Case Notes: Wrongful death claim accrued from date no later than defendant’s indictment (Flick vs. Estate of Christina Wittich; COA Published 2/6/2015)

Harlan County Court House, 1886. Photo from old postcard captured by Keith Vincent.  These and others can be found at his web site for all 50 states!  www.CourtHouseHistory.com

Harlan County Court House, 1886.
Photo from old postcard captured by Keith Vincent. These and others can be found at his web site for all 50 states! www.CourtHouseHistory.com

FLICK (MICHAEL JOSEPH)
VS.
THE ESTATE OF CHRISTINA WITTICH
COA, Published 2/6/2015
OPINION REVERSING AND REMANDING
MAZE (PRESIDING JUDGE); KRAMER (CONCURS) AND J. LAMBERT (DISSENTS AND WILL NOT FILE A SEPARATE OPINION)

MAZE, JUDGE: Michael Joseph Flick appeals from a judgment of the Fayette Circuit Court finding him liable for the wrongful death of Christina Wittich andawarding compensatory and punitive damages to Wittich’s Estate. Flick primarily argues that the trial court erred by denying his motion to dismiss because the complaint was filed beyond the one-year statute of limitations for wrongful death provided under KRS 1 413.140(1). We conclude that the cause of action against Flick accrued no later than the date of his indictment, and, by operation of KRS 413.180, the Estate had two years from that date to bring the complaint. Since this action was not brought within that time, the trial court erred by denying the motion to dismiss. Hence, we reverse the judgment and remand for entry of an order dismissing the complaint.

* * *

As noted above, it is well-established that an action for wrongful death is subject to the one-year statute of limitations in KRS 413.140(1). Conner, 834 S.W.2d at 653-54. Under KRS 413.180, the action must have been brought within one year from the appointment of the personal representative, but not more than two years from the date the cause of action accrued. KRS 413.190 allows the limitations period to be tolled for any period that the defendant “abscond[s] or conceal[s] himself or by any other indirect means obstructs the prosecution of the action ….” Thus, the statute of limitations did not accrue until the Estate knew or had reason to know of both the injury (Wittich’s death), and that it may have been caused by Flick’s conduct. Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 819 (Ky. 1991).

* * *

Given the facts of the current case, we need not decide the precise date when the cause of action accrued. But under the circumstances, we conclude that the Estate had to know of its claim against Flick no later than the date of the indictment. At that point, the grand jury found probable cause to charge Flick with the murder. Furthermore, the grand jury was not bound by any prior probablecause determination in district court. Commonwealth v. Yelder, 88 S.W.3d 435, -7-437 (Ky. App. 2002). Thus, the Estate had until no later than July 18, 2007, to bring this action. The court in DiGiuro reasoned that the limitations period should be tolled because any civil claim would have to be stayed until the defendant was convicted of the murder. However, the Kentucky Supreme Court has recognized that certain civil claims may have to be brought before the related criminal charges are resolved. See Dunn v. Felty, 226 S.W.3d 68 (Ky. 2006), holding that the statute of limitations for false imprisonment accrues upon termination of the wrongful imprisonment, rather than on the date when the criminal charges are dismissed. Id. at 73-74. In such cases, the civil claim should be held in abeyance pending the outcome of the criminal trial. Id. at 74. We also note that Lambirth filed his civil claim against Flick within one year of the assault, although the action was held in abeyance until after Flick was convicted. Flick v. Lambirth, 2010 WL 4740292 (Ky. App. 2010)(2009-CA-001679-MR), at *3. We see no reason to apply a different standard to the current case.

Continue reading below for full text of this decision.

Case Notes: Watch out for the 1 year Statute of Limitations and Premises Liability – Landel vs. The Kroger Company (COA NPO 1/16/2015)

Not actual parking lot in this case.  Used solely for illustrative purposes.

Not actual parking lot in this case. Used solely for illustrative purposes.

The one-year state of limitations for most torts may be the law, and may work in many cases, but it can be way too short in this era of trying to figure out who the proper party is in this complex world of hide the ball from the Plaintiff.  The recent Court of Appeals’ decision in Landel vs. Krogers out of Russell County demonstrates this in relationship to whose parking lot is it anyway.

In this case, Vickie Landel was a Kroger customer who fell and injured herself in the parking lot.  She filed suit against Krogers since it was the parking lot outside of the Krogers’ store.  She fell on March 10, 2011, and filed her original complaint on November 2, 2011, but sought to amend the complaint to add the shopping center on March 21, 2012 – just eleven days after the one year anniversary and the expiration of the statute of limitation.  The shopping center obtained summary judgment dismissing the complaint against it for untimely filing (SOL), and Krogers obtained a dismissal of the complaint since it had no duty over the parking lot.

The plaintiff Landel claimed she did not know the identity of the shopping center, but Krogers had notified her by letter that the shopping center was responsible and provided her a copy of the lease.

Before discussing the issue of tolling as raised by the plaintiff in this case, let us take a look at some lessons to be learned in this case and those of a similar nature.

The identity of the “real” plaintiff can be difficult in the commercial context, and the identification of the real party can be fatal.  Most Krogers’ stores, however, have the actual name of the owner of the store location in black letters on the window near the door.  The name of the entity can be confirmed at the Secretary of State for the proper name for the style and the proper person for service.  However, this does not get you past possible problems, such as a the dangerous condition of the floor was the work of a vendor (eg., the Brown Hotel case and indemnity), or the mats were placed and cleaned by a contractor, or as in this case the parking lot is not the store’s responsibiilty.    The solution, unfortunately, is “fast filing with fast followup” since delay and deny and do nothing by the defendant does not inure a benefit to the plaintiff.

