CHAPTER 413 LIMITATION OF ACTIONS Update_2009

 

 

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TITLE XXXVI – STATUTORY ACTIONS AND LIMITATIONS

KRS ANNOTATED

CHAPTER 413 LIMITATION OF ACTIONS

KRS 413.010 thru KRS 413.340

ACTIONS RELATING TO REAL PROPERTY

KRS 413.010   Action for recovery of real property — Fifteen year limitation.

KRS 413.020   Action for recovery of real property — Plaintiff under disability.

KRS 413.030   Action for recovery of real property — Extension for disability limited — No extension past thirty years.

KRS 413.040   Claim not to preserve right of action.

KRS 413.050   Limitation on action by city on public easement — On action for possession of public road — Effect of notice.

KRS 413.060   Person holding land under adverse title for seven years — Extension for disability.

KRS 413.070   Action upon equity of redemption in real property.

KRS 413.072   Relationship of agricultural and silvicultural operations to law of nuisance and trespass and to local government ordinances.

KRS 413.075   Repealed 1968.

ACTIONS OTHER THAN THOSE RELATING TO REAL PROPERTY

KRS 413.080   Action upon equity of redemption in personal property.

KRS 413.090   Action upon judgment, contract or bond — Fifteen-year limitation — Action for child support arrearages — Time to commence action tolled until obligations cease as to last child on order.

KRS 413.100   Lienee not to extend limitation as against purchasers or creditors — Exception.

KRS 413.110   Action against county on bonded obligation — Three year limitation — Action on state warrant — Two year limitation.

KRS 413.120   Actions to be brought within five years.

KRS 413.125   Actions relating to personal property to be brought within two years.

KRS 413.130   When certain actions in KRS 413.120 accrue — Regulations for.

KRS 413.135   Action for damages arising out of injury.

KRS 413.140   Actions to be brought within one year.  June 25, 2013

KRS 413.150   Actions by the Commonwealth.

KRS 413.160   Actions not provided for by statute — Ten year limitation.

KRS 413.170   Limitations of actions in KRS 413.090 to 413.160 do not run until removal of disability or death.

KRS 413.180   Action by or against personal representative under KRS 413.090 to 413.160.

KRS 413.190   Result of absence from the state or obstruction of action under KRS 413.090 to 413.160.

KRS 413.200   Repealed 1988.

KRS 413.210   Repealed 1988.

KRS 413.220   Sureties who are discharged after seven years.

KRS 413.230   Sureties who are discharged after five years.

KRS 413.240   Action against surety — When limitation does not run.

KRS 413.241   Legislative finding — Limitation on liability of licensed sellers or servers of intoxicating beverages — Liability of intoxicated person.  June 25, 2013 

KRS 413.242   Prerequisite to action against purchaser or selling agent of equine interest.

KRS 413.243   "Professional services" defined.

KRS 413.245   Actions for professional service malpractice.

KRS 413.246   Action for damages based on professional services rendered by licensed home inspector.

KRS 413.248   Liability of donor for damages resulting from condition of donated food.

KRS 413.249   Action relating to childhood sexual abuse or childhood sexual assault.  June 25, 2013 

PROVISIONS FOR APPLICATION OF LIMITATIONS

KRS 413.260   Effect of injunction or other restraint on limitation.

KRS 413.265   Validity of agreements extending limitations periods.

KRS 413.270   Effect of judgment of no jurisdiction — Application to administrative agencies.

KRS 413.280   Person under more than one disability.

KRS 413.290   Limitations only to residents — Notice.

KRS 413.300   Plaintiff a citizen of enemy country.

KRS 413.310   Repealed 1990.

KRS 413.320   Cause of action barred here if barred where it accrued.

KRS 413.330   Action on judgment barred here if barred where rendered — Exception.

KRS 413.340   Exceptions as to chapter.

 

Updated 9/14/2013 (2013)  GB
 

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ACTIONS RELATING TO REAL PROPERTY

 

KRS 413.010 Action for recovery of real property — Fifteen year limitation.

Subject to KRS 411.190(8), an action for the recovery of real property may be brought only within fifteen (15) years after the right to institute it first accrued to the plaintiff, or to the person through whom he claims.

Effective: July 15, 2002  History: Amended 2002 Ky. Acts ch. 306, sec. 1, effective July 15, 2002. — Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2505.

 
ANNOTATIONS:
 
[U] Greer v. Hicks (Ky. App., 2013)  2011-CA-001121-MR     July 12, 2013

…The court sustained Greer’s motion to the extent that it amended the prior judgment to allow Greer 60 days from May 13, 2011, to construct an alternate entrance to her property, but otherwise overruled the motion in its entirety finding that Greer had failed to demonstrate adverse use of the property owned by Appellee, Dora Hicks. On appeal, Greer argues that the court erred in denying her claim of adverse possession and for a prescriptive easement for ingress and egress to her property, and that the judgment was not supported by the evidence in the record. Upon review of the record, the arguments of the parties, and the applicable law, we affirm.

On appeal, Tammy makes five arguments, namely: (1) There is no basis upon which to affirm the judgment of the trial court as the trial court’s judgment is based on nonexistent testimony;  (2) Tammy met her burden of showing adverse possession of the property for the statutory period of fifteen years per KRS 413.010; (3) The finding of permissive use by the trial court is unsupported by the evidence; (4) The trial court incorrectly viewed this case as a prescriptive easement case rather than an adverse possession case;  and (5) The trial court adjudicated the access to Greer’s property without joining all necessary parties. In response, Dora argues that the trial court’s determination concerning Tammy’s failure to establish the elements of adverse possession was supported by substantial evidence. Dora asserts that the evidence clearly established that Tammy’s use of the property at issue was permissive and that, accordingly, the court was correct in finding that she failed to meet her burden of establishing adverse possession. Thus, Dora argues that the issue of whether Tammy established any of the remaining elements of adverse possession is moot.

 

[U] Acree v. Ky. May Coal Co. (Ky. App., 2012)  2011-CA-000007-MR    August 3, 2012

The doctrine of laches "serves to bar claims in circumstances where a party engages in unreasonable delay to the prejudice of others rendering it inequitable to allow that party to reverse a previous course of action." Plaza Condominium Ass’n , Inc. v. Wellington Corp., 920 S.W.2d 51, 54 (Ky. 1996) (citation omitted). While the trial court determined that any claim would be barred by the doctrine of laches, the trial court also held that Appellants’ claims seeking to recover the property were barred by the applicable statutes of limitations. Indeed, KRS 413.010 reads, in part, "an action for the recovery of real property may be brought only within fifteen (15) years after the right to institute it first accrued to the plaintiff, or to the person through whom he claims." Since the record supports the trial court’s finding that any claim to recover the property at issue is barred by the 15-year statute of limitations, the application of the doctrine of laches is inconsequential to the granting of summary judgment. We find no error in this regard.

