Mercy Regional Emergency Medical System, LLC v. The Estate of Joshua Adam Fuson, by Administratrixes, Amy Hickman and Daffeny Sneed Fuson

• Court: Kentucky Supreme Court
• Decided: June 25, 2026
• Docket: 2024-SC-0371
• Status: Unpublished

Opinion

RENDERED: JUNE 25, 2026 TO BE PUBLISHED

Supreme Court of Kentucky 2024-SC-0371-DG

MERCY REGIONAL EMERGENCY APPELLANTS MEDICAL SYSTEM, LLC AND SCOTT HENDRICKSON

ON REVIEW FROM COURT OF APPEALS V. NO. 2023-CA-1242 MCCRACKEN CIRCUIT COURT NO. 19-CI-00261

THE ESTATE OF JOSHUA ADAM APPELLEES FUSON, BY ADMINISTRATRIXES, AMY HICKMAN AND DAFFENY SNEED FUSON; AUBREY GRACE FUSON, A MINOR BY AND THROUGH HER MOTHER AND NEXT OF FRIEND AMY HICKMAN; AND VICTORIA PAIGE FUSON

OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT

AFFIRMING

Mercy Regional Emergency Medical System, LLC and Scott Hendrickson

seek review of the Kentucky Court of Appeals’ opinion reversing the trial court’s

order granting summary judgment on a decedent’s minor daughters’ loss of

parental consortium claim. The Court of Appeals held the plain language of

Kentucky Revised Statutes (KRS) 413.170(1) allows the children in this case to

prosecute their loss of consortium claim at any time. Therefore, the statute of

limitations did not bar the minor daughters’ loss of consortium claim. On appeal, Mercy Regional EMS and Hendrickson contend that the trial

court correctly granted summary judgment because the minor daughters’ loss

of parental consortium claim was not tolled under KRS 413.170(1) and

therefore was barred by the statute of limitations. We disagree, and we affirm

the holding of the Court of Appeals.

I. Background

This case arises from the death of Joshua Adam Fuson. On March 25,

2018, Fuson was under the influence of methamphetamine, prompting his

brother to call 911 due to concerns about his behavior. Officers from the

Paducah Police Department, emergency medical technician Hendrickson, 1 and

a Mercy Regional EMS ambulance arrived at the scene. Officers and

Hendrickson began rendering aid to Fuson. However, Fuson fled from the

scene, and officers pursued him. Once apprehended, Hendrickson again

provided medical care to Fuson. Body camera footage showed that Fuson was

combative. He cursed at officers, attempted to spit on Hendrickson, and

resisted further care. As a result, Fuson was taken to the McCracken County

Jail. While in custody, Fuson suffered a cardiac arrest, and he was

transported to Baptist Health in Paducah. On March 27, 2018, Fuson was

pronounced dead. Fuson was survived by two minor children.

Amy Hickman and Daffeny Fuson were appointed as co-administrators of

Fuson’s estate (Estate). On March 25, 2019, the Estate and Fuson’s minor

1 The record reflects that another EMT was also present and rendering aid to

Fuson.

2 children, by and through their mother as next friend (Minor Children), filed a

complaint against the City of Paducah, Kentucky, three Paducah Police

Department officers, and employees of the McCracken County Jail. Mercy

Regional EMS and Hendrickson were not named in that complaint. On June

26, 2019, the Estate and Minor Children moved for leave to file their First

Amended Complaint. Mercy Regional EMS and Hendrickson were again not

named in that complaint. On July 27, 2022, the Estate and Minor Children

moved to amend their First Amended Complaint. On September 21, 2022, the

Second Amended Complaint was filed. It alleged the same claims as the First

Amended Complaint, including wrongful death, negligence, intentional

infliction of emotional distress, and the Minor Children’s claim for loss of

parental consortium. Notably, Mercy Regional EMS and Hendrickson were

named in that complaint.

