Mr. Roof of Louisville, LLC v. The Estate of Ayanna Henry, (Successor Administrator Not Yet Appointed)
This text of Mr. Roof of Louisville, LLC v. The Estate of Ayanna Henry, (Successor Administrator Not Yet Appointed) (Mr. Roof of Louisville, LLC v. The Estate of Ayanna Henry, (Successor Administrator Not Yet Appointed)) 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.
Opinion
RENDERED: OCTOBER 26, 2023 TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0177-DG
MR. ROOF OF LOUISVILLE, LLC APPELLANT
ON REVIEW FROM COURT OF APPEALS V. NO. 2020-CA-1048 JEFFERSON CIRCUIT COURT NO. 15-CI-002902
THE ESTATE OF AYANNA HENRY, APPELLEES DECEASED (SUCCESSOR ADMINISTRATOR NOT YET APPOINTED); AMERICAN WATER HEATER COMPANY; AND THE ESTATE OF LENA BAILEY, DECEASED (SUCCESSOR ADMINISTRATOR NOT YET APPOINTED)
AND
2022-SC-0178-DG
AMERICAN WATER HEATER COMPANY APPELLANT
ON REVIEW FROM COURT OF APPEALS V. NO. 2020-CA-1048 JEFFERSON CIRCUIT COURT NO. 15-CI-002902
THE ESTATE OF AYANNA HENRY, APPELLEES DECEASED (SUCCESSOR ADMINISTRATOR NOT YET APPOINTED); MR. ROOF OF LOUISVILLE, LLC; AND THE ESTATE OF LENA BAILEY, DECEASED (SUCCESSOR ADMINISTRATOR NOT YET APPOINTED)
OPINION OF THE COURT BY CHIEF JUSTICE VANMETER
REVERSING AND REMANDING By statute, when a party, whether plaintiff or defendant, to an action
dies, an application to revive the action in the name of the representative or
successor of that party must be made within one year after death. KRS 1
395.278. In this case, we are required to decide whether the Court of Appeals
erred in holding that KRS 395.280, providing for the substitution of a
successor administrator, was not subject to the one-year limitation of KRS
395.278. We hold that the Court of Appeals did err and therefore reverse its
opinion reversing the Jefferson Circuit Court’s judgment which dismissed the
civil actions of the Estate of Ayanna Henry and the Estate of Lena Bailey
against American Water Heater Company (“AWH”) and Mr. Roof of Louisville,
LLC (“Mr. Roof”). Thus, the Jefferson Circuit Court’s summary judgment is
reinstated.
I. FACTS AND PROCEDURAL BACKGROUND
On June 18, 2014, eleven-year-old Ayanna Henry (Ayanna) was found
cold and unresponsive in the basement of her family home. When first
responders arrived, they pronounced her dead at the scene. Her mother,
Shanita Bailey (Shanita), her grandmother, Lena Bailey (Lena), and her
younger sister, Aniya Henry (Aniya), 2 each reported headaches and flu-like
symptoms and were transported to a local hospital to be evaluated. Due to
these symptoms, the first responders tested the home for elevated levels of
1 Kentucky Revised Statutes.
2 We refer to these persons by their first names merely to avoid confusion
because of their surnames.
2 carbon monoxide. The tests were positive for excessive levels of carbon
monoxide.
Several days earlier, Brian Cochran, the biological grandfather of the
deceased child and the owner of the family home where the death occurred,
had installed a “BFG Conversion Kit,” given to him from a local hardware store
as part of a recall on his water heater. Cochran installed the conversion kit
himself with the assistance of a family friend. AWH manufactured the water
heater and conversion kit.
Two days before the death of Ayanna, Mr. Roof replaced the roof of the
house via a subcontractor. At some point during the conversion kit installation
and the roof replacement, the ventilation for the water heater system was
apparently disrupted and not repaired.
On June 11, 2015, Shanita was appointed as administratrix of the Estate
of Ayanna. On the same day, Lena, the grandmother, individually; Shanita,
the mother, individually; and Shanita, in her capacity as next friend of her
minor child, Aniya, each filed a personal injury action against multiple
defendants, including AWH and Mr. Roof. Shanita, in her capacity as
administratrix of the Estate of Ayanna, also filed a wrongful death action
against the same defendants. 3 The claims alleged that the negligence of AWH
and Mr. Roof, amongst that of the other defendants, caused both Ayanna’s
death and the personal injury to each of Lena, Shanita, and Aniya. The record
3 The four causes of action were all set forth in one complaint.
3 discloses that the complaint was served by mail on Antwain Henry, the girls’
father, who was then incarcerated.
Lena passed away on June 24, 2015, mere days after the complaint was
filed, and thus her action was abated. In November 2015, Shanita was
appointed as the administratrix of the Estate of Lena Bailey. 4 A few days later,
Shanita, as administratrix of her mother’s Estate, moved to be substituted as
plaintiff in the action in lieu of Lena. 5 The trial court entered an Order
granting the motion for substitution on November 16, 2015, thereby effectively
and timely reviving Lena’s action under KRS 395.278 and CR 6 25.01(1). 7
4 The CourtNet records for these estates reveal that the Jefferson Public
Administrator had brief involvement in the estates’ administration. With respect to the Estate of Ayanna, the record appears to show that Chris Meinhart, the then serving Jefferson Public Administrator, was appointed as administrator for this Estate on July 23, 2015, but the Order of Appointment was rescinded and Shanita was appointed in January 2016. Estate of Ayanna Henry, Jefferson Dist. Ct., 15-P- 002281. Similarly, in the Estate of Lena Bailey, the record appears to show Meinhart was appointed on February 5, 2018. This was eighteen months after Shanita’s death. Meinhart’s appointment was set aside later in 2018, apparently so that Cochran could be appointed. Estate of Lena Bailey, Jefferson Dist. Ct., 15-P-004696. The reason for setting aside these appointments of the Jefferson Public Administrator is not disclosed in the record. 5 Shanita’s stated grounds in the motion was that substitution was appropriate
since “[p]ursuant to [CR] 17.01, as the personal representative for the Estate of Lena Bailey, Shanita Bailey as administratrix thereof, is the real party in interest.” (Emphasis added). This characterization is contrary to the Appellees’ argued position before us. The Appellees, for purposes of this opinion, are the Estate of Ayanna Henry and the Estate of Lena Bailey. 6 Kentucky Rules of Civil Procedure.
7 The record discloses that in March 2016, Plaintiffs filed a motion for leave to
amend the complaint to remove Lena Bailey as a plaintiff due to her death and “properly name the probate [sic] estate of Lena Bailey, Shanita Bailey, Executrix [sic],” referring to the November 16, 2015, Order of Substitution. Since substitution and revival had already occurred, the purpose of this motion is unknown; the trial court treated the motion as one to file an amended complaint and the defendants correspondingly filed answers.
4 However, on August 5, 2016, a few months after the successful revival of
Lena’s action, Shanita passed away and her individual action abated.