 
Poe v. Gaunce (Ky. App., 2011) November 4, 2011  2010-CA-001774

As an aside, whether the Gates heirs base this argument upon the law of adverse possession or the law regarding prescriptive easements,the law is the same: As with adverse possession of a fee simple estate, a prescriptive easement can only be acquired by actual, hostile, open and notorious, exclusive, and continuous possession of the property for the statutory period of fifteen years. Columbia Gas Transmission Corporation v. Consol of Kentucky, Inc., 15 S.W.3d 727, 730 (Ky. 2000); see also KRS 413.010; Riley v. Jones, 295 Ky. 389, 174 S.W.2d 530, 532 (1943); Pickel v. Cornett, 285 Ky. 189, 147 S.W.2d 381, 382 (1941).

 

Henninger v. Brewster, 357 S.W.3d 920 (Ky. App., 2012)February 16, 2012 

There are "several criteria which must be met in order to establish adverse possession under the champerty statute. The nature and elements of adverse possession are that it must be: actual possession; open and notorious possession; exclusive possession; hostilepossession, and it must exist at the time of the conveyance claimed to be champertous." Cowherd, 456 S.W.2d at 830. However, "[u]nder this statute (KRS 372.070) possession . . . need not be for any specific length of time. To render the conveyance champertous, and therefore void, it is sufficient if the adverse character of the possession is such as would ripen into a fee simple title under the limitation adverse possession rule had it continued uninterruptedly for the period prescribed." Wells v. Wells, 346 S.W.2d 33, 36 (Ky. 1961) (citing Phillips v. American Ass’n. Inc., 259 Ky. 402, 82 S.W.2d 456, 457 (1935))

On the other hand, this does not mean that title automatically vests in the adverse possessor. Rather, until expiration of the fifteen-year period, the adverse possessor’s rights to the land adversely possessed are merely inchoate. KRS 372.070 protects those inchoate rights by voiding a deed from the title owner to a grantee during the period of adverse possession, but only as to the land adversely possessed. Jones v. Hargis, 286 Ky. 353, 150 S.W.2d 928 (1941) ("[A]ppellee’s deeds were champertous and void to the extent they purported to convey the land within the interference because such land was in the adverse possession of appellant’s predecessor in title when the deeds were executed."); Marley v. Baumer, 250 Ky. 682, 63 S.W.2d 919, 919 (1933) ("[A]ppellees were in the actual adverse possession of the land in dispute at the time appellant acquired title, and that the deeds to him were champertous, and therefore void to that extent." Emphasis supplied). Once the fifteen-year period expires, title to the property at issue may vest in the adverse possessor. See KRS 413.010.

Until the fifteen-year period expires, however, the original grantor (the owner at the time the adverse possession commenced) still has a right of action against the adverse possessor.Cowherd, 456 S.W.2d at 830. It is yet another way of explaining that, even if a deed conveying property is found to be void for champerty under KRS 372.070(1), title does not vest in the adverse possessor who has not occupied the land for the statutory period, and the original grantor retains a course of action against the possessor. See Cowherd, 456 S.W.2d at 830-31.

Applying these concepts here, the circuit court determined that, for purposes of KRS 372.070(1), Brewster adversely possessed a portion of Lot 32 when the Corbitt Living Trust attempted to convey that property to the Henningers. Consequently, under the statute, that conveyance is champertous and void. On appeal, the Henningers take issue only with the circuit court’s finding that Brewster’s possession of the property was "hostile." We focus our review accordingly.

According to the Henningers, the record is simply void of any evidence to support the circuit court’s finding that Brewster’s possession of the subject property was hostile. We disagree. 

 

Lee v. Tipton (Ky. App., 2012) May 18, 2012   2010-CA-002189

B. Adverse Possession

In a boundary line dispute, a landowner may acquire title to disputed real property up to his professed boundary line through adverse possession. For the landowner to prevail upon a claim of adverse possession, the landowner must demonstrate that his possession of the disputed property was: (1) hostile and under claim of right, (2) actual, (3) exclusive, (4) continuous, and (5) open and notorious. Moore v. Stills, 307 S.W.3d 71 (Ky. 2010). Additionally, the landowner must maintain the possession for the statutory period of fifteen years (KRS 413.010) and bears the burden of proving each element by clear and convincing evidence. Moore, 307 S.W.3d 71.

In rejecting the Lees’ adverse possession claim, the trial court determined that John Lee "believed the land adjoining the Homestead upon which [his] garage was built belonged to him, meaning that his possession was not ‘adverse’ under Brunton v. Roberts, 265 Ky. 569, 97 S.W.2d 413 (1936)." In essence, the trial court concluded that the Lees’ possession could not be hostile because it was premised upon a mistaken belief as to the true boundary line between Tipton’s and the Lees’ tracts. This legal conclusion was in error.

In summation,…... As to the Lees’ claim of adverse possession in the boundary line dispute, we determine that the trial court erred by dismissing same, and upon remand, the trial court shall reconsider the Lees’ claim of adverse possession in view of the analysis set forth in this Opinion. And, we affirm the trial court’s dismissal of the Lees’ claim of boundary by estoppel.

 

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Jones v. Babbage, No. 2007-CA-001496-MR (Ky. App. 5/30/2008) (Ky. App., 2008)

      The essential facts of this action are not in dispute. On June 8, 1984, Edward Babbage ("Edward"), as executor for the estate of Sallie G. Talbot, entered into an agreement to transfer a parcel of real property to Ralph and Wanda Jones. Pursuant to that agreement, Edward executed a deed conveying the property to Wanda alone. However, the deed was retained by the estate’s attorney and was never recorded.

      Wanda is asserting title based upon the strength of her own prior, unrecorded deed. She is not seeking to set aside the deed to Robert. But she does assert that Robert is not entitled to rely on his recorded deed because he had actual knowledge of the deed from Edward to her. See KRS 382.270. Furthermore, it is not necessary to prove fraud on the part of Robert, only that he had notice of such facts as would put a reasonable person on notice of the prior, unrecorded conveyance. See Terry v. Ellsworth, 236 Ky. 54, 32 S.W.2d 558, 560 (1930). Thus, Wanda’s action is not one for fraud, but for recovery of real property.

 We also disagree with Robert that the fifteen-year statute of limitations contained in KRS 413.010 applies only to claims based upon adverse possession. By its plain terms, KRS 413.010 applies to actions for recovery of real property. The statute applies to a person seeking to recover real property which is adversely possessed by another. But, it may also apply to actions to quiet title, Justice v. Graham, 246 S.W.2d 135 (Ky. 1952), and to recover real property from trespass or ouster. Wood v. Wingfield, 816 S.W.2d 899, 903 (Ky. 1991).1 While we express no opinion on the merits of Wanda’s claims, we must conclude her action is not barred by the statute of limitations.

