STATUTE OF LIMITATIONS – REVIVING A SUIT FOLLOWING DEATH OF A PARTY

?Mr. Roof of Louisville, LLC, et al. v. Estate of Ayanna Henry, et al., Supreme Court of Kentucky Case No. 2022-SC-0177-DG (October 26, 2023)

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??????????? This case is actually two separate companion cases which were consolidated for the purpose of appeal.? The original plaintiffs in the underlying suit were a child, her mother and her grandmother, all three of whom were victims of carbon monoxide poisoning.? The defendants were a roofing contractor and the manufacturer of the hot water heather that was used in the plaintiffs’ home.?

According to the opinion, a homeowner, the grandfather of the child, had installed a conversion kit on the hot water heater due to a manufacturer’s recall.? Shortly after the installation of the conversion kit, the roof on the home was also replaced.? At some point during the installation of the conversion kit and roof replacement, the ventilation for the hot water tank was blocked which caused the home to fill with carbon monoxide.? The child passed away due to the increased carbon monoxide levels, and the mother and grandmother both were hospitalized due to symptoms of carbon monoxide poising.?

The mother brought suit for her individual injury and also on behalf of the child’s estate.? The grandmother also brought suit for her injuries in a separate case.? Shortly after the lawsuit was filed, the grandmother passed away and the mother was appointed as the personal representative of her estate as well.? The plaintiffs were then granted leave of court to substitute the mother the plaintiff for the grandmother’s claim of the estate because she was the personal representative.? Tragically, within a few month of the grandmother’s passing, the mother also passed away.?

Under Kentucky law, whenever a plaintiff in a civil action passes away, the action is stayed and the plaintiff’s estate has one year from the date of death to revive the action.? See Ky. Rev. Stat. §§ 411.140; 395.278.? If the personal representative of an estate is a plaintiff in a case and passes during the pendency of the case, the case is also stayed and the estate has one year to appoint a successor representative.? See Ky. Rev. Stat. §§ 395.280; 395.278.? A motion to substitute a personal representative (or successor representative) for a deceased plaintiff is sufficient to revive a case under either of these circumstances.? See Ky. Rev. Stat. § 395.280; Ky. R. Civ. P. 25.01.

Following the mother’s death, no effort was made to have a personal representative appointed for the mother’s estate, or to have a successor representatives appointed for the estates of the child or grandmother.? In fact, plaintiffs’ counsel did not notify defendants or the court of the death of the mother until the court issued notice for plaintiffs to show cause as to why the case should not be dismissed for failure to prosecute, which came two years after the mother’s death.?

Once defendants learned of the mother’s death, both moved to dismiss the claims asserted against them because of plaintiffs’ failure to revive all the claims within a year of the mother’s death.? Plaintiffs’ counsel argued the delay was due to the difficulty in determining who should serve as successor representative(s) for each decedent. Plaintiff’s counsel also argued that because personal representatives had previously been appointed within the appropriate time frames in the child and grandmother’s cases, a motion to substitute the parties was all that was necessary to revive the case, and that statute did not designate a time frame for the filing of such a motion.

The trial court rejected plaintiffs’ counsel’s arguments and dismissed the action in its entirety and Plaintiffs appealed to the Kentucky Court of Appeals.? The Court of Appeals reversed the trial court’s dismissal.? In its opinion, the Court of Appeals reasoned that the statute permitting substitution of parties upon the death of an estate’s personal representative was the summary procedure to be used when a personal representative of an estate passes during the course of civil litigation.? Agreeing with Plaintiffs’ counsel, the Court of Appeals found that because the substitution statute did not contain a statute of limitations, dismissal was not warranted.? Defendants appealed the Court of Appeals decision to the Supreme Court of Kentucky.? ??

In reversing the Court of Appeals and reinstating the trial court’s order of dismissal, the Court found that the various statutes that address how to proceed in the event of the death of a party to a lawsuit must be applied in conjunction with each other.? In its analysis, the Court cited a long history of revival statutes that have been enacted in Kentucky since the early part of the 19th Century.? The Court stated that this framework does not allow for the unlimited abatement of civil action simply because a personal representative is prosecuting the action.? The Court went on to find that the plain language of the revival statutes clearly states revival of case in which a personal representative is the plaintiff must also occur within one year of the personal representative’s death.

The Court went on to clarify the process to be undertaken in the event of the death of a plaintiff or personal representative.? The Court stated that revival upon the death of a plaintiff, whether that plaintiff was the injured party or a personal representative of the estate of the injured party, may be accomplished by filing a motion for substitution of the parties.? In either case, the revival statutes require such a motion to be filed within one year of the death of the plaintiff or personal representative, otherwise the case should be dismissed.??