Some useful techniques for getting around this improperly denominated party defendant are:  correcting a misnomer “, and CR 15.03 involving relation back of amendments (eg., nexus between corporations and/or subsidiaries and the relating back (An amended pleading that changes or adds defendants only relates back to the filing of the original pleading when (1) the claim in the amended complaint arose out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the new party received notice of the institution of the action so that he will not be prejudiced in asserting his defense; and (3) the new party knows or should have known that without the mistake concerning identity, the action would have been brought against him. CR 15.03. party relates back.”  Within this context, I would have suspected that Krogers would have notified it lessor of the lawsuit (and thus notice under 15.03(2)(a) who would have know from the filing of the original complaint that they/shopping center would have been the proper party.

However, these outs are not an adequate solution to what I believe are the real problems: a. who they are may not be who you think they are with a name hidden in corporate names, agreements; and b. the insurer/insured may not be forthright about the correct identity of the responsible party (delay has its benefits, especially as the statute’s expiration approaches; and c. the  one-year is just too darn short when you have ten years for written contracts with the defendant usually self-evident, but with defective products made in China and distributed under other’s names).

The solution? Some are file soon, notice the corporate-representative for his/her deposition per CR 30.02(6).  The better solution is a longer statute of limitations with an easier tolling/relation back doctrine to avoid hide the ball and to allow the potential of resolving these cases short of suit.  One year.  Seriously!

For other posts on this blog about the statute of limitations, click here.

INSURANCE & STATUTE OF LIMITATIONS: Second Panel of COA holds statute of limitations for UIM underinsured motorist benefits ACCRUES from date insurer denies the claim and not based upon date of accident of last PIP payment (Hensley v. State Farm, COA Published 8/15/2014)

Court of Appeals has now held in a second published decision that  the statute of limitations on a UIM claim begins to run when the insurer denies a claim for UIM coverage.  I have addressed this issue of accrual multiple times over the years in this blog and my earlier blog the Kentucky Law Review, all to no avail.  Click here for my most recent commentary which addresses some additional practical reasons in support of the decisions in Riggs and Hensley below.

When applying the statute of limitations to a contract action sounding in tort you are presented with a hybrid  of analytical frameworks, neither of which seem to look at it from the insured’s perspective – eg. tort law for car collisions (2 years from date of accident or date of last pip payment, whichever is later) vs. contract (written contracts are 15  years) coupled with the fuzzy standard that an insurance company can unilaterally shorten the period if it is reasonable and not a violation of public policy.  We  now have the Court of Appeals taking a look at the rules and conditions behind the statute of limitations and applying both common sense and legal analysis.

Supreme Court Justice John Marshall Harlan, born in Boyle County.  Marker outside of court house in Danville, Kentucky.

Supreme Court Justice John Marshall Harlan, born in Boyle County. Marker outside of court house in Danville, Kentucky.

In order to be time barred, you need a start date and and end date.  The end date is clear – suit filed, yes or no?  Start date until now has been applied illogically since the start date for a tort action is not the same as a contractual action, especially a contractual action premised upon an accrual date that has no reasonable relationship with the underlying tort.

Two panels and four Court of Appeals judges get it.  The first panel held  that the the contractual provisions of an insurance policy requiring any action for UIM benefits must be brought within 2 years of accident or last PIP payment paid was unreasonable (see, Riggs v. State Farm Mut. Ins. Co. , COA Published 7/19/2014 (Judges Acree writing the majority joined by Judge Taylor, with Judge Vanmeter dissenting), pending discretionary review 2013-SC-000555).  Counsel for Mr. Riggs is Louisville personal injury attorney Timothy McCarthy; counsel for State Farm at the Supreme Court is David Klapheke.

DEFENSES: Statute of limitations applied to legal negligence claim, date of discovery vs. date of occurrence (BDT Products vs. Higgs, Fletcher & Mack, COA NPO 12/13/2013)

Legal Malpractice. Statute of Limitations.
BDT Products, Inc. vs. Higgs, Fletcher & Mack
12/13/2013 COA NPO
Following a careful review, we find the circuit court erred when it concluded that BDT’s legal negligence complaint was timely filed within the applicable one- year statute of limitations. Accordingly, we reverse that portion of the circuit court’s May 24, 2011 order and remand for entry of an order consistent with this opinion (2011-CA-001131). Likewise, we affirm the circuit court’s August 1, 2011 order on statute-of-limitations grounds (2011-CA-001475). Because resolving the cross-appeal is dispositive of all other issues, BDT’s remaining direct appeal, 2011-CA-001088, is denied as moot.

SOL: COA decision holding that the last PIP payment actually made or reissued is the last date for SOL purposes (even if mistakenly stated by the reparations obligor and relied upon by the injured insured) is pending MDR before SCOKY. (Beaumont vs. Muluken, COA, NPO 6/28/2013)

oops ur sol

Beaumont vs. Zeru Muluken, COA, NPO, 6/28/2013 (pending motion for discretionary review before the Kentucky Supreme Court) produces a horrendous result with the clear and succinct analysis found in the dissent rather than the majority opinion.  To follow the status of the MDR, click here for the case information page at the Court of Appeals.

Basically, the Court of Appeals held that a claimant receiving personal injury protection benefits cannot rely upon the assertion, even if mistaken, by the reparations obligor aka PIP insurer for the last date of PIP payment upon which to calculate the statute of limitations.  In this case, the PIP carrier notified the insured’s attorney by letter (not ledger) that the last pip payment was a certain date, and suit was timely filed based upon that date.  But, and this is a big but, it later turns out that the date the reparations obligor stated in their letter was not the last date of PIP payment but rather the date a check was RE-issued to a provider (the assumed name of a provider).   The same entity but a different name.