        Accordingly, the summary judgment of the Christian Circuit Court is reversed, and this matter is remanded for additional proceedings on the merits of the claim.

 

Dowdell v. Campbell, No. 2006-CA-002126-MR (Ky. App. 6/20/2008) (Ky. App., 2008)

   To establish a claim for adverse possession, the following five elements must be proven: possession must be (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for a period of fifteen years.8 Tartar v. Tucker, 280 S.W.2d 150, 152 (Ky. 1955); Phillips, 103 S.W.3d at 708; KRS 413.010. The party claiming title by adverse possession must prove each element by clear and convincing evidence. Phillips, 103 S.W.3d at 709.

        HOSTILE POSSESSION

        Hostile possession of property under a claim of right requires a claimant to openly demonstrate an intention to hold control over the disputed property in a manner necessary to provide notice of the adverse claim to the nonpossessory titleholder. Sweeten v. Sartin, 256 S.W.2d 524, 526 (Ky. 1953). In Tartar, the Court determined the land in dispute was built upon and improved to an extent that owners were ordinarily accustomed to do. Tartar, 280 S.W.2d at 152. Thus, the Court held "such conduct shows a hostile entry which amounted to a public pronouncement of hostility to the title of the real owner." Id.

……we hold Judge Coleman did not abuse her discretion in vacating the previous orders and subsequently issuing her own final judgment. 

 

Pendleton v. Centre College of Kentucky, 818 S.W.2d 616 (Ky. App., 1990)

    We conclude the court correctly interpreted these provisions in dismissing on limitations. We agree with the interpretation set forth by Centre College that the fifteen-year period of limitation began to run against Cecil in 1966 when he first possessed the right to institute an action for recovery of the real property in question.

      The statutes with which we deal are specifically directed to the recovery of real property, and while it may be true that statutes of limitations not involving realty may be predicated upon the right and capacity to sue, we do not think KRS 413.010 and .020 should be so interpreted.

     After an estate has been finally distributed, the interest in finality may provide an additional, valid justification for barring the belated assertion of claims, even though they may be meritorious and even though mistakes of law or fact may have occurred during the probate process.

        For these reasons, we affirm the CR 12 dismissal of the complaint on this appeal. 

Martin v. Commonwealth, Department of Transportation, 2001 KY 250 (KYCA, 2001)

The Martins and Thompson contend this case is governed by KRS 413.010, which applies to an "action for the recovery of real property." As a result, they claim that they had 15 years to bring an action to recover "their property." Furthermore, the Martins and Thompson assert that KRS 413.120(2) does not apply because it speaks in terms of a "liability" created by statute, rather than a "right." We disagree.  

 Vandertoll v. Commonwealth of Kentucky, 110 S.W.3d 789 (Ky., 2003)

  Each of the condemnees argues that the fifteen-year statute of limitations set forth in KRS 413.010 should apply to claims brought under KRS 416.670, rather than the five-year period found in KRS 413.120(2). The courts below that reached the statute of limitations issue held that KRS 413.120(2) should govern because a claim arising under KRS 416.670 is "(a)n action upon a liability created by statute." KRS 413.120(2). KRS 413.120(2) states that a five-year statute of limitations applies to such claims "when no other time is fixed by the statute creating the liability."

        The condemnees contend that KRS 413.010, dealing with actions for the recovery of real property, governs because their claims involve a right to repurchase real property and not a liability created by statute. We disagree.

 

Dowdell v. Campbell, No. 2006-CA-002126-MR (Ky. App. 6/20/2008) (Ky. App., 2008)

To establish a claim for adverse possession, the following five elements must be proven: possession must be (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for a period of fifteen years.8 Tartar v. Tucker, 280 S.W.2d 150, 152 (Ky. 1955); Phillips, 103 S.W.3d at 708; KRS 413.010. The party claiming title by adverse possession must prove each element by clear and convincing evidence. Phillips, 103 S.W.3d at 709. 

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KRS 413.020 Action for recovery of real property — Plaintiff under disability.

If, at the time the right of any person to bring an action for the recovery of real property first accrued, he was an infant or of unsound mind, he or the person claiming through him may, though the period of fifteen (15) years has expired, bring the action within three (3) years after the time the disability is removed.

Effective: October 1, 1942   History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2506.

 
ANNOTATIONS:
 

Skillen v. English, No. 2008-CA-001415-MR (Ky. App. 8/7/2009) (Ky. App., 2009)

  On December 28, 2006, Skillen filed this action against English for damages that arose as a result of his inspection of Skillen’s residence. Skillen alleged that English breached his inspection contract by failing to identify and disclose serious defects in the home, including interior water damage, inadequate roof repairs and shingles, and defects relating to the exterior insulation finished system. On April 1, 2008, English filed a motion for summary judgment on the ground that the claim was barred by the applicable statute of limitations in KRS 198B.734. Skillen countered that English was not a "licensed home inspector" as defined in KRS 198.700(7) at the time of the inspection and, therefore, the provisions of KRS 413.020 applied and a five year statute of limitations governed. The Jefferson Circuit Court entered summary judgment in favor of English on May 14, 2008, and overruled Skillen’s motion to vacate or amend on July 9, 2008. This appeal followed.

 

Electric Ins. v. Freudenberg-Nok, Gen. Partnership, 487 F.Supp.2d 894 (W.D. Ky., 2007)

The plaintiff argues that the appropriate statute of limitations for its contractual indemnity claim is K.R.S. § 413.090, Kentucky’s fifteen-year statute of limitations for actions based on contracts, not § 413.020(7). It asserts that, because this claim is one for indemnity, it is not subject to the limitations of § 355.2-725. The plaintiff also contends, however, that because this claim is contractually based, it is governed by Kentucky’s contract statute of limitations. This is, in essence, an argument that the plaintiffs claim is sometimes for indemnity and other times for contract damages, depending on what statute of limitations is most favorable. The plaintiff cannot have it both ways.

        If, however, the court were to accept the plaintiffs argument that its contractual indemnity claim accrued when the defendant’s promise to indemnify was allegedly breached, the defendant would be severely prejudiced. Since a product can theoretically fail and cause damage at any time, under the plaintiffs reasoning, the defendant could potentially be subject to indefinite liability on its promise to indemnify GE for such damage. Such a result essentially makes the defendant an insurer of its products and runs counter to the U.C.C’s goals of ensuring finality in commercial contracts. See Barnes v. Community Trust Bank, 121 S.W.3d 520, 524 (Ky.Ct. App.2003); K.R.S. § 355.2-725(1) (noting that parties to a commercial contract may not extend the four-year statute of limitations). For the foregoing reasons, the court is unpersuaded by the plaintiffs arguments that its contractual indemnity claim accrued after the tender of delivery. Accordingly, IT IS ORDERED that the plaintiff’s motion for partial reconsideration (DE 28) is DENIED.