Following the death of Shanita, over two years passed before Cochran,
Shanita’s father as well as Lena’s life partner, was appointed by the Jefferson
District Court as the administrator de bonis non of each estate on December 5,
2018. No effort, however, was made to notify the defendants, their counsel or
the trial court of Shanita’s death. In fact, plaintiffs’ counsel continued to
practice the case as if Shanita were still alive, effectively misrepresenting that
fact with each pleading filed in the trial court for over two and one-half years. 8
8 While Appellees’ counsel attempt to pass off this discrepancy as due to the
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: OCTOBER 26, 2023 TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0177-DG
MR. ROOF OF LOUISVILLE, LLC APPELLANT
ON REVIEW FROM COURT OF APPEALS V. NO. 2020-CA-1048 JEFFERSON CIRCUIT COURT NO. 15-CI-002902
THE ESTATE OF AYANNA HENRY, APPELLEES DECEASED (SUCCESSOR ADMINISTRATOR NOT YET APPOINTED); AMERICAN WATER HEATER COMPANY; AND THE ESTATE OF LENA BAILEY, DECEASED (SUCCESSOR ADMINISTRATOR NOT YET APPOINTED)
AND
2022-SC-0178-DG
AMERICAN WATER HEATER COMPANY APPELLANT
ON REVIEW FROM COURT OF APPEALS V. NO. 2020-CA-1048 JEFFERSON CIRCUIT COURT NO. 15-CI-002902
THE ESTATE OF AYANNA HENRY, APPELLEES DECEASED (SUCCESSOR ADMINISTRATOR NOT YET APPOINTED); MR. ROOF OF LOUISVILLE, LLC; AND THE ESTATE OF LENA BAILEY, DECEASED (SUCCESSOR ADMINISTRATOR NOT YET APPOINTED)
OPINION OF THE COURT BY CHIEF JUSTICE VANMETER
REVERSING AND REMANDING By statute, when a party, whether plaintiff or defendant, to an action
dies, an application to revive the action in the name of the representative or
successor of that party must be made within one year after death. KRS 1
395.278. In this case, we are required to decide whether the Court of Appeals
erred in holding that KRS 395.280, providing for the substitution of a
successor administrator, was not subject to the one-year limitation of KRS
395.278. We hold that the Court of Appeals did err and therefore reverse its
opinion reversing the Jefferson Circuit Court’s judgment which dismissed the
civil actions of the Estate of Ayanna Henry and the Estate of Lena Bailey
against American Water Heater Company (“AWH”) and Mr. Roof of Louisville,
LLC (“Mr. Roof”). Thus, the Jefferson Circuit Court’s summary judgment is
reinstated.
I. FACTS AND PROCEDURAL BACKGROUND
On June 18, 2014, eleven-year-old Ayanna Henry (Ayanna) was found
cold and unresponsive in the basement of her family home. When first
responders arrived, they pronounced her dead at the scene. Her mother,
Shanita Bailey (Shanita), her grandmother, Lena Bailey (Lena), and her
younger sister, Aniya Henry (Aniya), 2 each reported headaches and flu-like
symptoms and were transported to a local hospital to be evaluated. Due to
these symptoms, the first responders tested the home for elevated levels of
1 Kentucky Revised Statutes.
2 We refer to these persons by their first names merely to avoid confusion
because of their surnames.
2 carbon monoxide. The tests were positive for excessive levels of carbon
monoxide.
Several days earlier, Brian Cochran, the biological grandfather of the
deceased child and the owner of the family home where the death occurred,
had installed a “BFG Conversion Kit,” given to him from a local hardware store
as part of a recall on his water heater. Cochran installed the conversion kit
himself with the assistance of a family friend. AWH manufactured the water
heater and conversion kit.
Two days before the death of Ayanna, Mr. Roof replaced the roof of the
house via a subcontractor. At some point during the conversion kit installation
and the roof replacement, the ventilation for the water heater system was
apparently disrupted and not repaired.
On June 11, 2015, Shanita was appointed as administratrix of the Estate
of Ayanna. On the same day, Lena, the grandmother, individually; Shanita,
the mother, individually; and Shanita, in her capacity as next friend of her
minor child, Aniya, each filed a personal injury action against multiple
defendants, including AWH and Mr. Roof. Shanita, in her capacity as
administratrix of the Estate of Ayanna, also filed a wrongful death action
against the same defendants. 3 The claims alleged that the negligence of AWH
and Mr. Roof, amongst that of the other defendants, caused both Ayanna’s
death and the personal injury to each of Lena, Shanita, and Aniya. The record
3 The four causes of action were all set forth in one complaint.
3 discloses that the complaint was served by mail on Antwain Henry, the girls’
father, who was then incarcerated.
Lena passed away on June 24, 2015, mere days after the complaint was
filed, and thus her action was abated. In November 2015, Shanita was
appointed as the administratrix of the Estate of Lena Bailey. 4 A few days later,
Shanita, as administratrix of her mother’s Estate, moved to be substituted as
plaintiff in the action in lieu of Lena. 5 The trial court entered an Order
granting the motion for substitution on November 16, 2015, thereby effectively
and timely reviving Lena’s action under KRS 395.278 and CR 6 25.01(1). 7
4 The CourtNet records for these estates reveal that the Jefferson Public
Administrator had brief involvement in the estates’ administration. With respect to the Estate of Ayanna, the record appears to show that Chris Meinhart, the then serving Jefferson Public Administrator, was appointed as administrator for this Estate on July 23, 2015, but the Order of Appointment was rescinded and Shanita was appointed in January 2016. Estate of Ayanna Henry, Jefferson Dist. Ct., 15-P- 002281. Similarly, in the Estate of Lena Bailey, the record appears to show Meinhart was appointed on February 5, 2018. This was eighteen months after Shanita’s death. Meinhart’s appointment was set aside later in 2018, apparently so that Cochran could be appointed. Estate of Lena Bailey, Jefferson Dist. Ct., 15-P-004696. The reason for setting aside these appointments of the Jefferson Public Administrator is not disclosed in the record. 5 Shanita’s stated grounds in the motion was that substitution was appropriate
since “[p]ursuant to [CR] 17.01, as the personal representative for the Estate of Lena Bailey, Shanita Bailey as administratrix thereof, is the real party in interest.” (Emphasis added). This characterization is contrary to the Appellees’ argued position before us. The Appellees, for purposes of this opinion, are the Estate of Ayanna Henry and the Estate of Lena Bailey. 6 Kentucky Rules of Civil Procedure.
7 The record discloses that in March 2016, Plaintiffs filed a motion for leave to
amend the complaint to remove Lena Bailey as a plaintiff due to her death and “properly name the probate [sic] estate of Lena Bailey, Shanita Bailey, Executrix [sic],” referring to the November 16, 2015, Order of Substitution. Since substitution and revival had already occurred, the purpose of this motion is unknown; the trial court treated the motion as one to file an amended complaint and the defendants correspondingly filed answers.
4 However, on August 5, 2016, a few months after the successful revival of
Lena’s action, Shanita passed away and her individual action abated.