Mercy Regional EMS and Hendrickson moved for summary judgment on

the grounds that the Estate’s and Minor Children’s claims were barred by the

statute of limitations because the Second Amended Complaint was filed over

four years after Fuson’s death. On September 1, 2023, the trial court held a

hearing over the motion for summary judgment. The trial court dismissed the

Estate’s claims against Mercy Regional EMS and Hendrickson because the

claims were barred by the applicable statute of limitations. Furthermore, the

trial court dismissed the Minor Children’s loss of parental consortium claim

against Mercy Regional EMS and Hendrickson. First, the trial court dismissed

the Minor Children’s claim because it was derivative of the Estate’s wrongful

3 death claim and was thus dependent on the viability of the Estate’s claim.

Because the Estate’s wrongful death claim did not survive summary judgment,

the trial court found that the Minor Children no longer had a viable loss of

parental consortium claim. Second, the trial court found that the Minor

Children’s claim was barred by the statute of limitations pursuant to KRS

413.140(1). 2 Relying on Tallman v. City of Elizabethtown, 3 the trial court found

that this claim was not tolled by KRS 413.170(1). 4

The Estate and Minor Children filed an appeal alleging that the trial

court erred in dismissing the claims against Mercy Regional EMS and

Hendrickson. The Court of Appeals affirmed the trial court in part, holding

that the trial court did not err in dismissing the Estate’s claims against Mercy

Regional EMS and Hendrickson because the claims were barred by the statute

of limitations. 5 The Court of Appeals held that the Estate knew of Mercy

Regional EMS’s and Hendrickson’s involvement in 2018, the Estate had a duty

2 KRS 413.140(1)(a) states: “The following actions shall be commenced within

one (1) year after the cause of action accrued: . . . [a]n action for an injury to the person of the plaintiff, or of her husband, his wife, child, ward, apprentice, or servant[.]’ 3 No. 2006-CA-002542-MR, 2007 WL 3227599 (Ky. App. Nov. 2, 2007).

4 KRS 413.170(1) states:

If a person entitled to bring any action mentioned in KRS 413.090 to 413.160, except for a penalty or forfeiture, was, at the time the cause of action accrued, an infant or of unsound mind, the action may be brought within the same number of years after the removal of the disability or death of the person, whichever happens first, allowed to a person without the disability to bring the action after the right accrued.

5 Est. of Fuson by Hickman v. Mercy Reg'l Emergency Med. Sys., LLC, No. 2023-

CA-1242-MR, 2024 WL 3381440, at *1–7 (Ky. App. July 12, 2024).

4 to investigate within the limitations period, and the discovery rule 6 does not toll

for lack of diligence. Furthermore, a claim of fraudulent concealment was

waived because it was not preserved. The Court of Appeals held that this claim

was not raised in the trial court and that the Estate failed to raise it in its

initial brief.

However, the Court of Appeals reversed the trial court’s decision to

dismiss the children’s loss of consortium claim. First, the Court of Appeals

held that the loss of consortium claim is independent of the Estate’s wrongful

death claim. Therefore, the loss of consortium claim is not derivative of the

wrongful death claim, and it can survive summary judgment although the

Estate’s wrongful claim did not. Furthermore, the Court of Appeals found that

the trial court erroneously concluded that the Minor Children’s loss of

consortium claim was barred by the running of the applicable statute of

limitations. The Court of Appeals held that the plain language of KRS

413.170(1) allows the children in this case to prosecute their loss of

6 The Court of Appeals cited Wiseman v. Alliant Hosps., Inc.:

The discovery rule, a means by which to identify the “accrual” of a cause of action when an injury is not readily ascertainable or discoverable, was first enunciated in Tomlinson v. Siehl, Ky., 459 S.W.2d 166 (1970), and later refined in Hackworth v. Hart, Ky., 474 S.W.2d 377 (1971): “[T]he statute begins to run on the date of the discovery of the injury, or from the date it should, in the exercise of ordinary care and diligence, have been discovered.” This rule entails knowledge that a plaintiff has a basis for a claim before the statute of limitations begins to run. The knowledge necessary to trigger the statute is two-pronged; one must know: (1) he has been wronged; and, (2) by whom the wrong has been committed.

