CIVIL PRO (REVIVAL): BATTS V. ILLINOIS CENTRAL RAILROAD CO. (COA 3/2/2007)

BATTS V. ILLINOIS CENTRAL RAILROAD CO.
Civil Procedure: Statute of Limitations; Appointment of Personal Representative
2005-CA-001594
PUBLISHED: REVERSING AND REMANDING; ABRAMSON
DATE RENDERED: 3/2/2007

Dale was appointed executrix of Charles’ estate on April 21, 2005, exactly one year to the day that he died. That same day she filed a motion in McCracken Circuit Court to revive a FELA claim against ICRC and be substituted as plaintiff. The clerk did not enter the order of appointment until May 10, 2005, and ICRC moved to dismiss on the grounds that Dale’s claim was barred by KRS 395.278, which mandates that an application to revive an action in the name of a representative or successor of the plaintiff shall be made within one year of the death of a deceased party. Because the order of appointment was not entered until May 10, ICRC claimed Dale did not have standing to move for revival of the FELA claim on April 21, 2005. The trial court agreed and dismissed Dale’s personal injury action against ICRC.

The CAs looked to CR 58, which provides that a clerk’s notation constitutes the entry of a judgment or order, and that order becomes effective at the time of such notation. But they also reminded ICRC of KRS 395.105, addressing when the appointment of a fiduciary becomes effective, i.e., "The appointment shall be effecitve with the signing of an order by the judge." Looking at this statute in combination with CR 1, which provides that "procedural requirements" in a statute shall take precedence over a conflicting rule, the CAs found that Dale’s appointment became effective on April 21, 2005, and that entry of the order by the clerk was not a prerequisite to her ability to assert her authority pursuant to the appointment. It examined Preece v. Adams, 616 S.W.2d 787 (Ky. App., 1980), and found its holding consistent with this, and reversed and remanded the trial court’s dismissal.

Digested by Cherry Henault

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