Following the death of Shanita, over two years passed before Cochran,
Shanita’s father as well as Lena’s life partner, was appointed by the Jefferson
District Court as the administrator de bonis non of each estate on December 5,
2018. No effort, however, was made to notify the defendants, their counsel or
the trial court of Shanita’s death. In fact, plaintiffs’ counsel continued to
practice the case as if Shanita were still alive, effectively misrepresenting that
fact with each pleading filed in the trial court for over two and one-half years. 8
8 While Appellees’ counsel attempt to pass off this discrepancy as due to the
“lengthy process” of attempting to discern who in the family should take up the mantle as administrator, this failure has greater implications. “An attorney acts as an agent of his client.” Spees v. Ky. Legal Aid, 274 S.W.3d 447, 448 (Ky. 2009) (citing Clark v. Burden, 917 S.W.2d 574, 575 (Ky. 1996)). Under KRS 395.195, A personal representative, acting reasonably for the benefit of the interested persons, may properly: ... (18) Employ persons, including attorneys, auditors, investment advisors, or agents, to advise or assist the personal representative in the performance of his administrative duties[,] (19) Prosecute or defend claims, or proceedings in any jurisdiction for the protection of the estate and of the personal representative in the performance of his duties[.] As an elementary matter of agency law, the death of the principal terminates the agency and the agent’s power to act. Ping v. Beverly Enters., Inc., 376 S.W.3d 581, 591 (Ky. 2012) (citing Rice v. Floyd, 768 S.W.2d 57 (Ky. 1989); Restatement (Second) of Agency, § 120, 122 (1958)). This rule has been applied to the attorney-client relationship. See Harris v. Jackson, 192 S.W.3d 297, 306 (Ky. 2006) (noting death of client left attorney without client to represent) (citing ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 95-397 (1995)). These rules are of longstanding duration, having been applied early in our Commonwealth’s history to the agency created by an attorney-client relationship. See Campbell's Representatives v. Kincaid, 19 Ky. (3 T.B. Monr.) 68, 71 (1825) (holding that “under settled principles of law,” attorney’s agreement with client to prosecute a lawsuit ceased with client’s death); Clark’s Ex’rs v. Parish’s Ex’rs, 4 Ky. (1 Bibb) 547, 547 (1809) (holding “death of a party to an action pending vacates the power of his 5 Only when the trial court issued a CR 77.02(2) Notice to Dismiss, March 14,
2019, did Plaintiffs’ place in the record that Shanita had died. And this
pleading, entitled “Response to Court’s CR 77.02 Notice” was arguably
misleading by leaving the impression that Shanita had only recently died, in
stating,
Comes the Plaintiffs, by and through counsel, and in response to the Court’s notice, states as follows: Plaintiff is pursuing this matter, and discovery is ongoing. Due to the passing of Plaintiff Shanita Bailey on December 5, 2018, Plaintiff Brian Cochran, was appointed administrator of the estates of Shanita Bailey, Lena Bailey and Ayanna Henry.
(emphasis added).
Mr. Roof and AWH, following a February 2020 motion hour at which they
were indisputably made aware of the death of Shanita, each filed motions to
dismiss the claims of Shanita 1) individually; 2) as administratrix of Ayanna’s
Estate; and 3) as administratrix of the Lena’s Estate. The basis for the motions
attorney therein, and [attorney] is not required or authorized to do anything further in the action, except upon the retainer of the legal representative[]”). Within the context of estate administration, “[w]hen the powers of one personal representative cease, the remaining personal representatives may carry the trust into execution. If there is no remaining personal representative, an administrator de bonis non, or, if there is a will, an administrator with the will annexed, shall be appointed.” KRS 395.060. In other words, when a personal representative dies, as in this case, her powers cease, and the appointment of an administrator de bonis non is required. Failure to notify opposing counsel of the death of the party represented by the attorney is similarly a violation of Rules of Professional Conduct. Harris,192 S.W.3d at 305-06; Ky. Bar Ass’n v. Geisler, 938 S.W.2d 578, 580 (Ky.1997) (holding attorney had obligation to disclose death of identified client and that when death occurs, the attorney ceases to represent the identified client); see CR 25.01(1) (requiring “[u]pon becoming aware of a party's death, the attorney(s) of record for that party, as soon as practicable, shall file a notice of such death on the record and serve a copy of such notice in the same manner provided herein for service of the motion for substitution[]”).
6 was the failure to timely substitute a personal representative. KRS 395.278;
CR 25.01. The Plaintiffs responded that the delay was occasioned “by the task
of determining who would take over as administrator of each of the three
decedents’ estates. It was eventually discovered that the father of Ayanna and
Aniya Henry was incarcerated.” 9 And, they argued revival, as required by KRS
395.278, was not implicated. Rather, the matter only required substitution of
a personal representative under KRS 395.280, which contains no time limit.
On June 14, 2020, Cochran filed a motion to be substituted as party plaintiff.
Without addressing the motion to substitute, the trial court granted Mr. Roof’s
and AWH’s motions to dismiss concluding that the statutory time limitation on
revival applied.
Upon appeal, the Court of Appeals determined that the trial court erred
in concluding that the Estates failed to timely substitute a new personal
representative following the death of the original personal representative. The
Court of Appeals interpreted KRS 395.280 to provide a summary procedure by
which an estate’s personal representative may be replaced upon his or her
death or removal. Death or removal of the appointed representative does not
cause the estate’s action to abate; it merely requires a new substitution with
yet another representative. Est. of Henry v. Am. Water Heater Co., No. 2020-
9 The Appellees cite this reason to us as well. Unfortunately, this fact, “eventual discovery of incarceration,” is belied by the certificate of service on the June 2015 Complaint disclosing that the girls’ father was then incarcerated.
7 CA-1048-MR, 2022 WL 1051907, at *3 (Ky. App. Apr. 8, 2022). We granted Mr.
Roof’s and AWH’s petitions for discretionary review. 10
II. STANDARD OF REVIEW
As this matter involves questions of pure statutory interpretation, the
meaning, impact, and interrelation of KRS 395.280 and KRS 395.278, we
review the lower court’s decision de novo. Hauber v. Hauber, 600 S.W.3d 204,
207 (Ky. 2020) (citing Commonwealth v. Moore, 545 S.W.3d 848, 850 (Ky.
2018)). In conducting our review, we afford no deference to the lower courts’
statutory interpretations or conclusions of law. Hauber, 600 S.W.3d at 207
(citing Seeger v. Lanham, 542 S.W.3d 286, 290 (Ky. 2018)).
Our goal in statutory interpretation is to carry out the intent of the
legislature. Jefferson Cnty. Bd. of Educ. v. Fell, 391 S.W.3d 713, 718 (Ky.
2012); Saxton v. Commonwealth, 315 S.W.3d 293, 300 (Ky. 2010) (discerning
and effectuating legislative intent is the cardinal rule of statutory construction);
see also KRS 446.080(1) (“[a]ll statutes of this state shall be liberally construed
with a view to promote their objects and carry out the intent of the legislature”).
In addition, “[w]e 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.” Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky. 1984). Statutory
terms are interpreted “based upon their common and ordinary meaning, unless
10 The Court of Appeals noted that Shanita’s individual claim was properly
dismissed since no notice of substitution had been filed within a year of her death on August 5, 2016. KRS 395.278; CR 25.01. No argument exists that this dismissal was improper, and this claim is not before us.
8 they are technical terms.” Maupin v. Tankersley, 540 S.W.3d 357, 359 (Ky.
2018).
III. ANALYSIS
Most importantly for a proper analysis and resolution of this case is
recognition that we are confronted with two separate claims, filed by separate
persons, in separate capacities, albeit arising from a common event, and
initially encompassed within a single complaint. One is the personal injury
claim filed by Lena, and the other is the wrongful death claim filed by Shanita
as administratrix of Ayanna’s estate. For a very short time, following Lena’s
death and Shanita’s appointment as administratrix of Lena’s estate and
subsequent substitution as party plaintiff in place of Lena, both claims were
prosecuted by Shanita in a fiduciary capacity, but the differing nature of the
claims is important because of statutory provisions that operate on them.
A. Origin and Meaning of KRS 395.280
Because the Court of Appeals agreed with the Appellees’ argument that
KRS 395.280 merely “provides a summary procedure by which an estate’s
personal representative may be replaced upon her death or removal[,]” and is
not subject to the time limitation in KRS 395.278, examination of the origins
and meaning of KRS 395.280 is appropriate.
