Defenses: Failure to revive cause of action upon defendant’s death dismissed as untimely and “equitable estoppel” not help the plaintiff under facts (Allen vs. Emily Conner, COA, NPO 2/28/2013)

Geraldine Allen vs. Emily Conner (now deceased) and Ohio Cas. Ins. Co.
COA NPO 2/28/2013
Affirming
Jefferson County

COMBS, JUDGE: Geraldine H. Allen appeals the April 8, 2013, order of the Jefferson Circuit Court dismissing her personal injury action against her alleged tortfeasor, Emily M. Conner, for failure to revive it within one year of Conner’s death. After our review, we affirm.  Court rejected application of equitable estoppel defense under these facts.

Ephriam McDowell Home in Danville, Kentucky.  "Father of modern surgery" conducted the first successful abdominal operation when he removed 22 pound ovarian cyst in 1809.  Patient sang hymns during procedure, recovered and died in 1842.

Ephriam McDowell Home in Danville, Kentucky. “Father of modern surgery” conducted the first successful abdominal operation when he removed 22 pound ovarian cyst in 1809. Patient sang hymns during procedure, recovered and died in 1842.

This suit arose from a car collision in which Geraldine Allen sued Emily Conner.  Allen’s attorney gave Conner’s liability insurer an indefinite extension while preparing and submitting a demand; thus no attorney was retained by the Ohio Cas./Liberty Mutual adjuster to represent or defend Conner.  However, Conner died, and an estate opened (unbeknown to the Ohio Cas adjuster or the attorney.  After the demand was received and while invesigating the claim, Ohio Casualty/Conner’s attorney discovered Conner had died more than a year previously.  The insurance lawyer filed an answer to the complaint and asserted that her claim was barred by the provisions of Kentucky Revised Statute[s] (KRS) 395.278, since an application to revive the action had not been made within one year of Conner’s death. On January 10, 2013, Allen filed a motion to revive the action and requested leave to file an amended complaint that included allegations against Ohio Casualty for unfair claims settlement practices and violations of Kentucky’s Consumer Protection Act.

When a party to litigation pending in a Kentucky court dies, the action is abated – unless and until the action is revived by substituting the decedent’s representative. The provisions of KRS 395.278 direct that the “application to revive an action . . . shall be made within one (1) year after the death of a deceased party.” (Emphasis added.) KRS 395.278 is “a statute of limitation, rather than a statute relating to pleading, practice or procedure, and the time limit within this section is mandatory and not discretionary….” Therefore, neither a court nor a party may extend the one-year statute of limitations. Snyder v. Snyder, 769 S.W.2d 70, 72 (Ky.App. 1989).

If an action is not revived against the administrator of the When a party to litigation pending in a Kentucky court dies, the action is abated – unless and until the action is revived by substituting the decedent’s representative. The provisions of KRS 395.278 direct that the “application to revive an action . . . shall be made within one (1) year after the death of a deceased party.” (Emphasis added.) KRS 395.278 is “a statute of limitation, rather than a statute relating to pleading, practice or procedure, and the time limit within this section is mandatory and not discretionary….” Therefore, neither a court nor a party may extend the one-year statute of limitations. Snyder v. Snyder, 769 S.W.2d 70, 72 (Ky.App. 1989).

Cause of Action. Kentucky is not a “direct action” state. Insurance company not proper defendant in wrongful death claim resulting in dismissal withOUT prejudice (Estate of Moore vs. Kentucky Farm Bureau Mutual Ins. Co. COA, NPO 2/21/2014)

Estate of Moore vs. Kentucky Farm Bureau Mutual Ins. Co
COA, NPO 2/21/2014 PJ Caperton Affirming in Part, Reversing in Part, and Remanding
Allen County
Affirmed dismissal of wrongful death claim (but without prejudice) asserted against insurer rather than insureds.

Dr. Ephraim McDowell, Danville,Kentucky marker in front of his home. Picture of home next post.

Dr. Ephraim McDowell, Danville,Kentucky marker in front of his home. Picture of home next post.