 

Horn v. Montgomery, 305 Ky. 275 (KY, 1947)

Limitation of Actions. — Where ward became 21 years of age in 1935, action instituted by ward in 1945 to recover land on ground that sale by guardian in 1916 was void was barred by statute of limitation. KRS 413.020

 

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 KRS 413.030 Action for recovery of real property — Extension for disability limited — No extension past thirty years.

(1) The time within which an action for the recovery of real property may be brought shall not be extended by reason of any disability that did not exist when the right to bring the action first accrued, nor by reason of any disability of the heirs of the person to whom the right first accrued.

(2) The period within which an action for the recovery of real property may be brought shall not, in any case, be extended beyond thirty (30) years from the time when the right to bring the action first accrued to the plaintiff or the person through whom he claims.

Effective: October 1, 1942  History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. secs. 2507, 2508.

 
ANNOTATIONS:
 

Brittenum v. Cunningham, 310 Ky. 131 (KY, 1949)

3. Remainders. — Where owner of land subject to outstanding recorded mortgage conveyed without consideration to daughter-in-law for life with remainder over to heirs of husband, and thereafter foreclosure suit was brought against mortgagor and husband and purchaser took possession under commissioner’s deed and held it for more than 49 years by complete possession with knowledge of remaindermen who took no steps to protect their rights, life tenancy was terminated so as to start statutes of limitations running and bar recovery of possession by remaindermen.  KRS 413.010 to 413.030, 413.070.

Appellees further pled and claimed that, notwithstanding their claim under the mortgage and deed, they and their predecessors in title took possession of the land under the master commissioner’s deed and have held same for more than 49 years in actual, open, notorious, adverse and continuous possession, all with the full knowledge of the life tenant and the appellants. They pled and relied on all the different statutes of limitation, including KRS 413.010, 413.020, 413.030 and 413.070. They further pled laches and equitable estoppel.

 To look at it another way, appellants’ right of possession accrued after the right of the life tenant had been extinguished. That right may be extinguished other than by the death of the life tenant, in which event the remaindermen’s right of possession will be accelerated. If the life tenant had the right of possession at the time of the commissioner’s sale, and that right continued because of alleged failure to make the life tenant a party to the foreclosure action, and soon after the sale the life tenant moved off of the land, abandoned it, and did nothing about it for the period of limitations, would this not effect a termination of the life estate and start the statute running against the remaindermen? If the 15 year statute would be applicable and run against the life tenant, then the statute begins to run against the remaindermen at the end of the first 15 year period. Then another 15 years could be tacked on, making a total of 30 years and still nothing done by either the life tenant or the remaindermen. As stated above the time has been about 49 years — time for yet another 15 year period to run and still nothing was done within the third 15 year period.

        Here a purchaser under a commissioner’s deed dispossessed the life tenant, took full and complete possession of the property and has held same far beyond the statutory period, all of which the remaindermen had actual knowledge. Under such circumstances the life tenancy was in effect terminated as much so as if the life tenant had died. Superior Oil Corporation v. Alcorn, 242 Ky. 814, 47 S.W. 973.

        The court properly overruled the demurrer to defendants’ answer.

 

Trumbo v. Parsley, 461 S.W.2d 67 (Ky., 1970)

   ……. Defendants Eversole, Hensley and Swanner and non-party Fred V. Lucas filed and served a ‘separate answer and defense’ to the complaint, pleading among other things the statute of limitations (KRS 413.030(2)), setting up their own claims to the land in question, alleging that plaintiffs had slandered and cast a cloud upon them, and demanding that their title be quieted and that they be awarded $1,000 each in damages against plaintiffs.

       Our recent decisions on the subject of dismissal for want of prosecution are discussed Gill v. Gill, Ky., 455 S.W.2d 545 (1970), in which it is pointed out that each case ‘must be considered in the light of the particular circumstances involved.’ We are unable to say that the trial court abused its discretion in this instance. Noting, however, that the judgment from which the appeal is taken failed to dispose of the counterclaim and cross-claim and thus under CR 54.02 is not a final and appealable order, it is necessary that we dismiss the appeal on our own motion instead of affirming the judgment.

 

Burchett v. James, 246 S.W.2d 461 (Ky., 1952)

 After it was executed, she moved on the portion of ground allotted to her and lived there for over 30 years before instituting the claim to that portion which belonged to Stonewall Clark. She testified that she knew of the sale to Thomas James and knew that a short time later Stonewall purchased a part of the land he had sold. She knew that the property was being improved by various people who had acquired interest in the land, and made no move for many years to dispossess the appellees who are the vendees and heirs of Thomas James. If any right of action ever accrued to appellant, it was in 1914, 35 years previous to this action, and it is now barred by KRS 413.030, subsection (2) which states: ‘The period within which an action for the recovery of real property may be brought shall not, in any case, be extended beyond thirty years from the time when the right to bring the action first accrued to the plaintiff or the person through whom he claims.’

 

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KRS 413.040 Claim not to preserve right of action.

No continual claim upon or near real property shall preserve a right to bring an action.

Effective: October 1, 1942   History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2509. 

 
ANNOTATIONS:
 
Whitley v. Robertson Cnty. (Ky., 2013) 2011-SC-000612-DG  April 25, 2013

The issues we address arise from the Court of Appeals’ conclusion, which we regard as erroneous, that Appellants’ action could be brought in the circuit court only as an appeal from a decision of Robertson County Fiscal Court refusing to order the abandonment, or "discontinuance," of a county road as provided by KRS Chapter 178, not as a declaratory judgment action to determine the road’s legal status. The difference is significant because in the adjudication of an appeal under KRS 178.100 from a fiscal court decision, the circuit court must apply the deferential standard of review explained in Trimble Fiscal Court v. Snyder, 866 S.W.2d 124 (Ky. App. 1993), rather than the de novo adjudication of an original action for a declaratory judgment under KRS 413.040. Because the circuit treated the Appellants action as ade novo action for declaratory judgment, giving no deference to prior "findings" of a fiscal court action, the Court of Appeals reversed the judgment.

        For the reasons stated below, we conclude that the Appellants properly invoked the declaratory judgment process of KRS 413.040 to challenge the legal status of the disputed pass way and that the action could not be characterized as an appeal from a fiscal court decision because, under the specific facts of this case, no appealable event had occurred. Accordingly, we reverse the decision of the Court of Appeals, and remand for its further consideration of the remaining unaddressed issues.

 

Fayette County Board of Education v. Maner, No. 2007-CA-002243-MR (Ky. App. 5/22/2009) (Ky. App., 2009)

  Plaintiff has argued that the one year statute of limitations found in KRS 413.040(1)(a) applies. The Board makes its arguments using the longer limitation period so that there is no question but that the matter is time barred. Using the Plaintiff’s position that KRS 413.140(1)(a) applies, then the claims were barred by limitation on January 28, 1982.