1. Survival of Actions Generally.
Recently, we addressed the relationship between KRS 395.278 and CR
25.01, including the history of those provisions. Estate of Benton v. Currin, 615
S.W.3d 34, 36-39 (Ky. 2021). The main point of the Currin opinion was to
9 clarify the procedure for substitution, and that “a motion for substitution
properly filed with the court in accordance with CR 25.01(1) within the one-
year allotted by the legislature constitutes revival.” Id. at 39.
Our Currin opinion briefly touched on survival of actions. We noted that
at common law, when a plaintiff passed away while prosecuting a case, the
case died with him. Id. at 36 (citing Daniel v. Fourth & Market, Inc., 445 S.W.2d
699 (Ky. 1968)). In order to ameliorate the harsh effects of the common law,
the legislature, early in our Commonwealth’s history, provided for the survival
and revival of actions. See 1 CHARLES S. MOREHEAD & MASON BROWN, DIGEST
OF THE STATUTE LAWS OF KENTUCKY, Abatement & Revivor, 85-90 (1834).
Noteworthy in this collection is a statute from 1812:
[N]o species of action for personal injuries, shall cease or die with the person, except actions for assaults and batteries, slander, criminal conversation, and so much of the action for malicious prosecution, as is intended to recover for the personal injury; but that for any other injury than those herein excepted, an action may be brought and maintained by executors and administrators . . . in like manner with causes of action founded upon contract. And upon the decease of either plaintiff or defendant to any actions which, by the provisions of this section, will not die with the person, it shall be lawful for such action to be revived in the name of the executors or administrators of the deceased, in the same manner, subject to the like proceedings, as in the cases which heretofore survived to the executors or administrators of the deceased, may be.
10 Act of Feb. 4, 1812, 4 Litt. 394; 1 MOREHEAD & BROWN, at 88. If this statute
seems familiar, it should because a direct line of statutory codification 11 runs
from it to our present KRS 411.140:
No right of action for personal injury or for injury to real or personal property shall cease or die with the person injuring or injured, except actions for slander, libel, criminal conversation, and so much of the action for malicious prosecution as is intended to recover for the personal injury. For any other injury an action may be brought or revived by the personal representative, or against the personal representative, heir or devisee, in the same manner as causes of action founded on contract.
The 1812 survival statute is important for two reasons: 1) it demonstrates that
many of our current statutes have long pedigrees, and 2) like the other early
abatement/revivor/survival of action statutes, it was silent as to survival of an
action when brought by an executor or administrator.
2. Predecessor of KRS 395.280
In 1838, our predecessor court was confronted with that very issue:
whether an action previously brought by an administrator of a decedent’s
estate survived the administrator’s death and thus could be revived by his
successor. Fletcher’s Adm’r v. Sanders, 37 Ky. (7 Dana) 345 (1838). The court
made short work of the issue, stating that “[w]hatever might be the technical
rule in an action at law, we have no doubt that, in equity, a suit brought by an
administrator, may be revived and prosecuted by an administrator, de bonis
11 Ky. Stat. § 10 (1894); Gen. Stat. ch. 10, § 1 (Ky. 1873); Rev. Stat. ch. 10, § 1
(Ky. 1852).
11 non, after the administrator’s death.” Id. at 347. A little over three years later,
the legislature enacted the following statute:
[I]n all cases where any suit may now be depending, or shall hereafter be depending, at law or in equity, in any of the courts of this Commonwealth, brought by or against an executor or any administrator whatever, and the plaintiff or defendant shall die, or be removed from office by the court in which he qualified or received his appointment, or his office shall expire, the suit shall not, for either of said causes, abate, or be discontinued, but the same may be revived and prosecuted in the name of, or against the successor, or person who shall accede to the duties, of such plaintiff or defendant who may have died, been removed from office, or whose office has expired, in the same manner as if such successor, or the person acceding to the duties, had originally been a party to such suit, any law or usage to the contrary notwithstanding.
Act of Feb. 23, 1842, ch. 269, § 1, 1842 Ky. Acts 63. Section 2 of this Act
provided the means by which the revival was to be made. The 1842 Act was
clearly enacted for the express purpose of clarifying that any action, whether at
law or in equity, brought by or against a personal representative did not abate
and was subject to revival by or against a successor.
In 1852, following the adoption of Kentucky’s Third Constitution, the
legislature undertook a wholesale revision of the statutes. Included in this
effort were provisions related to executors and administrators. The provisions
of the 1842 Act were simplified, as follows:
When any personal representative shall commence a suit or action, or shall be sued, and shall die, be removed, or superseded by another, before the termination of the suit or action, his successor may, by order of court, be substituted in the place or stead of the original plaintiff or defendant, the opposite party being notified of such order.
12 Rev. Stat. ch. 37, Art. 1, § 15 (Ky. 1852). 12 This compares with the virtually
identical language in KRS 395.280: “[w]hen any personal representative
commences an action or is sued, and then dies, is removed, or is superseded
by another before the termination of the action, his successor may, by order of
court, be substituted for the original plaintiff or defendant.”
While we no longer worry so much about actions at law/equity, that is
the origin of KRS 395.280 and clarifies its purpose: an action brought by or
against a personal representative who then dies does not abate with that death
but may be revived by the substitution of his/her successor. That purpose,
survival of the action, however, addresses an issue separate from the timing
within which the substitution/revival must occur. In 1851, the legislature
moved all the revival provisions 13 to the old Civil Code, including the one-year
limitation on revival of cases involving a personal representative, and the
predecessor statute to KRS 395.280 was then retained in the old Revised
Statutes (Ky. 1852). And this is where they remained until the adoption of the
present Civil Rules in the early 1950s and the moving of substantive provisions
of revival to Kentucky Revised Statutes.
3. CR 25.01 framework.
With this clear understanding of the meaning and purpose of KRS
395.280, fitting these three statutes, KRS 395.278, 395.280 and 411.140, into
12 The same language was included in the 1873 statutory revision, Gen. Stat.
ch. 39, art. 1 § 15 (Ky. 1873), and virtually identical language in the 1894 statutory revision following the adoption of the current constitution. Ky. Stat. § 3844 (1894). 13 See 1 MOREHEAD & BROWN, at 85-90.
13 the framework of CR 25.01 demonstrates that all serve different purposes,
none are superfluous, and inform our decision in this case. The first two
sentences of CR 25.01(1) provide: “[i]f a party dies during the pendency of an
action and the claim is not thereby extinguished, the court, within the period
allowed by law, may order substitution of the proper parties. If substitution is
not so made the action may be dismissed as to the deceased party.” (Emphasis
added). A wrongful death action, because filed by a personal representative,
survives the death of the personal representative (or does not permanently
abate and is subject to revival by substitution) by virtue of KRS 395.280.
Similarly, a personal injury claim survives (or does not permanently abate and
is subject to revival by substitution) by virtue of KRS 411.140. In other words,
these sections are the statutory authority, upon the death of a party, for such
claims “not [being] thereby extinguished,” and KRS 395.278 in both instances
provides the one-year period allowed by law for substitution.
To be clear, Shanita, as administratrix, filed the wrongful death action on
behalf of Ayanna’s estate. When Shanita, who was a party, died, KRS 395.280
provided that the wrongful death claim did not permanently abate, but rather
became dormant and was subject to revival by timely substitution. When
timely revival did not occur with one year, KRS 395.278, the wrongful death
action was properly subject to dismissal. CR 25.01(1).