CAPERTON, JUDGE: The Appellant, Dovie Moore, Administrator of the Estate of Peyton Spencer Green (hereinafter “Moore”), appeals the February 5, 2013, order of the Allen County Circuit Court, dismissing her wrongful death claimagainst the Appellee, Kentucky Farm Bureau Mutual Insurance Company (hereinafter “Farm Bureau”). Upon review of the record, the arguments of the parties, and the applicable law, we affirm. However, because we also conclude that the dismissal should be without prejudice, we reverse that portion of the order and remand for entry of an order dismissing without prejudice.

COA: Sept. 12, 2014 Decisions (Minutes) (820-846): open obvious defense distinction made on licensee vs. invitee duty; store’s duty to intervene in physical altercation involving customers; choice of law on UM “other insurance” clauses and “offsets”

2014.09.Boyle.First College in West.IMG_9940

First College in the West – 1783. Centre College. Danville, Kentucky.

The Kentucky Court of Appeals announced 27 decisions  on Sept. 12, 2014, with two opinions designated to be published – Grange v. Tennessee Farmers Mutual Ins. Co.  (choice of law decision regarding Kentucky UM policy and Tennessee UM policy and applying the Tennessee rule of offsetting coverage); and Hack v. Commonwealth of Kentucky (criminal decision).

The two Court of Appeals opinions to be published are:

827.  Choice of Law, Uninsured Motorist Benefits, Tennessee Offset, and Priority of Coverages
Grange Property & Casualty Co.  v. Tennessee Farmers Mutual Ins. Co
COA Published 9/12/2014 PJ Clayton Affirming
Pike County

CLAYTON, JUDGE: Grange Property and Casualty Company (hereinafter “Grange”) appeals the Pike Circuit Court’s order that granted the summary judgment motion of Tennessee Farmers Mutual Insurance Company (hereinafter “Tennessee Farmers”) and denied Grange’s motion for summary judgment.

Presented with a choice of law question, the trial court decided that under the modern test, that is, which state “has the most significant relationship to the transactions and the parties,” Tennessee law was applicable regarding the priority of the uninsured motorist (UM) coverage between Grange and Tennessee Farmers. Restatement (Second) Conflicts of Law § 188 (1971).

Further, the trial court determined that Grange’s UM policy provided primary coverage to the injured party and Tennessee Farmers’ policy provided secondary coverage. Additionally, based on Tennessee law, Tennessee Farmers’ secondary coverage for Ferlin Pruitt was extinguished since the injured party had collected over $100,000.00 in workers’ compensation benefits. After careful consideration, we affirm.

840.  Criminal Law.  Search and Seizure. “Knock and talk” rule.  Curtilage examined.
Hack v. Commonwealth of Kentucky
COA Published 9/12/2014;  PJ Clayton Reversing and Remanding
Graves County

CLAYTON, JUDGE: Donna Hack appeals the Graves Circuit Court’s opinion and order dated July 11, 2013, denying her motion to suppress evidence seized after a warrantless entry into her garage.  The trial court denied in part and granted in part the motion to suppress. Hack subsequently entered an Alford plea, reserving the right to appeal the denial of her suppression motion.  After careful review, we reverse the decision of the Graves Circuit Court and remand for further proceedings consistent with this opinion.

“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.

The Tort Report – Selected decisions this week on tort, insurance and civil law (continue reading).

SC: April 2014 Attorney Disciplinary Matters

Here are the attorney disciplinary matters handled by the Kentucky Supreme Court for the month of April 2014 William Perry McCall,  Travis Olen Myles, Jr.,  Daniel Edward Pridemore, Clyde F. Johnson,  E. William David Rye,  F. James P.S. Snyder,  &  G. Clifford Branham,.

Download (SC.Discipline.April2014.pdf, PDF, 33KB)

 

SC: June 2014 Summaries of Published Opinions from Supreme Court of Ky

The Supreme Court of Kentucky released its summary of published decisions for June 2014.