My practice has been typically to write the reparations obligor to confirm in writing the last date of the PIP payment and letting them know that I am relying upon that date for statute of limitations (SOL) purposes.  If one cannot rely upon anything from the insurer after the two year anniversary of the car collision, then the rule is simple – file before the two year anniversary and kick the cases to a litigious posture.

I also write for confirmation because not every insurer provides a complete and understandable PIP ledger delineating the date of payments, whether PIP or med-pay,  or even a ledger at all!

COMBS, JUDGE, DISSENTING: The reasoning of the majority opinion is persuasive in its reliance on Wehner v. Gore – albeit an unpublished opinion. Nonetheless, I must dissent because there is an additional factor in the case before us that distinguishes it from all other pertinent precedent. That element is the affirmative representation by letter dated July 29, 2010, by Cincinnati Insurance that the last PIP payment had been made by the issuance of the check of September 25, 2009, to Kentucky Orthopedic Rehab Team, LLC.

Beaumont timely filed her lawsuit in legitimate reliance on the date that could only be provided by Cincinnati Insurance. Date of payment is not involved (and need not be) since the question posed and answered was date of issuance of the final check. That is the sole question before us.

Sound and time-honored principles of estoppel should apply to prevent Cincinnati Insurance from denying this critical representation. The case should be permitted to proceed.

And now a word from the majority:

MOORE , JUDGE: Bonita Beaumont appeals the Jefferson Circuit Court’s dismissal of her personal injury claims against Muluken Zeru in this automobile accident case. At issue is whether Beaumont’s complaint was timely filed under Kentucky Revised Statutes (KRS) 304.39-230(6), which specifies in pertinent part that a tort action must be filed within two years after the last payment made by a reparations obligor. 

The pertinent provision of the Kentucky Motor Vehicle Reparations Act, (KMVRA) provides that “[a]n action for tort liability not abolished by KRS 304.39-060 may be commenced not later than two (2) years after the injury, or the death, or the last basic or added reparation payment made by any reparation obligor, whichever later occurs.” KRS 304.39-230(6). Thus, if the last payment made was the August 13, 2009, check to Jewish Hospital, Beaumont’s action is barred as untimely; if it was the reissue of the check on September 25, 2009, her action may proceed.

An almost-identical argument was addressed and rejected by a panel of this Court in an unpublished opinion, Wehner v. Gore, 2006 WL 2033894 (Ky. App. 2006) (2005-CA-000689-MR). In that case, the claimant Wehner’s reparations obligor, State Farm Insurance Company, paid the last PIP payment to Nicholasville Road MRI on December 13, 2000. This last payment exhausted Wehner’s PIP benefits. The check to MRI was either not received or lost, and MRI asked State Farm to reissue the check. State Farm issued a new check on August 13, 2001. Wehner filed her complaint on July 14, 2003, more than two years after the first check to MRI was issued.

In reliance on Wilder, the opinion held that her suit was untimely, because the date a check is received or deposited has nothing to do with the date of final payment. Final payment is the date the last check is cut, dated, or “made.” That date was December 13, 2000. The August 13, 2001, check was not a check “made” for additional services, but a replacement check between MRI and State Farm.

Although we are not bound by the holding of this unpublished opinion, we see no reason to deviate from its reasoning. Although it is unfortunate that Cincinnati Insurance provided the date of the reissued check as the date of final payment in responding to Beaumont’s attorney’s inquiry, the PIP ledger shows a total amount paid of $10,400, which should have prompted further inquiry into the sequence of payments.

The order of dismissal is therefore affirmed. TAYLOR, JUDGE, CONCURS.

 

Of UIM, Statutes of Limitation and Gordian Knots. Riggs v. State Farm Holds Contractual limitation for Underinsured Motorist Claim Matching Up with Tort Claim is Unreasonable.

Alexander Cuts the Gordian Knot

Alexander Cuts the Gordian Knot

Court of Appeals held that State Farm’s contractual limitation in the automobile insurance policy requiring any action for underinsured motorist (UIM) benefits be brought within two years of the date of the injury or the last reparation benefits paid, whichever is later,  was unreasonable.  Thus, the contractual limitation period fell back to fifteen years.

This is an interesting decision, and a must read for all personal injury lawyers.  It highlights a problem I have noted for years that inherent nature of underinsured claims being married to the underlying tort claim not only creates a hybrid cause of action, but worse produces an unfair and unreasonable result.

The key problem for me is the accrual date of the cause of action.  This applies with equal logic to claims for uninsured motorist benefits.

The underlying tort’s statute of limitations based upon two years from MVA or last PIP payment, whichever is later, is already an artificial condition if the purpose of a limitations of action bar is to let tortfeasors know when they are no longer subject to being hauled into court.  The statute of limitations removes this dark cloud.  However, when the statute of limitations is placed under the microscope in car accident cases which ties the accrual date to date of the collision which the tortfeasor would/should know, but then has the plan B move of hitching it to the last pip payment, then the tortfeasor has no clue when it’s over.

Worse  yet, the injured person has no clue either for several reasons.

One – they clearly do not know the limitation under the no fault act.

Two – figuring out the last pip payment is now becoming a journey into Dante’s inferno with each circle never ending, never stopping, never starting.

Three – reading the PIP ledger or explanation of benefits is difficult for those who know.  Imagine for those who are not legally inclined?  Plus, getting the PIP ledger is proving a difficult task where some carriers require you to go on-line, mix the payments up between med-pay and PIP.  Add the burden that many PIP carriers do not provide logs but just an endless stream of  EOB’s (explanation of benefits) with payments, dates, and reasons for payment or nonpayment obscuring the critical information.

Now, flip it over for the tortfeasor who does not even have access to the injured claimant’s PIP information.

The statute of limitations in car accident cases is truly a mystery wrapped up in an enigma hidden in plain sight by those who have no incentive to update their insured.  In fact, the PIP carrier has an incentive to keep it buried since the same statute of limitations period applies to the PIP claims!  Remember, a closed file is a happy file, or so says many of the adjusters I have dealt with over the years.