Similarly, Lena individually filed a personal injury claim. When she died,
KRS 411.140 provided the authority that her personal injury claim did not
abate but was subject to revival by timely substitution. Initially, this occurred,
14 and Shanita as administratrix was substituted as a party. However, when
Shanita died, the claim was again rendered dormant but was subject to revival
by timely substitution. Again, when timely revival did not occur with one year,
KRS 395.278, Lena’s personal injury claim was properly subject to dismissal.
CR 25.01(1).
B. Real Party in Interest versus Nominal Party
While the foregoing analysis resolves the issues in this matter, Appellees
raise additional points that these clear, simple, easily applied statutes
somehow do not apply because of a distinction in whether a personal
representative is a real party in interest or merely a nominal party.
The Appellees advocate that we draw a distinction between a personal
representative as a nominal party as opposed to a real party in interest. This
“choice” ignores that in almost any postmortem litigation, the personal
representative is not only a necessary party but also the only party authorized
by statute to bring or defend actions. See KRS 395.195(19) (granting personal
representative the power to “[p]rosecute or defend claims, or proceedings in any
jurisdiction for the protection of the estate and of the personal representative in
the performance of his duties[]”); KRS 396.055(1) (actions on disallowed claims
to be brought against personal representative); KRS 411.130(1) (wrongful death
action “shall be prosecuted by the personal representative of the deceased[]”). 14
14 Our case law recognizes exceptions to the statutory requirement of the
personal representative bringing a wrongful death action in the instances of refusal by the personal representative to bring the action, fraud, or collusion. Louisville & 15 Our case law recognizes the personal representative as a necessary party.
Knox Cnty. v. Kelly’s Adm’x, 268 Ky. 361, 364, 105 S.W.2d 141, 142 (1937).
Further, CR 17.01 states “[e]very action shall be prosecuted in the name of the
real party in interest, but a personal representative . . . may bring an action
without joining the party or parties for whose benefit it is prosecuted.” This
civil rule reinforces the statutory framework that estate beneficiaries or
wrongful death beneficiaries are not necessary parties to postmortem litigation;
the personal representative is. To quote our predecessor court, “beneficiaries
of the [wrongful death] action are not proper parties.” Turner, 290 Ky. at 606,
162 S.W.2d at 221.
Unlike corporations 15 or limited liability companies, 16 the legislature has
not seen fit to endow estates as legal entities. Bolen v. Bolen, 169 S.W.3d 59,
61 n.2 (Ky. App. 2005). The statutes referenced above, KRS 395.195, KRS
396.055, and KRS 413.130, as well as all of KRS Chapters 395 and 396, lead
Nashville R.R. Co. v. Turner, 290 Ky. 602, 606, 162 S.W.2d 219, 221 (1942). Neither refusal, fraud, nor collusion has been alleged in this case. 15 By statute, “[t]he corporate existence shall begin when the articles of
incorporation are filed by the Secretary of State.” KRS 271B.2-030(1). Among the general powers of a corporation are the powers “to do all things necessary or convenient to carry out its business and affairs, including without limitation power to: (a) Sue and be sued, complain and defend in its corporate name[.]” KRS 271B.3- 020(1); see Schultz v. Gen. Elec. Healthcare Fin. Servs. Inc., 360 S.W.3d 171, 174 (Ky. 2012) (stating “widely accepted” general rule “that a corporation should be viewed as a separate legal entity[]”).
16 A limited liability company (“LLC”) is expressly designated by statute as “a
legal entity distinct from its members[,]” KRS 275.010(2), and members of an LLC are not proper parties in any action by or against the LLC. KRS 275.155. See also Turner v. Andrew, 413 S.W.3d 272, 277 (Ky. 2013) (holding that only proper party to bring suit for lost business income was the LLC and not its sole member).
16 to that conclusion. Resolution of whether an estate is or is not a legal entity is
not, however, essential to our decision.
While an administrator has been referred to as a “nominal party” in our
case law—since he/she/it pursues or defends actions on behalf of the
beneficiaries—that same case law, statutes, and our rules recognize that the
administrator is the only party with power to initiate or defend actions. See
Thomas’ Adm’r v. Maysville Gas Co., 112 Ky. 569, 575, 66 S.W. 398, 399
(1902); KRS 395.195(19) (personal representatives’ power to sue or defend
actions); KRS 396.055 (actions to enforce denied claims to be brought against
personal representative). 17
1. Wrongful death claim.
In Pete v. Anderson, 413 S.W.3d 291, 300 (Ky. 2013), we reiterated that
“the personal representative is the only party that may maintain the wrongful
death cause of action on behalf of the estate.” We stated “[t]his contention is
uncontested as the plain language of the statute supports it.” Id. We further
reaffirmed that the personal representative is a nominal party, and the
statutorily identified beneficiaries are the real parties in interest. Id. at 299-
301. As to the estate, we pointedly held, “[b]ased on the plain language of KRS
411.130 and our holding in Ping [v. Beverly Enterprises, Inc.], we must reject
17 Our case law has vacillated in referring to a personal representative as “real
party in interest” or as “nominal party.” Compare, e.g., Hammons v. Tremco, Inc., 887 S.W.2d 336, 338 (Ky. 1994) (“real party in interest”), and Snyder v. Snyder, 769 S.W.2d 70, 72 (Ky. App. 1989) (“real party in interest”), with Pete v. Anderson, 413 S.W.3d 291, 300 (Ky. 2013) (“nominal party”). Our opinion and resolution of the matter before us does not require resolution of this discrepancy.
17 [the] contention that the wrongful death action belongs to the estate.” Id. at
301 (emphasis added). Since the wrongful death beneficiaries, the real parties
in interest, are not proper parties to a wrongful death action, Turner, 290 Ky. at
606, 162 S.W.2d at 221; Thomas’ Adm’r, 112 Ky. at 575, 66 S.W. at 399, and
because the action does not belong to the estate, only one possible party exists
before the court: the personal representative. And here, that party, Shanita,
died. As discussed, supra, KRS 395.280 is the statutory authority that the
wrongful death action does not permanently abate, and revival by substitution
is permissible, but KRS 395.278 requires that revival be made within one year.
Less than two years ago, we clarified that revival is accomplished by
substitution, and that a two-part process is unnecessary. Currin, 615 S.W.3d
34. We stated,
From the beginning, revival was a means by which the legislature sought to alleviate the already harsh realities of death. Revival was, and continues to be, a vehicle by which successors-in-interest give notice to the court of the passing of the original party and signal their intent to take on the rights and liabilities associated with the original action.
Id. at 38-39. We affirmed that “KRS 395.278 is a statute of limitation, and that
a motion for substitution properly filed with the court in accordance with CR
25.01(1) within the one-year allotted by the legislature constitutes revival.” Id.
at 39. Furthermore, this Court and its predecessor have held time and again
that KRS 395.278 is a statute of limitations and is not subject to extension.
Hardin Cnty. v. Wilkerson, 255 S.W.3d 923, 926-27 (Ky. 2008); Hammons, 887
S.W.2d at 337; Daniel, 445 S.W.2d at 701.
18 Neither Wheeler v. Hartford Accident & Indemnity Co., 560 S.W.2d 816
(Ky. 1978) nor Vaughn’s Administrator v. Louisville & Nashville Railroad Co.,
297 Ky. 309, 179 S.W.2d 441 (1944), compel a different result. Wheeler merely
stands for the proposition that the personal representative is the sole, exclusive
party to maintain a wrongful death action, 560 S.W.2d at 819, and the
decedent’s father’s, who acted as personal representative, settlement and
release with an insurance company of “all claims arising out of the death of
[the deceased],” served as a release of the tortfeasor. Id. at 817. Consequently,
the deceased’s mother, as wrongful death beneficiary, was precluded from
asserting an independent wrongful death claim. Id. at 819.