These published opinions included the following injury law, tort, insurance, and civil decisions:

  • SC held in MV Transportation v. Allgeier (1) as an issue of first impression, the company’s concession that it was vicariously liable for driver’s negligence under respondeat superior did not preclude the passenger’s claim that the company was also directly liable for its own negligence upon her claims for negligent hiring, training, and retention; (2) that the motion in limine to exclude evidence of the driver’s alcoholism did not relieve the defendant of the obligation to contemporaneously object when passenger’s use of such evidence at trial exceeded the pre-trial ruling restricting that evidence to impeachment purposes; (3) a limited retrial exclusively on the claim for punitive damages would not violate the company’s right to a trial by jury under § 7 of the Kentucky Constitution, and would not violate the requirement of KRS 411.186(1) that punitive damages be tried along with claims for compensatory damages.
  • Sovereign immunity addressed in context of state college employees claiming a contractual right to long term disability (Vera Furtula vs University of Kentucky).

Click here for list of “archived” monthly summary of Supreme Court cases.

“Continue reading” for the complete copy of this week’s minutes of ALL decisions with links to their full text.

SC: March 2014 Attorney Disciplinary Matters

Here are the attorney disciplinary matters handled by the Kentucky Supreme Court for the month of March 2014 involving   Nancy Oliver Roberts,  B. Geoffrey Miller,  Thomas John Leksan,  Gary Lynn Gobleb & E. Richard K. Rose.

Download (SC.Discipline.March2014.pdf, PDF, 22KB)

COA: Sept. 5, 2014 Minutes ( 797-819): applicability of immunity defenses to claim against state trooper for malicious prosecution; and service on wife not good enough for jurisdiction for default judgment

The Kentucky Court of Appeals announced 23 decisions  on Sept. 5, 2014, with one case published (criminal law).  Our tort report of decisions of interest to Louisville and Kentucky injury attorneys dealing with torts, insurance and civil procedure include: malicious prosecution and applicability of governmental immunities available to arrest by state trooper; and setting aside default judgment when shown no service and thus no jurisdiction on named defendant (wife not count!).

2014.08.Boyle.First PO In West Star.IMG_9938

Another first for Danville, Kentucky. “First US Post Office in the West 1792″. Marker outside of Boyle County Court House.

There was one published case:

802.  Criminal Law;  Search and Seizure
Brandon Spann vs. Commonwealth of Kentucky
Graves County
9/5/2014, Affirming
Capterton, PJ

“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.

The Tort Report – Selected decisions this week on tort, insurance and civil law (continue reading).

COA: September 2014 Oral Argument Calendar for Court of Appeals – prevailing rate rule; Unfair Claims Settlement Practices Act violations; proof of damages; costs and the prevailing party; bank trustee and breach of fiduciary duty; are medical exams restricted in number in workers comp cases?; denial of arbitration by trial court in personal injury claim reviewed

Kentucky Court of Appeals will hear oral arguments for September 2014.

2014.09.Boyle.First Const Convention in west 1792 Star.IMG_9937

Danville, Kentucky City of Firsts. First Constitutional Convention in the West 1792. Marker outside Boyle County Court House.

Some of the issues to be addressed are as follows:  prevailing rate and the concept of “work incident to trade” 9/9/2014; verdict against insurer for violations of Unfair Claims Settlement Practices Act following 8-day trial appealed 9/9/2014); whether trial court erred in holding that there was insufficient proof of damages in the contract after jury awarded same and whether there was sufficient proof to submit the tort claims to a jury 9/9/2014; whether trial court erred in awarding costs to prevailing party 9/9/2014; appeal from Circuit court holding that the ethics commission violated the contemporaneous construction doctrine and rule of lenity 9/10/2014; police officer tried to purchase retirement time for his military service 9/10/2014; breach of bank trustee’s fiduciary duty 9/23/2014; foreclosure and unjust enrichment 9/24/2014; workers compensation provide for unrestricted medical examinations? 9/24/2014; adverse possession and permission 9/30/2014; did trial court property deny arbitration in personal injury case? 9/30/2014.

For a link to the archives of all oral argument calendars organized by year and month for the COA, then click here.

Complete Kentucky Court of Appeals’ schedule for oral arguments in August 2014 with dates, locations, counsel, issues, etc. can found below by “continue reading”