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).

Whether an action has been timely revived is a matter of law. Since Conner died on August 13, 2011, the deadline for reviving the action was August 13, 2012. In this case, an executor for Conner’s estate was duly appointed and the estate was admitted to probate. However, timely application to revive the civil action against Conner’s representative was not filed. As stated in the trial court’s order, “[a]bsent the showing of some act or conduct which misleads or deceives the plaintiff . . . the action must be dismissed. Munday v. Mayfair Diagnostic Laboratory, 831 S.W.2d 912, 914 (Ky. 1992).”

Whether an action has been timely revived is a matter of law. Since Conner died on August 13, 2011, the deadline for reviving the action was August 13, 2012. In this case, an executor for Conner’s estate was duly appointed and the estate was admitted to probate. However, timely application to revive the civil action against Conner’s representative was not filed. As stated in the trial court’s order, “[a]bsent the showing of some act or conduct which misleads or deceives the plaintiff . . . the action must be dismissed. Munday v. Mayfair Diagnostic Laboratory, 831 S.W.2d 912, 914 (Ky. 1992).”

Regarding the equitable estoppel argument,

The essential elements of equitable estoppel are: (1) conduct which amounts to a false representation or concealment of material facts . . .; (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; and (3) knowledge, actual or constructive, of the real facts. And, broadly speaking, as related to the party claiming the estoppel, the essential elements: (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. 28 Am.Jur.2d Estoppel and Waiver § 35. See also Smith v. Howard, 407 S.W.2d 139 (Ky. 1966).

Allen did not make the required showing. She did not demonstrate that either Ohio Casualty or its counsel knew and concealed the truth from anyone. On the contrary, the record reveals that Harp-Bevin and Attorney Sage first learned of Conner’s death on November 14, 2012, and that they promptly shared that information with opposing counsel and the court. Without doubt or dispute, counsel fulfilled his ethical obligation. Harris v. Jackson, 192 S.W.3d 297, 305 (Ky. 2006). Furthermore, nothing in the correspondence or representations made by Harp-Bevin suggests that she intended to lull Allen into inaction. Harp-Bevin had no reason to check – and was certainly under no duty to investigate – whether Conner remained alive from day to day. Despite Allen’s contentions, Harp-Bevin had no obligation to Allen that entailed any legal or ethical consequence. Gailor v. Alsabi, 990 S.W.2d 597 (Ky. 1999).

Contrary to Allen’s assertions, the trial court correctly applied the court’s holding in Burke v. Blair, 349 S.W.2d 836 (Ky. 1961). Burke holds that a party who has induced another party not to act “by his false representations or fraudulent concealment[,]” cannot assert the statute of limitations. Id. Burke continues: However, the fraudulent action must be of a character to prevent inquiry or elude an investigation or otherwise mislead the party having cause of action, and such party is under the duty to exercise reasonable care and diligence. See 53 C.J.S. Limitations of Actions § 25. Id. Harp-Biven did absolutely nothing that would rise to the level of fraud or that would have prevented Allen from investigating whether her civil action remained viable from year to year.

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