        We agree with Lynne that her federal causes of action seek relief for violations of her civil rights.6 Being the master of her complaint, this was her decision. Thus, following Collard, and in light of a seemingly apparent concession by the Board that KRS 413.140(1)(a) applies, this is the statute we will apply.

        Lynne did not bring her cause of action within one year after reaching the age of majority. Thus, unless a tolling provision applies, her action is barred. The Board claims that tolling does not apply to her case because she has known since she was in high school that her mother had complained to Dr. Potts and that after the deposition of Dr. Potts, Lynne made the same allegations against the Board as she before. The Board contends that based on the information she had about her mother’s report, Lynne could have filed the "exact same" complaint within one year of reaching the age of majority. Consequently, the Board argues that tolling does not apply.  

Louisville & N. R. Co. v. City of Owensboro, 238 S.W.2d 148 (Ky., 1951)

    The Railroad maintains it has acquired title to Daviess Street between Fourteenth and Fifteenth Streets by adverse possession, on the ground that KRS 413.050 is not applicable and, if it were, appellant has shown the equivalent of the required notice. KRS 413.050(1) provides: ‘The limitations mentioned in KRS 413.010 to 413.040 shall not begin to run in respect to actions by a city for the recovery of any part of any street, alley or other public easement or the use thereof in the city, until the legislative body of the city has been notified in writing by the party in possession or about to take possession that his possession will be adverse to the right or title of the city. Until such notice is given, all possession of any part of any street, alley or public easement in any city shall be deemed amicable, and the person in possession the tenant at will of the city.’

      The Railroad maintains that under the judgment it is required to construct a suitable crossing and restore the grade of Daviess Street before the proper authority has determined the grade. This presents a more serious question because it is not shown that any engineer has surveyed this street, or that the City has, by any ordinance, established the grade of Daviess Street between Fourteenth and Fifteenth Streets or beyond these streets. The Railroad maintains that if it should comply with the judgment before the City has by ordinance established the grade of the street, the judgment would afford no protection against a subsequent ordinance of the City fixing different specifications. It is obvious that such a grade and other specific specifications, not only as to the grade of the street but as to the width of the street, should have been established and pleaded and proved in this action. For this reason the judgment must be reversed.

        The judgment is reversed for proceedings not inconsistent with this opinion

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KRS 413.050 Limitation on action by city on public easement — On action for possession of public road — Effect of notice.

(1) The limitations mentioned in KRS 413.010 to 413.040 shall not begin to run in respect to actions by a city for the recovery of any part of any street, alley or other public easement or the use thereof in the city, until the legislative body of the city has been notified in writing by the party in possession or about to take possession that his possession will be adverse to the right or title of the city. Until such notice is given, all possession of any part of any street, alley or public easement in any city shall be deemed amicable, and the person in possession the tenant at will of the city.

(2) Limitation shall not begin to run in favor of any person in the possession of any part of any public road until written notice is given to the county judge/executive of the county in which the road is situated that the possession is adverse to the right of the public to the use of the road.

Effective: June 17, 1978   History: Amended 1978 Ky. Acts ch. 384, sec. 520, effective June 17, 1978. — Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. secs. 2546, 2547.

 
ANNOTATIONS:
 

Jones v. Haut, No. 2007-CA-000478-MR (Ky. App. 1/11/2008) (Ky. App., 2008)

   KRS 413.050(2) states:

        Limitation shall not begin to run in favor of any person in the possession of any part of any public road until written notice is given to the county court of the county in which the road is situated that the possession is adverse to the right of the public to the use of the road.

     Jones argues that KRS 413.050(2) fails to differentiate between public roads and public roads accepted into the county road system as specifically defined in the later amended KRS 178.010. She further argues that there is no reason to require notice to the county for the possession of a road not accepted into the county road system. We disagree. The statute clearly requires notice of any public road. We believe the legislature’s intention to be clear from their use of the word any. Furthermore, the notice requirement of KRS 413.050(2) is clearly supported by case law.

 

May v. Lewis, No. 2007-CA-000866-MR (Ky. App. 2/29/2008) (Ky. App., 2008)

    Ultimately, the trial court granted Lewis’s motion and ordered the Mays "to remove any obstructions from the road in question" and to "do nothing that will interfere with free ingress and egress of the Plaintiff or the public in general." In so ruling, the trial court found that the road in question had been dedicated as a public road on a subdivision plat. Based on KRS 413.050(2), the court then found that the Mays "have not filed the required written notice that is called for in" that statute”.

    Finally, we are confused by the trial court’s citation to KRS 413.050. Section two of that statute states that the limitation period shall not run in favor of any person in possession of any part of any public road until written notice is given to the county judge/executive of the county in which the road is situated that the possession is adverse to the right of the public to the use of the road.

        It appears that the Mays did not argue before the circuit court and are not arguing before us that they have adversely possessed the road. They argued and are arguing that the road does not exist or that, if it exists, it does not exist where Lewis says it does. Therefore, we do not discern that KRS 413.050 currently has any application herein. 

Louisville & N. R. Co. v. City of Owensboro, 238 S.W.2d 148 (Ky., 1951)

      The Railroad maintains it has acquired title to Daviess Street between Fourteenth and Fifteenth Streets by adverse possession, on the ground that KRS 413.050 is not applicable and, if it were, appellant has shown the equivalent of the required notice. KRS 413.050(1) provides: ‘The limitations mentioned in KRS 413.010 to 413.040 shall not begin to run in respect to actions by a city for the recovery of any part of any street, alley or other public easement or the use thereof in the city, until the legislative body of the city has been notified in writing by the party in possession or about to take possession that his possession will be adverse to the right or title of the city. Until such notice is given, all possession of any part of any street, alley or public easement in any city shall be deemed amicable, and the person in possession the tenant at will of the city.’

        The Railroad maintains that if it should comply with the judgment before the City has by ordinance established the grade of the street, the judgment would afford no protection against a subsequent ordinance of the City fixing different specifications. It is obvious that such a grade and other specific specifications, not only as to the grade of the street but as to the width of the street, should have been established and pleaded and proved in this action. For this reason the judgment must be reversed.

        The judgment is reversed for proceedings not inconsistent with this opinion.

 

Salyers v. Tackett, 322 S.W.2d 707 (Ky., 1958)

    The statute, KRS 413.050(2), declares:

‘Limitation shall not begin to run in favor of any person in the possession of any part of any public road until written notice is given to the county court of the county in which

the road is situated that the possession is adverse to the right of the public to the use of the road.’

        So, the right to obstruct a public way or road cannot be acquired by prescription, although the obstructions have been long maintained, unless this statute has been complied with. Mack v. Leavell, 243 Ky. 275, 47 S.W.2d 1067. It was not done here.

        We are of opinion, therefore, that the injunction sought by the appellant should have been granted.

        The judgment is reversed. 