37 S.W.3d 709, 712 (Ky. 2000) (internal citations omitted).

5 consortium claim at any time, and that the trial court erroneously relied on

Tallman. Therefore, the Court of Appeals ordered this case to be remanded to

the trial court for additional proceedings. Mercy Regional EMS and

Hendrickson now file this appeal.

II. Analysis

Mercy Regional EMS and Hendrickson argue that the trial court correctly

dismissed the claims brought against them. On appeal, they ask this Court to

reverse the Court of Appeals solely on the ground that the loss of consortium

claim is barred by the statute of limitations. We decline to do so and affirm the

Court of Appeals.

“Summary judgment may be granted when there is no genuine issue as

to any material fact and the moving party is entitled to a judgment as a matter

of law.” Normandy Farm, LLC v. Kenneth McPeek Racing Stable, Inc., 701

S.W.3d 129, 135 (Ky. 2024) (internal quotations omitted). “The record must be

viewed in a light most favorable to the party opposing the motion for summary

judgment and all doubts are to be resolved in his favor.” Id. (citing Steelvest,

Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991)). “A motion for

summary judgment at the trial court, and on appeal, presents only a question

of law. . . .” Id. (citing Patton v. Bickford, 529 S.W.3d 717, 723 (Ky. 2016)).

Thus, “[o]ur review is de novo, and we afford no deference to the trial court’s

decision.” Patton, 529 S.W.3d at 723.

Mercy Regional EMS and Hendrickson argue that the Minor Children’s

loss of consortium claim is barred by the one-year statute of limitations

6 pursuant to KRS 413.140. We reject this argument and hold that the Minor

Children’s loss of consortium claim was tolled under KRS 413.170(1). KRS

413.170(1) states:

If a person entitled to bring any action mentioned in KRS 413.090 to 413.160, except for a penalty or forfeiture, was, at the time the cause of action accrued, an infant or of unsound mind, the action may be brought within the same number of years after the removal of the disability or death of the person, whichever happens first, allowed to a person without the disability to bring the action after the right accrued.

(Emphasis added). It is well-established law “that an infant . . . may bring an

action within the applicable statute of limitations after a disability has been

removed.” See Azmat ex rel. Azmat v. Bauer, 588 S.W.3d 441, 448 (Ky. 2018)

(citing Newby’s Adm’r v. Warren’s Adm’r, 126 S.W.2d 436, 437 (Ky. 1939)).

In interpreting a statute, we have a duty to accord to words of a statute their literal meaning unless to do so would lead to an absurd or wholly unreasonable conclusion. As such, we must look first to the plain language of the statute and, if the language is clear, our inquiry ends. We hold fast to the rule of construction that the plain meaning of the statutory langue is presumed to be what the legislature intended, and if the meaning is plain, then the court cannot base its interpretation on any other method or source. In other words, we assume that the Legislature meant exactly what it said, and said exactly what it meant.

Commonwealth v. Moore, 545 S.W.3d 848, 851 (Ky. 2018) (quoting Univ. of

Louisville v. Rothstein, 532 S.W.3d 644, 648 (Ky. 2017)). The plain language of

this statute clearly protects the Minor Children’s claim from being barred by

the statute of limitations. See KRS 446.080. On July 27, 2022, when the

Second Amended Complaint was filed, the children in this case were still

7 minors. 7 Therefore, their disability could not have been removed, and the

Minor Children’s claim was tolled under KRS 413.170(1).