The above rambling discourse should highlight the difficulties encountered in calculating the statute of limitations for just the tort claim.

Now, multiply that by ten for the underinsured motorist claim.

The key to any statute of limitations is the bright line start date.  Well, this does not work for UIM claims.

First.  The tort claim is in tort, and the UIM claim is in contract.  Just because you are hurt in a collision and have a rather clear starting point for filing an action against the tortfeasor even when  you don’t know the last PIP payment, that date has no applicability for when you know or have reason to know of your UIM claim.

Second.  When do you know or should know you have a UIM claim?  a.  The liability insurer resists telling the injured person the policy limits which is by most reckoning a condition precedent for knowing the tortfeasor’s liability limits are inadequate.  b.  When do you know your injuries and damages exceed those liability limits even when you are told of those limits?  It’s not unusual for the true understanding of the value of the claim is not revealed but for the passage of time, treatment, and temperment.

Now, I will share something with you that you might find irritating.  I read the ruling in this decision, but have not read anything after that holding.  My analysis above reflects views I have had for years.

A UIM claim is a hybrid.  Ditto for the uninsured claim.  It is one thing to measure the damages based upon the underlying tort case as it follows negligence, liability, causation, and winds up at damages.  And since an underinsured motorist claim does not accrue until there is reason to believe your damages exceed the heretofore unknown liability limits, then there is absolutely no reason to permit a contractual limitation on this claim since any artificial limitation for filing an action is inherently unreasonable.

Of course, the uninsured motorist claim has an entirely different condition precedent for kicking in the UM claim.  Not damages, but an uninsured motorist.  However, the complexity of this situation is evident in the fact of owners versus operators with potentially different liability policies in play;  business owners and scope of employment issues;  coverage questions; lapsed policies; new policies; incomplete information on the police report; and the list goes on and one.

The UIM claim does have a potential detour, to wit: liability settlement and the Coots procedures.  However, this is no saving grace for UM policies.

The UIM and UM statute of limitations is an insurance Gordian knot, and the legislature or the courts with their inherent common law powers and the application of jural rights serving as Alexander’s sword cutting through this knotty situation and providing a clear ruling.  Methinks, we have found our Alexander in guise of Court of Appeals Judge Acree.

Now might be a good time to parse this ruling with three opinions.

BTW.  This is my first draft, no re-read, and it’s late;  but, I think you can follow my points through all this meandering.

Download (PDF, 143KB)

STATUTE OF LIMITATIONS, TOLLING, DOES THE DISCOVERY RULE APPLY RE THE PROPER DEFENDANT? Bland v. City of Mt. Washington, COA, NPO, 7/13/2012

The following unpublished decision by the Court of Appeals offers some black letter law on the accrual of a tort claim applying the discovery rule on a premises liability case.  Note the claimant fell in an obscure hole believing it was under the control of the school but discovery after a year had passed that it contained a release value maintained by the City.  Alas, there is the problem regarding suit against the proper party and failing to commence the cause of action within one year of the fall.  The claimant asserted that suit was filed within one year of her discovering who did maintain the hole and the air valve (which she did not note at the time of her fall or later when she and her husband examined the hole on the school property).

590.  STATUTE OF LIMITATIONS. DISCOVERY.
BLAND (MARY)
VS.
CITY OF MT. WASHINGTON , ET AL.
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
LAMBERT (DISSENTS AND FILES SEPARATE OPINION) AND MOORE (CONCURS)
2011-CA-001239-MR
NOT TO BE PUBLISHED
BULLITT

CAPERTON, JUDGE: The Appellant, Mary Bland, appeals from a personal injury action in which the trial court entered a directed verdict on the issue of notice at the close of her case against the Appellee, City of Mount Washington. The final order entered by the court added additional grounds for dismissal that had previously been rejected via motions for summary judgment. This appeal followed. Upon review of the record, the arguments of the parties, and applicable law, we affirm.

To that end, we are in agreement with the court‘s conclusion, based upon the evidence of record, that Bland made no effort to remove the debris from the bottom of the hole or to conduct any additional research as to the owner of the hole or its purpose. We disagree with Bland’s argument that because the hole had grass and debris around it, the identity of the owner was “obstructed” as that term has been defined by our courts. Further, we are in agreement with the court below that a simple and routine title examination would have identified the owner of the hole. Indeed, prior to the expiration of the statute of limitations, Bland could have hired individuals to more thoroughly examine the hole with permission from the court and property owner, conducted title examinations, taken depositions or otherwise make efforts to ascertain the party responsible for the hole. While the pictures submitted by Bland showed the condition of the hole at ground level, we are not persuaded by her argument that these pictures amount to evidence of due diligence in this matter. Accordingly, we find no factual issue on the matter relating to the statute of limitations and affirm the granting of a directed verdict on this issue.

Upon finding that the statute of limitations is applicable to this matter, we turn now to Bland’s argument that Mount Washington should be estopped from asserting the statute of limitations. Bland argues that Kentucky law favors tolling a limitations period when the defendant cannot be identified by virtue of the defendant’s conduct. She asserts that in this case, Mount Washington concealed its identity, albeit perhaps unintentionally, by virtue of its neglect of the hole such that its ownership could not be identified upon inspection.

STATUTE OF LIMITATIONS, TOLLING AND DISCOVERY RULE:

Bland also argues that Kentucky has adopted the discovery rule for those who act with due diligence, and that the discovery rule is applicable to this matter. She argues that the discovery rule, set forth in Kentucky Revised Statutes (KRS) 412.140, delays accrual of the statute of limitations until discovery takes place, or reasonably should have taken place.

