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Court of Appeals of Kentucky.


NO. 2008-CA-001917-MR

Decided: January 15, 2010


David Hendrix appeals from an order of the Letcher Circuit Court dismissing his negligence claim against Mayo Holbrook for failure to revive the action against the personal representative of Holbrook's estate pursuant to KRS 395.278.   Hendrix argues that the statute is inapplicable because Holbrook died prior to the filing of the complaint in the circuit court.   We agree that the statute does not apply, but we nevertheless affirm. Double

On September 20, 2004, Hendrix and Holbrook were involved in a motor vehicle accident.   Holbrook passed away on July 19, 2006.   His estate was dispensed without administration by order of the Letcher District Court on July 25, 2006.   Hendrix filed suit in the Letcher Circuit Court on September 18, 2006, two days before the expiration of the applicable statute of limitation.   Not knowing that Holbrook was deceased, Hendrix named him as a defendant.   Indiana Farm Bureau, Hendrix's underinsured insurance carrier, was also named as a defendant.   Indiana Farm Bureau was served on September 19, 2006.   Litwell Holbrook, Mayo Holbrook's son, was served on September 25, 2006.

Hendrix's attorney was informed of Holbrook's death on October 2, 2006, by letter from Holbrook's attorney.   On March 14, 2008, Holbrook moved to dismiss the action based on the failure to revive the action within one year of Holbrook's death.   Holbrook's motion cited KRS 395.278 as support.   Hendrix responded to the motion and moved the court for leave to amend the complaint.   The trial court entered an order on September 12, 2008, dismissing the action without prejudice for the failure to comply with the requirements of the statute. Double This appeal by Hendrix followed.

Hendrix argues that KRS 395.278 is inapplicable because Holbrook died prior to the filing of suit.   We agree.

KRS 395.278 states:

An application to revive an action in the name of the representative or successor of a plaintiff, or against the representative or successor of a defendant, shall be made within one (1) year after the death of the deceased party.

Kentucky Rules of Civil Procedure (CR) 25.01(1) states:

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, and, together with the notice of hearing, shall be served on the parties as provided in Rule 5, and upon persons not parties as provided in Rule 4 for the service of summons.   Upon 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.

“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.”  Frank v. Estate of Enderle, 253 S.W.3d 570, 575 (Ky.App.2008).  KRS 395.278 and CR 25.01 “must be read in tandem.”   Id. “[I]f within one year of a litigant's death an action is not revived against the administrator of a decedent's estate and the administrator substituted as the real party in interest, then the suit must be dismissed.”   Id.

Holbrook was never a party in this case because he died before Hendrix filed his complaint.   The accident occurred on September 20, 2004.   Holbrook died on July 19, 2006.   Not knowing of Holbrook's death, Hendrix filed suit within the two-year statute of limitations for tort actions as required by KRS 304-39.230(6).   As Holbrook died prior the filing of suit, there was no action to revive.  KRS 395.278 and CR 25.01 do not apply by their plain language because Holbrook did not die during the pendency of the action.

Mitchell v. Money, 602 S.W.2d 687 (Ky.App.1980), is on point. Double In that case, the plaintiff filed suit against a person with whom she had been involved in an automobile accident.   When suit was filed, the named defendant was deceased.   In affirming the dismissal of the plaintiff's complaint by the circuit court, this court held that “[a]s the court never obtained personal jurisdiction over the decedent, he was, in the language of KRS 395.278, never a party to the action.   In effect, the original action filed by the appellant was a nullity, there never being a party-defendant to it.”  Id. at 689.

The next question is whether the circuit court should have granted Hendrix's motion to amend so as to name a representative of Holbrook's estate as a defendant.   Because the applicable statute of limitation had run, any amendment to the complaint would had to have related back to the date of its filing in order to save the complaint from dismissal.

CR 15.03 states in relevant part as follows:

(1) Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.

(2) An amendment changing the party against whom a claim is asserted relates back if the condition of paragraph (1) is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (a) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (b) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

In Gailor v. Alsabi, 990 S.W.2d 597 (Ky.1999), the Kentucky Supreme Court rejected a similar argument that an amended complaint related back for limitations purposes. Double In that case, the plaintiff and the deceased were involved in an automobile accident, and the plaintiff filed suit against the deceased defendant the day prior to the expiration of the limitations period.   The administrator of the deceased's estate did not exist as a legal entity until more than nine months later.   The court quoted its decision in Nolph v. Scott, 725 S.W.2d 860, 862 (Ky.1987), wherein it had stated that “[t]he relation back rule mandates that the party to be named in an amended pleading knew or should have known about the action brought against him․  Nevertheless, knowledge of the proceedings against him gained during the statutory period must be attributed to the defendant.”  Gailor, 990 S.W.2d at 601.   In rejecting the relation back argument, the Gailor court held that “Appellee did not sue the proper defendant;  and the proper defendant (the administrator) could not have had notice within the limitations period, because he had not yet been appointed.”  Id.

The facts in this case are nearly identical.   Here, there was no administrator of Holbrook's estate at the time Hendrix filed his complaint and at the expiration of the limitations period.   As in Gailor, an administrator could not have had notice of the action within the limitations period because he or she had not yet been appointed. Double Thus, we hold that the court properly refused to grant Hendrix's motion to amend his complaint.

In an effort to convince us that the circuit court's dismissal order should be reversed, Hendrix argues that Holbrook's liability insurance carrier was the real party in interest.   He reasons that as the real party in interest, Holbrook's insurance carrier waived the issue of revivor by not filing an answer to the complaint and by not asserting the defense for months.   He thus contends that Holbrook was estopped from raising that argument.

We reject this argument for two reasons.   First, as we stated above, the revivor statute is not relevant at any rate.   Second, Hendrix has not demonstrated how failure to raise the revivor statute until months after the statute of limitations had expired constituted estoppel.   During those months, the attorney for Holbrook's insurance carrier advised Hendrix's attorney on multiple occasions that Holbrook was deceased and that his estate would be the proper party.   Yet, Hendrix waited until the motion to dismiss his complaint was filed before he moved the court to allow him to amend it.   Hendrix has not cited any legal authority to support his argument, and we are not aware of any.   We conclude that the argument is without merit.

The order of the Letcher Circuit Court is affirmed.