Mercy Regional EMS and Hendrickson argue that the Minor Children’s

prosecution of their loss of consortium claim against some defendants waived

the tolling of the statute of limitations for any and all claims arising from the

same transactional nucleus of facts. However, the plain language of KRS

413.170(1) prevents this from happening. Moreover, we hold that a next friend

cannot waive the tolling of the statute of limitations under these

circumstances. Kentucky Rules of Civil Procedure (CR) 17.03 states: “Actions

involving unmarried infants or persons of unsound mind shall be brought by

the party's guardian or committee, but if there is none, or such guardian or

committee is unwilling or unable to act, a next friend may bring the action.”

“The next friend device is a procedural one by which a minor’s claim is brought

into court and a person acting as such is only a nominal party with no

unilateral statutory or other authority to settle the minor’s claim.” Azmat, 588

S.W.3d at 445 (quoting Jones ex rel. Jones v. Cowan, 729 S.W.2d 188, 190 (Ky.

App. 1987) (internal quotations omitted)). “A next friend is the minor’s agent,

merely bringing an action on the minor’s behalf.” Id. “The minor is the real

party in interest in any lawsuit filed on the minor’s behalf by the minor’s next

friend.” Id. at 445–46 (quoting Branham v. Stewart, 307 S.W.3d 94, 97–98 (Ky.

2010)). This “authority is limited to filing suit on the minor’s behalf and . . .

7 V.P.F. reached the age of majority in September 2022. A.G.F reached the age

of majority in December 2024.

8 lacks the authority to settle the lawsuit.” Branham, 307 S.W.3d at 98.

Accordingly, a next friend lacks the legal capacity to settle or otherwise

extinguish a minor’s claims. Pursuant to KRS 413.170(1), this limitation is

especially true where the alleged waiver is premised on the claim being barred

by the statute of limitations. Therefore, any failure by the next friend to initiate

a suit within the ordinary statute of limitations period cannot operate as a

waiver or forfeiture of the Minor Children’s claim.

The trial court relied on Tallman when it held that the loss of consortium

claim was not tolled by KRS 413.170(1). On appeal, Mercy Regional EMS and

Hendrickson further rely on Tallman, arguing that when minors prosecute

claims through a next friend, KRS 413.170(1) no longer tolls the statute of

limitations. While this Court recognizes the basis upon which the trial court

relied on this case for support, such reliance is misplaced.

In Tallman, a fatal police shooting occured after a high-speed chase.

2007 WL 3227599, at *1. Harold G. Lee, Jr., a passenger in the fleeing vehicle,

was shot and killed when an officer’s gun accidentally discharged as he

attempted to detain the driver. Id. In June 2002, Lee’s estate filed a complaint

in federal court, alleging federal claims under 42 U.S.C. 8 § 1983 and state law

claims cognizable under Kentucky law. Id. Lee’s minor children claimed loss

of parental consortium. Id. In June 2004, the federal court granted summary

judgment, dismissing the § 1983 claims with prejudice. Id. The court

8 United States Code.

9 ultimately dismissed the state law claims without prejudice. Id. In April 2006,

the United States Court of Appeals for the Sixth Circuit affirmed the district

court. Id. In June 2006, four years after filing in federal court, the Estate and

minor children filed the state law claims in state court. Id. The Estate argued

that the minor children’s claims should not be barred by the statute of

limitations because the claims were tolled pursuant to KRS 413.170(1).

However, the Kentucky Court of Appeals rejected this:

The Estate contends that KRS 413.170(1) tolls the limitations period of a minor's state law claim until the minor reaches majority. Here, however, the children's claims were prosecuted on their behalf by their mother, as guardian and next friend. In light of the procedural history of this case, we are not persuaded that KRS 413.170(1) tolled the children's claims, and the Estate offers no other authority to support its position.

Id. at 3. First, Tallman is not binding over this Court as it is an unpublished

Court of Appeals opinion. Second, due to the materially different procedural

posture, we conclude that Tallman has no application to the present case and

does not inform our analysis. We are unpersuaded that the Minor Children’s

claim should be barred by the statute of limitations because of Tallman.