Vaughn’s Administrator involved the application of the doctrine of res
judicata to a unique factual situation involving two lawsuits arising out of the
death of three boys in a vehicle which collided with a train at a crossing. In the
first action, the administrators of two boys who were passengers in the vehicle
sued the railroad and the parents of the driver. 297 Ky. at 311, 179 S.W.2d at
442. The claim against the parents was based on their vicarious liability for
the negligence of the driver as their employee. Id. A jury returned a verdict in
favor of the plaintiffs and against both sets of defendants. Id. at 312, 179
S.W.2d at 443. The second action was the wrongful death claim by the driver’s
father, as administrator, against the railroad. The railroad defended on
grounds of res judicata, based on the driver’s negligence as determined in the
first action. Our predecessor court held that because the parents had
participated as parties in the first action in which their son’s negligence had
19 been determined, and because the wrongful death action was prosecuted by
the administrator, not for his, but for their benefit, they were estopped to
relitigate the question of their son’s negligence. Id. at 315-16, 179 S.W.2d 444-
45. The issue of revival and substitution was not an issue and was not
addressed.
The proper resolution of this matter is that the trial court properly
dismissed the claim of the Estate of Ayanna Henry against AWH and Mr. Roof
for failure to timely revive the wrongful death claim by substitution of an
administrator/rix de bonis non within one year of the death of Shanita.
2. Personal Injury Claim.
With regard to the personal injury claim, as an initial matter, any
argument that CR 25.01 is limited to the original party filing the action is
simply untenable. The rule provides,
(1) If a party dies during the pendency of an action and the claim is not thereby extinguished, the court, within the period allowed by law, may order substitution of the proper parties. If substitution is not so made the action may be dismissed as to the deceased party. The motion for substitution may be made by the successors or representatives of the deceased party or by any party. . . .
CR 25.01 (emphasis added). No doubt exists but that Shanita, in a fiduciary
capacity, was a party plaintiff following her substitution to Lena’s claim.
Furthermore, KRS 395.278 contemplates the possibility of sequential revival(s)
in requiring “[a]n application to revive an action in the name of the
representative or successor of a plaintiff . . . shall be made within one year
after the death of a deceased party.” (emphasis added).
20 In the context of estate administration, the term “successor” is a term of
art and refers to a second or subsequent person or entity appointed by the
district court. See KRS 395.280 (stating “[w]hen any personal representative
commences an action or is sued, and then dies, is removed or is superseded by
another before the termination of the action, his successor may, by order of
court, be substituted for the original plaintiff or defendant[]”) (emphasis
added); 18 KRS 395.300 (authorizing “[a]n administrator de bonis non or any
other successor appointed in the place of a personal representative who
has resigned or has been removed or whose letters have been revoked, or who
has ceased to act or has died, may maintain an action against the former
personal representative[.]”) (emphasis added); see also Robertson v. Robertson's
Adm'r, 174 Ky. 836, 838, 192 S.W. 878, 878–79 (1917) (stating that following
death of executrix, action should have been revived in the name of her
“successor in the office of executor of the estate of her husband, and not
by her administrator[]”) (emphasis added); Thomas’ Adm’r, 112 Ky. at 574-75,
66 S.W. at 399 (holding that following death of administrator, trial court erred
in denying revival by his successor, the administrator de bonis non)
The Appellees argue that because Lena’s claim was timely revived by the
substitution of Shanita as administratrix, no further revival is necessary or
18 By its clear and simple terms, KRS 395.280 applies only to an action brought
by or against a personal representative. As Lena filed her own personal injury claim, we only need consider the impact of KRS 395.278 on the facts of this case.
21 required. As previously explained, this interpretation does not comport with
the statute’s plain language or case law. In this case, Lena, the original
plaintiff, died. Shanita, her administratrix, i.e., her representative, properly
revived that action by substitution, and thereby became the party plaintiff.
When Shanita died, her successor, Cochran, properly designated as
administrator de bonis non of Lena’s estate, was required to revive again, by
substitution, the personal injury action as successor to Shanita.
Unfortunately, this second revival/substitution would have been untimely
since he was appointed over two years after her death. KRS 395.278 clearly
contemplates successive personal representatives, and provides that timely
revival, within one year of the personal representative’s death, is required in
each case.
IV. CONCLUSION
As demonstrated in this case, several problems arise in ignoring the
statutory requirement that a successor personal representative be substituted
within a year. Years can pass with no resolution or movement towards
resolution. Legitimate questions arise as to whom exactly “Appellees’ counsel”
represents. Repetition is unnecessary of the extensive issues, including
possible violations of the Rules of Professional Conduct, all as set out in note 8,
supra, occasioned by the failure to timely notify opposing counsel of Shanita’s
death and to secure the appointment of a successor personal representative.
Suffice to say, this family, the Bailey/Henry family, appears not to have been
served well in the prosecution of this case.
22 In this case, at oral argument, “Appellees’ counsel” conceded that he has
no client. The parties have represented that Brian Cochran, the administrator
de bonis non of both the Estates of Ayanna Henry and Lena Bailey, died over a
year ago. 19 When asked, “who [sic] do you represent?”, counsel answered, “the
family.” Unless we are willing to grant representation to “the family,” or
perhaps to the “real parties in interest” who are not actual parties to this
litigation, CR 17.01, we ignore the plain provisions of KRS Chapter 395 which
repose authority in the duly-appointed and acting personal representative,
whose statutory powers are to be exercised “reasonably for the benefit of the
interested persons[.]” KRS 395.195. And when that representative dies, as in
this case, her powers die with her, and only with the appointment of a
successor, an administrator/rix de bonis non, can that successor rehire
counsel and then revive the action.
Finally, the facts of this case are tragic. And while it may be that some
events were out of the control of anyone involved in this case, compliance with
KRS 395.278 was not. The procedures and rules imposed specifically by KRS
395.278 and CR 25.01 and generally by KRS Chapter 395 are simple and
relatively easy to follow, as anyone with even a passing familiarity with
Kentucky probate and administration practice can attest. Once Shanita Bailey
19 Mr. Cochran’s death occurred on August 11, 2022, as confirmed by his
obituary listed on the website of the A.D. Porters & Sons Funeral Home, Louisville, Ky. (source: https://www.adporters.com/obituaries/Brian-Cochran/-!/TributeWall) (last accessed Aug. 26, 2023). The obituary states that he is “survived by his grandchildren, Aniya Henry, Braylen Abren, Brandon Abren, Jr., Brian Bailey[.]”