Bluegrass Flow, Inc. v. Kentucky-American Water Company (Ky. App., 2003)

Although our ruling on the standing issue renders the second issue raised by the appellant moot, we will nonetheless address it. The appellant’s second argument is that the circuit court erred in determining that its action was barred by the applicable statute of limitation. The appellant argues that a franchise is a real property right and that KRS 413.050 or other statutes of limitation are applicable. We disagree.

        KRS 96.010 vests Kentucky municipalities with the authority to sell public utility franchises. The statute also outlines, in part, how such a sale should proceed. We know of no specific statute of limitation which would govern an action alleging a violation of KRS 96.010.

        We conclude that, assuming the appellant had standing, KRS 413.120(7) was applicable. Therein, it is stated that "[a]n action for an injury to the rights of the plaintiff, not arising on contract and not otherwise enumerated" shall be commenced "within five (5) years after the cause of action accrued." Id. Because the petition filed by the appellant herein was filed nearly seven years after the franchise was awarded, the petition was untimely. 

Lewis v. Travis, No. 2006-CA-000531-MR (Ky. App. 6/29/2007) (Ky. App., 2007)

    In their counterclaim, the Travises first argue that the circuit court erred in allowing Lewis to prosecute a claim of adverse possession in his effort to secure title to the disputed parcel. Relying on KRS 413.050, they maintain that a claim of adverse possession cannot be made against public land without written notice to the county executive, and argue that even if such a claim could be made that Lewis has failed to possess the property in an open, notorious and exclusive manner for the statutory period.

        This argument is moot in light of the jury verdict — and our affirmation of the order and judgment reflecting the verdict — that Lewis did not prove adverse possession as to Segment 2. That is to say, even if we now determined that Lewis should not have been availed of the opportunity to prosecute a claim of adverse possession, it would not alter the status quo. Arguendo, even if this argument is not moot, the circuit court opined that a genuine issue of material fact existed as to whether Lewis adversely possessed Segment 2, and that the issue could not be summarily disposed of by judicial action. This finding is sustainable by the record, and as such we find no error on this issue.

 

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KRS 413.060 Person holding land under adverse title for seven years — Extension for disability.

(1) No action shall be brought under or by virtue of an adverse, interfering entry, survey or patent to recover the title or possession of land from an occupant if he, or the person under whom he claims, has a connected title thereto in law or equity, deducible of record from the Commonwealth, and has an actual occupancy of it by settlement thereon, under such title, for seven (7) years before the commencement of the action. This possession of land shall bar the right of entry into it by any person, under an adverse title or claim, and sufficient possession to bar the right to recover it shall vest the title in the occupant or his vendee.

(2) The provisions of subsection (1) of this section shall not apply to a person who is an infant, of unsound mind or out of the United States in the employment of the United States or of this state at the time the cause of action accrued, until seven (7) years after the removal of such disability. The disability of one (1) of several claimants shall save only his own right, and not that of another.

Effective: October 1, 1942   History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2513.

 
ANNOTATIONS:
 

Strohschein v. Crager, 258 S.W.3d 25 (Ky. App., 2007)

 Because we have affirmed the trial court’s holdings as to the ownership of the respective properties and the corresponding boundary lines, there is nothing to resolve as to the boundary dispute between Crager and the appellants. Consequently, we decline to comment on whether the appellants timely asserted their claim against Crager. See KRS 413.060.

 

Railing v. United Mine Workers of America, 276 F.Supp. 238 (N.D.W.Va., 1967)

Kentucky statutes of limitations provide a ten year period for actions upon which no other limitation is prescribed and a five year period for actions involving injury to real or personal property or to enforce liability created by a statute not fixing a different limitation period, KRS 413.060. However, the scope of these limitation provisions is narrowed by the "borrowing statute" which reads, "When a cause of action has arisen in another state or country, and by the laws of the state or country where the cause of action accrued the time for the commencement of an action thereon is limited to a shorter period of time than the period of limitation prescribed by the laws of this state for a like cause of action, then said action shall be barred in this state at the expiration of said shorter period." KRS 413.320.

 To summarize, it is the findings and conclusions of the Court:

(1) That where the statute of limitations is pleaded in an action for damages for the violation of the provisions of Section 303 of the Labor-Management Relations Act of 1947 (29 U.S.C.A. § 187), originally brought in the District Court of the United States for the Eastern District of Kentucky and later transferred by that court to the District Court of the United States for the Northern District of West Virginia under 28 U.S. C.A. § 1404(a), for the convenience of the parties and witnesses and in the interest of justice, and the Act itself fails to provide a limitation for the bringing of such action, the transferee district court must look to the law of the state of Kentucky, including that state’s "borrowing statute," to determine the statute of limitations applicable to the cause of action sued upon.

(3) That where an action was originally brought in Kentucky and transferred to West Virginia under the doctrine of forum non conveniens and it is shown that the cause of action declared upon arose in West Virginia and the period of limitations applicable thereto is shorter in West Virginia than in Kentucky, West Virginia law must be applied by virtue of the force and effect of Kentucky’s "borrowing statute" (KRS 413.320).

(4) That the two-year limitation prescribed by West Virginia Code 55-2-12 is applicable to the cause of action declared upon, and any grievance committed or damage sustained more than two years prior to the institution of this action on June 28, 1961 is barred by such statute.

(5) That the defendant has failed to carry its burden of showing a lack of any genuine issue of material fact with respect (a) to the issue of the unlawful and wrongful "inducement" of plaintiffs’ employees; (b) to the issue of the unlawful and wrongful "inducement" of the employees of other employers, and (c) to the issue of the unlawful and wrongful "inducement" of other employers.

Defendant will accordingly have summary judgment against any grievance committed and damage sustained more than two years prior to the institution of this action on June 28, 1961, but defendant’s motion in all other respects is denied.

 

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KRS 413.070 Action upon equity of redemption in real property.

After a mortgagee of real property or any person claiming under him has had fifteen (15) years’ continued adverse possession, no action shall be brought by the mortgagor or anyone claiming under him to redeem the property.

Effective: October 1, 1942  History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2539.  

NO ANNOTATION FOR THIS STATUTE 

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KRS 413.072 Relationship of agricultural and silvicultural operations to law of nuisance and trespass and to local government ordinances.

(1) It is the declared policy of the Commonwealth to conserve, protect, and encourage the development and improvement of its agricultural land and silvicultural land for the production of food, timber, and other agricultural and silvicultural products. When nonagricultural land uses extend into agricultural and silvicultural areas, agricultural and silvicultural operations often become the subject of nuisance suits or legal actions restricting agricultural or silvicultural operations. As a result, agricultural and silvicultural operations are sometimes either curtailed or forced to cease operations. Investments in farm and timber improvements may be discouraged. It is the purpose of this section to reduce the loss to the state of its agricultural and silvicultural resources by clarifying the circumstances under which agricultural and silvicultural operations may be deemed to be a nuisance or interfered with by local ordinances or legal actions.