Concerning the applicability of the discovery rule to this case, Mount Washington asserts that it clearly does not apply and asserts that Kentucky law mandates its use only when injuries are latent. Mount Washington states that in this instance Bland was immediately aware of her injury and began medical treatment shortly thereafter. Mount Washington argues that the evidence submitted by Bland indicates that she did no investigation to determine the reason for the hole’s placement or the contents of the hole, either of which would have led her to determine if it was a utility. Mount Washington asserts that Bland did not attempt to speak to anyone at the school to determine the hole’s ownership.

In addressing this issue, we note that KRS 412.140, the “discovery rule,” states in pertinent part that:

(1)The following actions shall be commenced within one (1) year after the cause of action accrued:

(a)An action for an injury to the person of the plaintiff ….

In Hazel v. General Motors Corporation, 83 F.3d 422 (6th Cir. 1996), the court explained Kentucky’s discovery rule as follows:

Kentucky’s discovery rule provides that a cause of action does not accrue until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, both his injury and the responsible party. This rule is designed to protect the blamelessly ignorant plaintiff from losing the right to recover for an injury during the period in which the injury may remain inherently unknowable to the plaintiff. The typical scenarios for the application of the rule include medical malpractice and latent disease cases. Plaintiff argues that he had no reason to know that the design of the fuel system may have caused his injury until he watched the “Dateline” segment years later and that the cause of action did not accrue until that time.

Id. (internal citations omitted).

While Bland attempts to rely upon this case as support for her assertion that the discovery rule applies to her case, we disagree. We note that in McClain v. Dana Corporation, 16 S.W.3d 320 (Ky. 2000), this Court, in discussing the discovery rule, held that:

The discovery rule does not operate to toll the statute of limitations to allow an injured plaintiff to discover the identity of the wrongdoer unless there is fraudulent concealment or misrepresentation by the defendant of his role in causing the plaintiff’s injuries. A person who has knowledge of injury is put on “notice to investigate” and discovery, within the statutory time constraints, the identity of the tortfeasor.

Further, we note that, as stated by our Supreme Court in Fluke Corp. v. Lemaster, 306 S.W.3d 55, 60 (Ky. 2010):

The discovery rule is available only in cases where the fact of injury or offending instrumentality is not immediately evident or discoverable with the exercise of reasonable diligence, such as in cases of medical malpractice or latent injuries or illnesses.

Sub judice, there was no question that Bland knew she had fallen into a hole, and that the fall was directly responsible for her injury. Bland immediately sought treatment for the injury, and shortly thereafter filed suit against the Bullitt County Board of Education. There was nothing latent about her injury, nor was the instrumentality hidden or unable to be discovered with the exercise of reasonable diligence.

To that end, we are in agreement with the court‘s conclusion, based upon the evidence of record, that Bland made no effort to remove the debris from the bottom of the hole or to conduct any additional research as to the owner of the hole or its purpose. We disagree with Bland’s argument that because the hole had grass and debris around it, the identity of the owner was “obstructed” as that term has been defined by our courts. Further, we are in agreement with the court below that a simple and routine title examination would have identified the owner of the hole. Indeed, prior to the expiration of the statute of limitations, Bland could have hired individuals to more thoroughly examine the hole with permission from the court and property owner, conducted title examinations, taken depositions or otherwise make efforts to ascertain the party responsible for the hole. While the pictures submitted by Bland showed the condition of the hole at ground level, we are not persuaded by her argument that these pictures amount to evidence of due diligence in this matter. Accordingly, we find no factual issue on the matter relating to the statute of limitations and affirm the granting of a directed verdict on this issue.

Upon finding that the statute of limitations is applicable to this matter, we turn now to Bland’s argument that Mount Washington should be estopped from asserting the statute of limitations. Bland argues that Kentucky law favors tolling a limitations period when the defendant cannot be identified by virtue of the defendant’s conduct. She asserts that in this case, Mount Washington concealed its identity, albeit perhaps unintentionally, by virtue of its neglect of the hole such that its ownership could not be identified upon inspection.

Concerning Bland’s argument that negligence can be imputed to Mount Washington, it again asserts that there was a complete absence of proof to support this charge. Mount Washington asserts that there was no evidence submitted to establish that it had any knowledge of the missing meter cover or air release valve prior to the time that Bland stepped into the hole. Additionally, Mount Washington argues that there is no evidence that it failed to exercise the appropriate care in maintaining the cover in a reasonably safe condition and indeed, asserts that immediately after obtaining knowledge that the cover was no longer on the hole, had it replaced.

In addressing this issue we note that KRS 413.190(2) provides as follows:

When a cause of action mentioned in KRS 413.090 to 413.160 accrues against a resident of this state, and he by absconding or concealing himself or by any other indirect means obstructs the prosecution of the action, the time of the continuance of the absence from the state or obstruction shall not be computed as any part of the period within which the action shall be commenced.

The law in this Commonwealth is clear that by either statutory or equitable estoppel, the actions taken by Mount Washington must have been calculated to mislead or deceive, and to induce inaction by the party. See Adams v. Ison, 249 S.W.2d 791 (Ky. 1952). As the Court stated in Fluke, the essential elements of equitable estoppel require appellants to show:

(1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (3) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice.

Id. at 62 (citing Sebastian-Voor Properties, LLC v. Lexington-Fayette Urban County Government, 265 S.W.3d 190, 194-95 (Ky. 2008)).

Sub judice, there was simply no evidence that Mount Washington took any action to mislead or deceive Bland, nor any evidence to suggest that the utility company did anything to prevent discovery of the true owner of the air release valve. Accordingly, we decline to reverse on this basis.