23 died, KRS 395.278 imposed a strict one-year limitation on revival of the
wrongful death claim with respect to Ayanna Henry and the personal injury
claim of Lena Bailey. Counsel was clearly aware of the necessity for revival
because Shanita Bailey was timely appointed as administratrix of Lena Bailey’s
estate and that action initially revived. Following Shanita Bailey’s death, a
delay of over two years in appointing her successor was simply unconscionable,
especially given the availability of securing the appointment of the Jefferson
County Public Administrator. 20 Accepting the Appellees’ arguments as to why
20 KRS 395.380(1) states that “[t]he District Court of each county shall appoint
a discreet, fit person to act as administrator of decedents' estates of which there is no personal representative[.]” The subsequent section, KRS 395.390, provides, (1) The District Court of a county which has a public administrator and guardian shall, after the expiration of sixty (60) days from the death of the decedent, order the public administrator and guardian to administer the estate of the decedent where the surviving spouse and heirs waive their right to be appointed, or if the surviving spouse does not nominate a suitable administrator, or in the event any of the persons designated in KRS 395.040 are unable, or found to be incapable of handling or managing the estate, or if from any other cause there is no personal representative. If there is no public administrator and guardian, the court shall order the sheriff to administer the estate. KRS 395.390. Whatever may be the case in other counties, Jefferson County has an active Public Administrator. See Andrew Wolfson, Lawyers in Ugly Fight to Snag Lucrative Job You’ve Probably Never Heard of, COURIER JOURNAL, Jan. 14, 2019 (detailing 2019 contest for selection as Jefferson County Public Administrator, in which position Hon. Chris Meinhart had served for almost 20 years). Any suggestion that the appointment of the Public Administrator would have delayed this matter or imposed a needless hurdle is simply incorrect, since securing that appointment would have taken a matter of weeks, if not days. See Jefferson District Court Local Rule 4 (in a large county like Jefferson, probate dockets are usually called daily). The Appellees’ Briefs note that this case implicates consideration of “open courts.” This assertion seems somewhat ironic considering that Appellees’ counsel held the keys to the courts and could have easily opened the doors following Shanita Bailey’s death. We reiterate the further irony of the fact, as previously noted, that Chris Meinhart, the then serving Jefferson Public Administrator, was appointed as administrator for Ayanna’s Estate on July 23, 2015, but that the Order of Appointment was rescinded, and Shanita Bailey was appointed in January 2016. Estate of Ayanna Henry, Jefferson Dist. Ct., 15-P-002281. The issues in this case 24 KRS 395.278 should not apply in this case effectively overrules Pete v.
Anderson, contravenes a number of statutes within KRS Chapter 395, will
create needless confusion among our bench and bar as to when KRS 395.278
may or may not apply in the future, and calls into question settled principles of
principal/agent law. The better decision is simply to apply the statute as
written.
The Court of Appeals is reversed, and the Jefferson Circuit Court’s
summary judgment is reinstated. This matter is remanded to the Jefferson
Circuit Court for such matters as remain unresolved.
VanMeter, C.J.; Conley, Keller, Lambert, Nickell, and Thompson, JJ.,
sitting. Conley, Lambert, Nickell, and Thompson, JJ., concur. Keller, J.,
dissents by separate opinion. Bisig, J., not sitting
KELLER, J., DISSENTING: The question at issue in this appeal can be
simply stated but is not so simply answered: Does the one-year statute of
limitations for revival under Kentucky Revised Statutes (KRS) 395.278 apply to
the substitution of an administrator de bonis non upon the death of a personal
representative? Because I find that the death of a personal representative, a
mere nominal party, does not trigger the requirement of revival, I believe the
answer is no and dissent from the Majority. Such a conclusion is further
could have been easily avoided if that appointment had not been rescinded, and if Meinhart had been timely appointed in Lena’s Estate and her personal injury action timely revived.
25 evidenced by the modern statutory framework encompassing revival and
substitution, and the legislative history of those statutes.
Revival and substitution each occupy distinct territories in this
Commonwealth’s probate practice framework. Upon the death of a party in
interest to a pending action, “that action is abated and lies dormant until it is
revived by a proper successor-in-interest.” Estate of Benton v. Currin, 615
S.W.3d 34, 36 (Ky. 2021). An application to “revive” that action is “a vehicle by
which successors-in-interest give notice to the court of the passing of the
original party and signal their intent to take on the rights and liability
associated with the original action.” Id. at 39 (emphasis added). Conversely,
“substitution” has long been merely the summary mechanism the court
employs to insert the correct parties into a pending action. See Substitution of
Parties, BLACK’S LAW DICTIONARY (11th ed. 2019) (The replacement of one litigant
by another because of the first litigant’s death . . . .”). A court may order
substitution of the proper parties for a myriad of reasons not limited to the
death of a party in interest. See Kentucky Rule of Civil Procedure (CR) 25.02
(incompetency); CR 25.03 (transfer of property interest); CR 25.04 (death,
resignation, replacement, or removal of a public official).
Until recently, Kentucky’s courts operated under a two-step framework
that required, upon the death of a party, any successor-in-interest seeking
both to revive an action and substitute himself in that action to file two
independent motions. This Court, in Estate of Benton, held that a lone motion
for substitution was sufficient to constitute revival, because such a motion
26 provides the notice necessary for revival. 615 S.W.3d at 39 (“Substitution of the
proper parties accomplished that goal.”). However, this Court did not hold that
revival, in and of itself, would be sufficient to constitute a substitution. Perhaps
this is because a motion for substitution requires the court to “ascertain and
evaluate whether the individual or entity filing the motion for substitution is
appropriate,” whereas a motion for revival places no such responsibilities on
the court. Id. at 39 n.16. While revival and substitution are often accomplished
contemporaneously upon the death of a real party in interest, it is clear the two
exist separately. If they did not, there would be no sense in employing the two
separate concepts. As such, I believe that when the legislature explicitly makes
a conscious choice to denote either revival or substitution, this Court should
listen.
I agree with the Majority that upon the death of a party in interest to a
pending action, “that action is abated and lies dormant until it is revived by a
proper successor-in-interest.” Id. at 36. However, the Majority gives little
credence to this Commonwealth’s caselaw differentiating a “real party in
interest” from a merely “nominal party.” That distinction is crucial, as the
death of a mere nominal party does not trigger the requirement of revival – only
substitution.
Under Kentucky Rule of Civil Procedure (CR) 17.01, “Every action shall
be prosecuted in the name of the real party in interest, but a personal
representative . . . may bring an action without joining the party or parties for
whose benefit it is prosecuted.” (emphasis added). By use of the conjunction
27 “but,” this rule makes clear that a personal representative is not the real party
in interest. See 2 Ky. Prac. Prob. Prac. & Proc. Necessary Parties § 1867 (2022)
(“[I]t may be said generally that every action shall be prosecuted in the name of
the real party in interest except that certain fiduciaries including personal
representatives . . . may maintain an action without joining the parties for
whose benefit the action is prosecuted.”). Instead, in wrongful death actions
“[t]he administrator [or personal representative] is merely a nominal plaintiff.
The real parties in interest are the beneficiaries whom he represents.” Vaughn’s
Adm’r v. Louisville & N.R. Co., 179 S.W.2d 441, 445 (1944); see also Pete v.
Anderson, 413 S.W.3d 291, 299 (Ky. 2013). The personal representative’s
status as a necessary party in a wrongful death action, as noted by the
Majority, does not change this distinction, as the “cause of action [is] for the
sole benefit of [the] named beneficiaries.” Id. The same is true for a personal
representative of an estate in any other type of action, including a personal
injury action of a deceased that has been revived, because the true party in
interest is the estate of the deceased. See Pete, 413 S.W.3d at 300 (citing Ping
v. Beverly Enters., Inc., 376 S.W.3d 581, 598–99 (Ky. 2012)) (“[A] survival action
is derivative of a personal injury claim which belongs to the estate.”)
