against a diagnostic laboratory that was a partnership.

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Harralson v. Monger
206 S.W.3d 336 (Kentucky Supreme Court, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
206 S.W.3d 336, 2006 Ky. LEXIS 291, 2006 WL 3386541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harralson-v-monger-ky-2006.