(2) No agricultural or silvicultural operation or any of its appurtenances shall be or become a nuisance or trespass, private or public, or be in violation of any zoning ordinance, or be subject to any ordinance that would restrict the right of the operator of the agricultural or silvicultural operation to utilize normal and accepted practices, by any changed conditions in or about the locality thereof after the same has been in operation for more than one (1) year, when the operation was not a nuisance at the time the operation began. The provisions of this subsection shall not apply whenever a nuisance, trespass, or zoning violation results from the negligent operation of an agricultural or silvicultural operation or its appurtenances.

(3)

 (a) For the purposes of this section, "agricultural operation" includes, but is not limited to, any facility for the production of crops, livestock, equine, poultry, livestock products, poultry products, horticultural products, and any generally accepted, reasonable, and prudent method for the operation of a farm to obtain a monetary profit that complies with applicable laws and administrative regulations, and is performed in a reasonable and prudent manner customary among farm operators. Agricultural practices protected by this section shall include, but not be limited to, fertilizer application, the application of pesticides or herbicides that have been approved by public authority, planting, cultivating, mowing, harvesting, land clearing, and constructing farm buildings, roads, lakes, and ponds associated with a farming operation.

(b)

1. An agricultural operation may include the practice of sustainable agriculture.

2. For purposes of this section, "sustainable agriculture" includes science-based practices that:

a. Are supported by research and the use of technology;

b. Are demonstrated to lead to broad outcomes-based performance improvements that meet the needs of the present; and  

c. Improve the ability of future generations to meet their needs while advancing progress toward environmental, social, and economic goals and the well-being of agricultural producers and rural communities.

3. Sustainable agriculture may use continuous improvement principles, with goals that include:

a. Increasing agricultural productivity;

b. Improving human health through access to safe, nutritious, and affordable food; and

c. Enhancing agricultural and surrounding environments, including water, soil, and air quality, biodiversity, and habitat preservation.

(4) For the purposes of this section, "silvicultural operation" includes timber harvest, site preparation, slash disposal including controlled burning, tree planting, precommercial thinning, release, fertilization, animal damage control, reasonable water resource management, insect and disease control in forest land, and any other generally accepted, reasonable, and prudent practice normally employed in the management of the timber resource for monetary profit. A silvicultural operation inherently includes lengthy periods between harvests and shall be deemed continuously operating so long as the property supports an actual or developing forest.

(5) An agricultural or silvicultural operation shall not lose its status by reason of a change of ownership or a cessation of operation of no more than five (5) years or one (1) year after the expiration of a state or national program contract, either in whole or in part, nor shall it lose its status by reason of changes of crops or methods of production due to the introduction and use of new and generally accepted technologies which allow the operator to continue an existing agricultural or silvicultural corporation, unless the operation is substantially changed.

(6) The provisions of this section shall not affect the right of any person, firm, or corporation to recover damages for any injuries or damages sustained by them on account of pollution of the waters of any stream or ground water of the person, firm, or corporation.

(7) Any and all ordinances of any unit of local government now in effect or hereafter adopted that would make an agricultural or silvicultural operation or its appurtenances a nuisance per se, or providing for abatement thereof as a nuisance, a trespass, or a zoning violation in the circumstance set forth in this section shall be void. However, the provisions of this subsection shall not apply whenever a nuisance results from the negligent operation of any such agricultural operation or any of its appurtenances.

(8) Any administrative regulation promulgated by any agency that establishes standards for harvesting or producing agricultural crops in a sustainable manner shall be based on the principles outlined in this section and shall allow the use of best management practices developed under KRS 224.71-100 to 224.71-140.

Effective: July 15, 2010 History: Amended 2010 Ky. Acts ch. 100, sec. 1, effective July 15, 2010. — Amended 1996 Ky. Acts ch. 91, sec. 1, effective July 15, 1996. — Created 1980 Ky. Acts ch. 214, sec. 1, effective July 15, 1980. Legislative Research Commission Note (7/15/2010). Under the authority of KRS 7.136(1), the Reviser of Statutes has inserted subparagraph and subdivision designations into subsection (3)(b) of this statute during codification. The meaning of the text was not changed. 

ANNOTATIONS:  

[U] Price v. Johnson (Ky. App., 2013) 2011-CA-000011-MR May 31, 2013

Throughout his complaint, Price alleges that the Appellees violated KRS 413.072, "which prohibits local regulations on agricultural uses." Nash v. Campbell County Fiscal Court, 345 S.W.3d 811, 815 (Ky. 2011). Because Price’s land is zoned for residential use, KRS 413.072 is not applicable to his property. Thus, any claim he alleges pursuant to KRS 413.072 would fail on the merits. Accordingly, the trial court properly dismissed them.  

 

Nash v. Campbell County Fiscal Court, 345 S.W.3d 811 (Ky., 2011)April 21, 2011 – Rehearing and Modification Denied

The trial court agreed with Nash and Torline, and held that the County’s ordinances violated the agricultural supremacy clause and were therefore unconstitutional. The appellate court reversed the lower court and ordered summary judgment on behalf of the County. The Supreme Court accepted discretionary review, affirmed in part the lower court’s decision, reversed in part, and remanded the case to the trial court to enter summary judgment in favor of the County. The Court found that the five-acre plots were subdivisions that required planning commission approval before recording.

The “agricultural supremacy clause” is not a specific clause in the text of Chapter 100 of the Kentucky Revised Statutes, but a doctrine or thread that is woven throughout the Chapter. When the Chapter authorizes zoning regulations, KRS 100.203(4) exempts land used for agricultural purposes (whether or not in an agricultural zone) from most regulations on the use of land. When the Chapter authorizes subdivisions of land, KRS 100.111(22) exempts land used for agricultural purposes not involving a new street from regulations on divisions of land. KRS 100.111(2) defines “agricultural use” which, in most cases, requires at least five contiguous acres to be considered an agricultural use. Together, these statutes create the “agricultural supremacy clause” or an agricultural exemption doctrine which takes agricultural uses outside the jurisdiction of zoning ordinances and agricultural divisions outside the jurisdiction of subdivision regulations, although not outside of planning or the master or comprehensive plan. Fn 26 KRS 413.072 (commonly known as the Right to Farm Act) also reflects the agricultural supremacy doctrine by specifically prohibiting any city or county from adopting, and even voids, ordinances which would regulate farming through zoning or other regulations.

Fn 26. “This ‘agricultural supremacy clause’ (KRS 100.203(4)) does not simply make a farm a legal nonconforming use but takes it outside the zoning ordinances’ jurisdiction, although not outside the master or comprehensive plan.” Grannis v. Schroder, 978 S.W.2d 328, 330 (Ky.App.1997).