Medical Negligence Statute of Limitations not tolled for continuous course of treatment (Litsey v. Allen, COA, Pub., 6/1/2012)

Retired (and Senior Judge) Joseph Lambert’s decisions are almost always a breath of fresh air in succinctness, analysis, and lack of extraneous issues.  In the following decision, Senior Judge Lambert addressed the applicability of the tolling provision to medical malpractice cases arising from the “continuous course of treatment.”  In this case, the patient had alleged inappropriate sexual advances by her treating physician during the putative tolling period, and claimed that the Xanax prescriptions impaired her ability to exercise proper judgment about her course of treatment and his misconduct.  As stated by the COA —

However, in her deposition, Litsey testified that she had “no doubt” that Dr. Allen’s conduct was inappropriate at the time she left his office on August 27, 2007. Although Litsey continued to have her prescriptions renewed by Dr. Allen after that date, she does not allege that she was relying on him to correct the consequences of poor treatment. This is not a case for the continuous course of treatment doctrine, and there was no tolling of the statute of limitations.

485. STATUTES OF LIMITATION.  MEDICAL NEGLIGENCE (CONTINUOUS TREATMENT AND TOLLING ADDRESSED)
LITSEY (DEVON)
VS.
ALLEN (JACK), ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
DIXON (CONCURS) AND VANMETER (CONCURS)
2010-CA-001777-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, SENIOR JUDGE: Devon Litsey appeals from a summary judgment of the Jefferson Circuit Court dismissing her claims against Jack Allen, M.D., his medical practice Gray & Allen, P.S.C. (collectively, “Dr. Allen”) and his insurance carrier, State Farm Fire and Casualty Company (State Farm). Litsey argues that the trial court erred by holding that her claims for malpractice and intentional infliction of emotional distress were barred by the one-year statute of limitations in KRS 413.140(1)(e). We agree with the trial court’s conclusion that Litsey’s claim for malpractice was not tolled following her last visit with Dr. Allen, and that her claim for intentional infliction of emotional distress was subject to the one-year limitation period.

With respect to the medical malpractice claim, KRS 413.140(1)(e) provides that “[a]n action against a physician, surgeon, dentist, or hospital licensed pursuant to KRS Chapter 216, for negligence or malpractice[]” “. . . shall be [brought] within one (1) year after the cause of action accrued[.]” Litsey admitted that her last visit with Dr. Allen occurred on August 27, 2007, more than one year prior to the filing of her claim. However, after her last visit, Litsey continued to have her prescriptions filled through Dr. Allen’s office until January of 2008. In addition, Litsey scheduled an appointment with Dr. Allen for January 17, 2008, but she did not keep the appointment. Litsey contends that the one-year limitation period was tolled by the “continuous course of treatment” doctrine and that the action filed in December of 2008 was timely.

In Harrison v. Valentini, 184 S.W.3d 521 (Ky. 2005), the Kentucky Supreme Court applied continuous treatment rule to medical malpractice cases. As applied, the “continuous course of treatment doctrine” provides that “the statute of limitations is tolled as long as the patient is under the continuing care of the physician for the injury caused by the negligent act or omission.” Id. at 524. (Footnote omitted). Since Litsey remained a patient of Dr. Allen’s until at least January of 2008, she maintains that her action filed in December of 2008 was timely.

In support of its decision, the Court in Harrison noted “that the trust and confidence [which] marks the physician-patient relationship puts the patient at a disadvantage to question the doctor’s techniques, and gives the patient the right to rely upon the doctor’s professional skill without the necessity of interrupting a continuing course of treatment by instituting suit.” Harrison, 184 S.W.3d at 524. By tolling the statute of limitations for medical malpractice, the continuous course of treatment doctrine gives the patient the right to rely upon the physician without interrupting treatment by instituting suit. The doctrine “also gives the physician a reasonable [opportunity] to identify and correct errors made at an earlier stage of treatment.” Id. at 524-25, citing Watkins v. Fromm, 108 A.D.2d 233, 488 N.Y.S.2d 768, 772 (1985). Consequently, the Court held that,

where a patient relies, in good faith, on his physician’s advice and treatment or, knowing that the physician has rendered poor treatment, but continues treatment in an effort to allow the physician to correct any consequences of the poor treatment, the continuous course of treatment doctrine operates to toll the statute of limitations until the treatment terminates at which time running of the statute begins.

Id.at 525.

In this case, Litsey alleges that Dr. Allen made inappropriate sexual advances to her on her last two office visits, March 29, 2007 and August 27, 2007. Litsey contends that her reliance on Dr. Allen for Xanax prescriptions impaired her ability to exercise proper judgment about her course of treatment and his misconduct. However, in her deposition, Litsey testified that she had “no doubt” that Dr. Allen’s conduct was inappropriate at the time she left his office on August 27, 2007. Although Litsey continued to have her prescriptions renewed by Dr. Allen after that date, she does not allege that she was relying on him to correct the consequences of poor treatment. This is not a case for the continuous course of treatment doctrine, and there was no tolling of the statute of limitations.

Statute of Limitations for car accidents is 2 years from accident or date last pip payment check is issued. Dickey v. Liberty Mutual, COA, NPO, 5/4/2012

Another reminder that the statute of limitations for automobile accidents under the No-Fault Act runs two years from the date of the accident or the last date of payment of pip benefits.  Date of payment is the date the check is issued by the reparations obligor; not the date it is cashed, not the date is received by the provider.  I would also assume the last date the pip check has been issued and not the date the check may have been reissued.

Here is the decision.  Not published.

386.  AUTOMOBILE ACCIDENT / NO FAULT STATUTE. STATUTE OF LIMITATIONS.
DICKEY (LISA)
VS.
LIBERTY MUTUAL INSURANCE COMPANY
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
ACREE (CONCURS) AND MOORE (CONCURS)
2010-CA-002320-MR
NOT TO BE PUBLISHED
FAYETTE

VANMETER, JUDGE: Lisa Dickey appeals from the Fayette Circuit Court order granting Liberty Mutual Insurance Company’s (“Liberty Mutual”) motion for a judgment on the pleadings and denying Lisa’s motion for partial summary judgment. For the following reasons, we affirm.