The replacement of a nominal party, such as a personal representative,
regardless of reason, does not trigger a requirement for revival of the claim, as
there has not been a change to the real party in interest to the claim. This is
consistent with the “general rule . . . that an action does not abate by reason of
the death of a person where the action was brought by or against a person in a
28 representative capacity, or by or against a person in the capacity as a public
officer.” 1 C.J.S. Abatement and Revival § 134 (2023) (footnotes omitted); see
also Bowles v. Bowles, 18 S.W.2d 989, 990–91 (1929) (“The action was not of
the kind that abated on the death of [the] administratrix . . . . [S]he was a mere
nominal plaintiff.”); Thomas’ Adm’r v. Maysville Gas Co., 66 S.W. 398 (1902).
Perhaps this is because the real party in interest is readily identifiable, and still
“before the court.” See Koehler v. Com. by and ex rel. Luckett, 432 S.W.2d 397,
399 (Ky. 1968); Goben v. Keeney, 626 S.W.3d 692, 695, n.4 (Ky. App. 2021).
Upon the death or removal of a nominal party, the real party in interest
remains, and only a substitution of a new nominal party is required.
Accordingly, I reach a conclusion opposite that of the Majority: the one-
year statute of limitations governing revival, KRS 395.278, is inapplicable to
the claims before this Court today because the death of a mere nominal party
does not trigger the requirement of revival, only substitution. I find this
conclusion is further supported, and even confirmed, by the plain language of
the statutes, and their legislative history, governing both revival and
substitution, ever mindful that “the ‘plain meaning’ of the statute controls.”
Commonwealth v. McBride, 281 S.W.3d 799, 803 (Ky. 2009).
KRS 411.140 allows for certain personal injury claims to survive after the
death of the person injured. The statute requires those claims to either be (1)
brought by the personal representative of the estate of the deceased injured
person or (2) revived by the personal representative of the estate if the decedent
had initiated the claim prior to his or her death. This statute and its
29 predecessor statutes have explicitly required revival in the above-described
circumstance since at least 1812, according to the Majority. KRS 395.278, in
turn, provides the statute of limitations for revival of a claim. It is a general
statute and applies to all types of claims that are not extinguished by the death
of a party and that require revival.
KRS 395.280, on the other hand, allows for certain claims to survive
after the death of a personal representative. It applies only when a “personal
representative commences an action or is sued” and subsequently “dies, is
removed or is superseded by another” while the action is still pending. In those
specific circumstances, the legislature has delineated that the deceased
personal representative’s successor may be substituted by the court. This
more specific statute does not mention revival at all and assigns no statute of
limitations upon substitution. I assert that KRS 395.280’s absence of any
reference to revival is confirmation of the legislature’s understanding that the
death or removal of a personal representative, a mere nominal party, does not
trigger a requirement of revival. CR 25.01, as the Majority correctly observes, is
the procedural statute that instructs the court how to substitute a personal
representative’s successor into a pending action once his predecessor has died
or been removed. Like KRS 395.280, CR 25.01 does not reference revival, only
substitution. The Majority’s holding that a claim must be revived when a
personal representative dies adds language to this statutory scheme that does
not exist.
30 The Majority traces the history of KRS 395.280 back to 1842. The 1842
version of the statute stated that when an executor or administrator died or
was no longer in office, the claim to which he was a party could be revived.
The Majority then explains that “the legislature undertook a wholesale revision
of the statutes in 1852.” The 1852 statute looks much more similar to today’s
version of KRS 395.280 than did its predecessor. In 1852, the legislature
changed the statute to no longer reference revival of a claim after the death of
the personal representative but instead to say that a successor may be
substituted. As the Majority notes, the same language was included in the
1873 statutory revision and virtually identical language was included in the
1894 statutory revision.
The current version of KRS 395.280, which only references substitution
and does not mention revival, was enacted in 1942 and has remained
unchanged since then. This is true even after the significant work of the Civil
Code Committee in the early 1950s and the repeal of KRS 395.275-.277 and
enactment of KRS 395.278 in 1974. As previously stated, I believe the
legislature’s conscious choice to remove revival from KRS 395.280’s
predecessor statutes and require only substitution is evidence of its
understanding that the death of a personal representative does not trigger the
requirement of revival.
Revival has continued to have a one-year statute of limitations while
substitution has continued to have no statute of limitations attached. It seems
clear to me that “the legislature has been proactive in amending” the relevant
31 statutes and yet has declined to expressly apply a statute of limitations to
substitution of parties. Hughes v. UPS Supply Chain Sols., Inc., No. 2021-SC-
0444-DG, 2023 WL 5444612, at *5 (Ky. Aug. 24, 2023) (to be published). Under
the plain language of the relevant statutes, there is no express statute of
limitations applicable to the mere substitution of a personal representative.
Having explained the critical difference between a nominal party and a
real party in interest, as well as the impact of that difference on the
requirements of revival and/or substitution, I now must apply those differences
to the claims before us today. As the Majority accurately described, we have
two claims before us. The first is Lena Bailey’s personal injury claim which was
successfully revived by Shanita Bailey, as administratrix of Lena’s estate, prior
to Shanita’s death. The second is Ayanna Henry’s wrongful death claim
brought by Shanita, as administratrix of Ayanna’s estate, prior to Shanita’s
death. Shanita, at the time of her death, was the nominal plaintiff prosecuting
each claim. Because she was only a nominal party in each claim, her death did
not trigger a requirement that the claims be revived. At all times during the
litigation the trial court had the real parties in interest before it – the estates of
Lena Bailey and Ayanna Henry. Shanita’s death only required that a new
nominal party be substituted into the claims as a new personal representative
of the estates. Because only substitution was required, the one-year statute of
limitations governing revival was inapplicable. Accordingly, the trial court erred
in dismissing the claims based on the alleged untimely substitution of a new
nominal party.
32 The Majority expresses concern that, absent a statute of limitations,
cases such as these can linger in the trial court for years. I find this concern
unavailing. This Court has always expressed a desire to allow claims to be
resolved on their merits. See e.g., Mullins v. Commonwealth, 262 S.W.2d 666,
667 (Ky. 1953). Further, trial courts have mechanisms at their disposal to
ensure that cases before them move forward in a timely manner. The facts of
this case are tragic and, quite frankly, unlikely to be repeated. The Majority’s
disposition in this case denies justice to the Bailey/Henry family and results in
unnecessary hurdles to the prosecution of claims in the future.
Respectfully, I dissent.
COUNSEL FOR APPELLANT/APPELLEE, MR. ROOF OF LOUISVILLE, LLC:
John R. Martin, Jr. Hunter Rommelman Landrum & Shouse, LLP
COUNSEL FOR APPELLANT/APPELLEE, AMERICAN WATER HEATER COMPANY:
Byron Norman Miller Joseph Andrew Wright Thompson Miller & Simpson PLC
COUNSEL FOR APPELLEES, THE ESTATE OF AYANNA HENRY, DECEASED (SUCCESSOR ADMINISTRATOR NOT YET APPOINTED):
Kevin Michael Monsour Bruce Law Group, LLC
Charles E. Soechting, Jr. Law Offices of Charles E. Soechting, Jr.
33 COUNSEL FOR APPELLEES, THE ESTATE OF LENA BAILEY, DECEASED (SUCCESSOR ADMINISTRATOR NOT YET APPOINTED):
Charles E. Soechting, Jr. Law Offices of Charles E. Soechting, Jr.
Related
Cite This Page — Counsel Stack
Mr. Roof of Louisville, LLC v. The Estate of Ayanna Henry, (Successor Administrator Not Yet Appointed), Counsel Stack Legal Research, https://law.counselstack.com/opinion/mr-roof-of-louisville-llc-v-the-estate-of-ayanna-henry-successor-ky-2023.