Finally, had the Legislature intended to create an exception to KRS

413.170 by permitting the statute of limitations to bar a minor’s claims when

represented by a next friend, it could have expressly done so. See KRS

342.210 (“No limitation of time provided in this chapter shall run against any

person who is mentally incompetent or who is a minor dependent so long as he

has no committee, guardian or next friend, or other person authorized to claim

compensation for him under KRS 342.160.”); Inland Gas Corp. v. Flint, 269

10 S.W.2d 239, 239 (Ky. 1954) (In a workers’ compensation case, “where an infant

child is living with its mother, she becomes its next friend by operation of law

for the purpose of prosecuting an action for recovery for the death of its father,

and the statute of limitations is not suspended because of infancy under such

conditions.”). We acknowledge the policy concerns that this holding may, in

some circumstances, be perceived as permitting parties to circumvent

discovery rules. However, any such concerns are outweighed by the Court’s

obligation to safeguard a minor’s substantive right to pursue his or her claims

as set out by the Legislature.

Lastly, we also acknowledge that this was only one basis upon which the

trial court granted summary judgment. As to the alternative ground, namely

that a loss of consortium claim is an independent cause of action, the law is

still unclear on whether such a claim is derivative of the underlying negligence

or wrongful death claim. However, Mercy Regional EMS and Hendrickson did

not appeal this issue. Thus, we cannot disturb the Court of Appeals’ holding

on the matter. Consequently, the Court of Appeals’ conclusion that the

negligence claim is wholly independent of the loss of consortium claim must

stand, and it is the law of the case. Missionaries of Saint John the Baptist, Inc.

v. Frederic, 727 S.W.3d 400, 410 (Ky. 2025). Therefore, on remand, the trial

court must proceed accordingly and permit the Minor Children to establish the

elements necessary to prove the underlying wrongful death claim in support of

their loss of parental consortium claims.

11 III. Conclusion

Based on the foregoing, we affirm the holding of the Court of Appeals.

This case is remanded for further proceedings consistent with this opinion.

All sitting. Conley, Goodwine, Keller, Nickell and Thompson, JJ, concur.

Bisig, J., dissents by separate opinion.

BISIG, J., DISSENTING: I respectfully dissent from the well-written

Majority Opinion and would reverse the Court of Appeals and affirm the trial

court. KRS 413.170(1) provides in pertinent part that the time for a minor to

bring a claim is tolled until “the removal of the disability” of their minority.

This Court has previously held that the “disability” referenced in the statute is

the “general disability of . . . infancy as to the care of property and the

safeguarding of rights.” Newby’s Adm’r v. Warren’s Adm’r, 126 S.W.2d 436,

438 (Ky. 1939). Once a next friend pursues an action on behalf of a minor, the

minor is no longer under the “disability” of being unable to care for property

and safeguard rights. Indeed, that “disability” has been removed by virtue of

the next friend’s filing of a claim on the minor’s behalf. Thus, I conclude that

where, as here, a next friend pursues a claim on behalf of a minor, that minor

is no longer under the “disability” of being unable to care for their property and

rights, and thus the statutory tolling period set forth in KRS 413.170(1) is at an

end. As such, I would find the minors’ claims were not timely filed and

therefore reverse the Court of Appeals and affirm the trial court’s dismissal of

those claims.

12 COUNSEL FOR APPELLANTS:

James A. Sigler James P. Landry Keuler, Kelly, Hutchins, Blankenship & Sigler, LLP

COUNSEL FOR APPELLEES:

D. Chad McCoy McCoy & Hiestand, PLC

COUNSEL FOR AMICUS CURIAE, KENTUCKY JUSTICE ASSOCIATION:

Kevin C. Burke Jamie K. Neal Burke Neal PLLC