On July 4, 2005, Lisa was involved in a motor vehicle accident. Pursuant to her insurance policy with Liberty Mutual, Lisa received Personal Injury Protection (“PIP”) benefits. On March 23, 2007 and April 16, 2007, Lisa was treated for injuries resulting from the accident at Bauman Physical Therapy (“Bauman”). Liberty Mutual issued a check on October 5, 2007 to cover those expenses. The check was received by Bauman on October 12, 2007. Lisa received additional treatment on October 9, 2009 by Clayton Elswick, D.C. Liberty Mutual denied payment for the treatment, claiming the statute of limitations on Lisa’s benefits had expired. On February 16, 2010, Lisa brought the underlying action seeking to recover costs of Dr. Elswick’s treatment from Liberty Mutual under her PIP claim.

KRS 304.39-230(1), a provision of the Motor Vehicle Reparations Act, states that if reparation benefits have been paid, an action for further benefits “may be commenced not later than two (2) years after the last payment of benefits.” This court previously held that the date of payment made by the PIP provider is the date the PIP provider issued the check. Wilder v. Noonchester, 113 S.W.3d 189, 191 (Ky.App. 2003) (citing Lawson v. Helton Sanitation, Inc., 34 S.W.3d 52, 57 (Ky. 2000)).

Lisa maintains Wilder is not controlling and relies on KRS 355.4A-401 to argue that the date of receipt of payment is the date of payment for purposes of the statute of limitations. However, KRS 355.4A-401 applies to “direct fund transfers, commonly known as ‘wire transfers’ between banking institutions, rather than payment of medical bills by drafts issued by insurers.” See Wilder, 113 S.W.3d at 191.

In the case at bar, the record demonstrates that Liberty Mutual issued its last check to Bauman on October 5, 2007 to cover Lisa’s treatment costs. Thus, Lisa’s claim for PIP benefits to cover her treatment on October 9, 2009 is more than two years from her last benefits payment and, thus, her claim is time-barred.

The order of the Fayette Circuit Court is affirmed. ALL CONCUR.

Timely filing of lawsuit met by mailing but nonetheless received at the clerk’s office on time but summons issued later (Helton v. Jerry’s Discount, COA, NPO, 11/23/2011)

1090. STATUTE OF LIMITATIONS.
HELTON (LISA)
VS.
JERRY'S DISCOUNT, INC
OPINION VACATING AND REMANDING
ACREE (PRESIDING JUDGE)
STUMBO (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000658-MR
NOT TO BE PUBLISHED
MENIFEE

ACREE, JUDGE: The issue before us is whether the Menifee Circuit Court erred when it determined that Appellant Lisa Helton’s personal injury complaint was filed outside the applicable one-year statute of limitations because, though Helton delivered the complaint to the Menifee Circuit Court Clerk within the requisite time period, the Clerk did not file the complaint nor issue the required summons until after the limitations period had expired. After careful consideration, we vacate the circuit court’s order dismissing Helton’s personal injury suit, and remand for further proceedings consistent with this opinion.

FACTS:

On January 19, 2009, Helton slipped and fell on ice outside the front door of appellee’s, Jerry’s Discount, Inc., convenience store in Menifee County, Kentucky. Helton purportedly suffered injuries as a result of her fall. Helton endeavored to commence a personal injury action against Jerry’s Discount in Menifee Circuit Court within the required one-year statute of limitations. KRS 413.140(1)(a).

On Friday, January 15, 2010, Helton mailed the complaint, filing fee, and summons to the Clerk via the United States Postal Service (USPS) express mail with delivery confirmation. The USPS confirmed delivery of Helton’s complaint to the Clerk’s office at 9:31 a.m. on Tuesday, January 19, 2010, the last day of the limitations period.2    However, the Clerk did not file the complaint or issue the required summons until Thursday, January 21, 2010, two days after the statute of limitations expired.

ANALYSIS:

“A statute of limitations limits the time in which one may bring suit after the cause of action accrues.” Coslow v. General Elec. Co., 877 S.W.2d 611, 612 (Ky. 1994). In order to survive a motion to dismiss, the plaintiff must commence his or her suit within the relevant statute of limitations period. Kentucky Rules of Civil Procedure (CR) 3.01 governs the commencement of civil actions, providing that “[a] civil action is commenced by the filing of a complaint with the court and the issuance of a summons or warning order thereon in good faith.” CR 3.01; see also KRS 413.250 (“[A]n action shall be deemed to commence on the date of the first summons or process issued in good faith from the court having jurisdiction of the cause of action.”). “Upon the filing of a complaint (or other initiating document) the clerk shall forthwith issue the required summons[.]” CR 4.01(1).

Historically, Kentucky courts have demanded strict compliance with the requirements set forth in CR 3.01. See DeLong v. DeLong, 335 S.W.2d 895 (Ky. 1960); Osborne v. Kenacre Land Corp., 65 S.W.3d 534 (Ky. App. 2001); Gibson v. E.P.I. Corp., 940 S.W.2d 912 (Ky. App. 1997). It is the plaintiff’s duty to ensure all appropriate steps have been taken to commence an action and, in line with this duty, the plaintiff is presumed to know the applicable statute of limitations. See Pospisil v. Miller, 343 S.W.2d 392, 394 (Ky. 1961). However, in Nanny v. Smith, 260 S.W.3d 814 (Ky. 2008), the Kentucky Supreme Court re- examined this issue.

In Nanny, the plaintiff desired to bring a personal injury action against the defendant arising out of a car accident. The applicable statute of limitations dictated the plaintiff had until Saturday, October 18, 2003, to file her personal injury suit. However, because the statute of limitations was set to terminate on a Saturday, the plaintiff actually had until Monday, October 20, 2003, to commence her action. On Friday, October 17, 2003, the plaintiff hand-delivered her complaint to the appropriate circuit court clerk. A time date stamp indicated the clerk received the plaintiff’s complaint on October 17, 2003, at 2:35 p.m. However, the clerk did not file the complaint or issue the required summons until Tuesday, October 21, 2003, one day after the statute of limitations expired. Consequently, the circuit court dismissed the plaintiff’s case.

On discretionary review, the Kentucky Supreme Court equitably tolled the statute of limitations because the clerk’s failure to file the plaintiff’s complaint and issue the required summons violated the mandates of CR 4.01(1) and exceeded the plaintiff’s control. Nanny, 260 S.W.3d at 818. Specifically, the court reasoned:
Once [plaintiff] delivered the complaint, she could reasonably expect that the summons would be issued within the statutory period. At that point, [plaintiff] had no further duty to ensure that the clerk [filed the complaint and] issued the summons within the limitations period. CR 4.01 (“[U]pon the filing of the complaint . . . the clerk shall forthwith issue the required summons and, at the direction of the initiating party, either” serve the summons and complaint by mail or transfer the summons and complaint to an authorized person for delivery and service); KRS 30A.030(1); Louisville & N.R. Co. v. Smith's Adm'r, 10 Ky. L. Rptr. 514, 87 Ky. 501, 9 S.W. 493, 495 (1888) (“[I]t is the official duty of the clerk to issue the summons in accordance with law, and it is not incumbent upon the plaintiff to see that he issues it in accordance with law.”). Nor did [plaintiff] have the power to compel the clerk to issue summons since, by statute, the clerk is under the supervision of the Chief Justice, not [plaintiff] or her attorney. KRS 30A.010(2).

Because [plaintiff] had neither the power nor the duty to ensure that the clerk perform official duties, she was prevented by circumstances beyond her control from having the summons issued in time. We believe that under these facts, [plaintiff] should not be held responsible for such circumstances. See Prewitt v. Caudill, 250 Ky. 698, 63 S.W.2d 954, 958-59 (1933) (upholding the petitioner's right to maintain an election contest on the basis that he was prevented by circumstances beyond his control from having the summons issued in time and that the delay in issuing the summons was due solely to the fault of the circuit clerk over whom the petitioner had no control).

Nanny, 260 S.W.3d at 817; see also Hagy v. Allen, 153 F. Supp. 302 (E.D. Ky. 1957) (applying Kentucky law, the federal court determined that, because the plaintiff had done everything possible to ensure her complaint was filed and summons issued before the statute of limitations expired, the plaintiff should not be punished for the clerk’s failure to perform her duties). The Kentucky Supreme Court acknowledged that “promptness in filing is essential to the proper function of the court system.” Id. at 818. However, under the facts of the particular case, the court reasoned that equity required the tolling of the statute of limitations. Id.

In the case sub judice, Helton contends that Nanny is directly on point and dispositive of her case. In response, Jerry’s Discount asserts Nanny provides a narrow exception to the hard-line rule requiring strict compliance with the statute of limitations and is factually distinguishable. Specifically, Jerry’s Discount attempts to distinguish Nanny, arguing that the plaintiff in that case had done everything in her power to ensure her complaint was timely filed, but Helton simply placed her complaint in the mail at the end of the statutory period and hoped it would reach the clerk’s office in time. We are not persuaded by that argument; we find Nanny to be factually similar to the case at hand and quite instructive.

Similar to the plaintiff in Nanny, Helton took reasonable steps to ensure her complaint was delivered to the clerk’s office prior to the expiration of the statute of limitations. Though Helton did not hand-deliver her complaint to the Clerk, she mailed her complaint via express mail with delivery confirmation four days before the statute of limitations expired. Additionally, via the USPS, Helton confirmed delivery of her complaint to the Clerk’s office at 9:31 a.m. on January 19, 2010, the last day of the limitations period. Therefore, just like the Nanny plaintiff, Helton knew the Clerk had received her complaint before the statute of limitations expired with ample time for the Clerk to file the complaint and issue the required summons. Nonetheless, for reasons unclear to this Court, the Clerk waited for two days after the limitations period expired to perform her duties.

As expressed by Justice Palmore, “common sense must not be a stranger in the house of the law.” Cantrell v. Kentucky Unemployment Insurance Commission, 450 S.W.2d 235, 237 (Ky. 1970). Once an attorney has timely delivered the complaint to the proper court clerk, the attorney’s job is complete. The power then shifts to the court clerk to promptly perform his or her required duties. See KRS 30A.010 et al. It would be manifestly unjust to punish an attorney, and in turn his or her client, for the clerk’s failure to adequately execute his or her responsibilities. To conclude otherwise would result in disparity in our legal system which can neither be condoned nor tolerated.

Because Helton “had neither the power nor the duty to ensure that the clerk perform official duties, she was prevented by circumstances beyond her control from having” her complaint filed and summons issued before the statute of limitations expired. Nanny, 260 S.W.3d at 817. Therefore, under these unique circumstances, the one-year statute of limitations is equitably tolled. Id.; see also Robertson v. Commonwealth, 177 S.W.3d 789, 791-92 (Ky. 2005) (recognizing the doctrine of equitable tolling is applicable when a party is plainly prejudiced by unavoidable circumstances beyond the party’s control despite the party’s due diligence).

Conclusion
The Menifee Circuit Court’s order dismissing Helton’s personal injury action is vacated and this matter is remanded for further proceedings in accordance with this opinion.
ALL CONCUR.