The County Clerk did not err in not recording the tendered Nash and Torline conveyances because they were in fact subdivisions which needed planning commission approval. The trial court did not err to the extent it found the two county ordinances in question void, although we believe for different reasons. The Court of Appeals erred in holding the two county ordinances were valid, but did not err in remanding the case to the trial court for entry of summary judgment in Appellees’ favor, but again, for different reasons. With our decision, the remaining issues become moot. Therefore, we affirm in part and reverse in part, remanding to the trial court with instructions to enter summary judgment in favor of the Appellees.

 

Campbell County Fiscal Court v. Nash, No. 2007-CA-000994-MR (Ky. App. 12/12/2008) (Ky. App., 2008)

     The Schroders have over five contiguous acres, including a dwelling, and they produce hay. There is no requirement that a person make the best agricultural use or be efficient in the operation of a farm……the point is that a user of agricultural land can change one agricultural use to another with impunity. KRS 413.072, enacted after Schroder’s request, guarantees the right to change without being labeled a nuisance, trespass, or zoning violation.

     The Campbell County Fiscal Court and the named county officials (collectively referred to as appellants) appeal from the Campbell Circuit Court’s orders declaring unconstitutional Campbell County Ordinances Nos. O-18-04 and O-20-04. Appellants argue that the trial court erred by holding that the Fiscal Court lacked the authority to enact the ordinances, and by holding that the ordinances were preempted by the agricultural supremacy clause, were void for vagueness, ……. For the following reasons, we vacate and remand.

 

Upchurch v. Cumberland County Fiscal Court, 2003 KY 89 (KYCA, 2003)

SCHRODER, JUDGE, DISSENTING.

Additionally, in 1980, the General Assembly enacted House Bill, commonly referred to as "Right To Farm Act," codified as KRS 413.072, which prohibits any city or county from adopting, and voids, any ordinance which would regulate farming through zoning or other regulations. See KRS 413.072(2). Farming operations include agricultural and silvicultural operations as well as facilities for the production of livestock and poultry. KRS 413.072(3).

     The Right To Farm Act, KRS 413.072(2), also prohibits cities and counties from declaring any agricultural operation a nuisance per se, even though KRS 381.770(4) allows cities and counties to adopt nuisance codes. KRS 413.072(2). KRS 413.072(6) & (7) and KRS 381.770(1) & (2) allow for the abatement of common law and actual nuisances on agricultural lands. See KRS 411.500 to KRS 411.570 for codification of the common law of nuisance in the Commonwealth.

    I would reverse and hope that the General Assembly would revise the definition in KRS 413.072(3) of farming operations to limit its application to traditional concepts of farming and allow regulation by the county of AFOs. If so amended, KRS 67.083(6) would allow the county to regulate not the traditional farms covered by the Right To Farm Act, but the AFOs or factories. 

 

21st Century Development Co., LLC v. Watts, 958 S.W.2d 25 (Ky. App., 1997)

     Appellants also argue that Watts does not have standing to challenge the zone change. We disagree. The uncontroverted evidence shows that he was a neighbor. Prior to the 1966 enactment of KRS 100.347, Kentucky courts recognized that zoning issues affected more than just the adjacent property owner or those in the same neighborhood. Fritts v. City of Ashland, Ky., 348 S.W.2d 712, 714 (1961), our highest Court recognized the precedent that:

[a] zoning change on the value of neighboring property is only one factor to be considered, and the purpose of zoning is not to protect the value of the property of particular individuals but rather to promote the welfare of the community as a whole. The entire community is damaged by haphazard zoning because it causes insecurity of property values throughout the city. So the mere fact that the particular complaining parties may not suffer a decrease in the value of their property will not redeem a zoning change that is not related to proper zoning objects. (Emphasis added.)

    Even if the property or use is exempt from zoning under the "agricultural supremacy clause" of KRS 100.203(4) or KRS 413.072(2), or the use is exempt through case law, (City of Louisville Board of Zoning Adjustment v. Gailor, Ky.App., 920 S.W.2d 887 (1996) and City of Ladue v. Gilleo, 512 U.S. 43, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994)), the comprehensive plan must still consider future changes and make recommendations. Sometimes, as in the case of governmental units, even though they may be exempted from following zoning requirements, they still have to submit their proposals to the local planning commission for its review and recommendations. See KRS 100.361(2) and City of Louisville Board of Zoning Adjustment v. Gailor, supra.

For the foregoing reasons, that part of the Franklin Circuit Court judgment which held the planning commission erred as a matter of law is affirmed and that part of the Franklin Circuit Court judgment which voided the fiscal court’s ordinance is vacated with directions to remand to the planning commission for proceedings consistent with this opinion.

 

Grannis v. Schroder, 978 S.W.2d 328 (Ky. App., 1997)

The point is that a user of agricultural land can change one agricultural use to another with impunity. KRS 413.072, enacted after Schroder’s request, guarantees the right to change without being labeled a nuisance, trespass, or zoning violation. 

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ACTIONS OTHER THAN THOSE RELATING TO REAL PROPERTY

 

KRS 413.080 Action upon equity of redemption in personal property.

After a mortgagee of personal property or any person claiming under him has had five (5) years’ continued adverse possession, no action shall be brought by the mortgagor or any person claiming under him to redeem the property.

Effective: October 1, 1942   History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2540.

 

NO ANNOTATION FOR THIS STATUTE  

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KRS 413.090 Action upon judgment, contract or bond — Fifteen-year limitation — Action for child support arrearages — Time to commence action tolled until obligations cease as to last child on order.

 

KRS 413.090   Action upon judgment, contract, or bond — Fifteen-year limitation — Action for child support arrearages — Time to commence action tolled until obligations cease as to last child on order.

Except as provided in KRS 396.205, 413.110, 413.220, 413.230 and 413.240, the following actions shall be commenced within fifteen (15) years after the cause of action first accrued:

(1)    An action upon a judgment or decree of any court of this state or of the United States, or of any state or territory thereof, the period to be computed from the date of the last execution thereon;

(2)    An action upon a recognizance, bond, or written contract, except that actions upon written contracts executed after July 15, 2014, shall be governed by KRS 413.160;

(3)    An action upon the official bond of a sheriff, marshal, clerk, constable, or any other public officer, or any commissioner, receiver, curator, personal representative, guardian, conservator, or trustee appointed by a court or authority of law;

(4)    An action upon an appeal bond or bond given on a supersedeas, attachment, injunction, order of arrest or for the delivery of property or for the forthcoming of property, or to obey or perform an order or judgment of court in an action, or upon a bond for costs, or any other bond taken by a court or judge or by an officer pursuant to the directions of a court or judge, in an action or after judgment or decree, or upon a replevin, sale, or delivery bond taken under execution or decree, upon an indemnifying bond taken under a statute, or upon a bond to suspend a proceeding, or upon a bond or obligation for the payment of money or property or for the performance of any undertaking; and

(5)    An action to recover unpaid child support arrearages, which may be initiated as one (1) cumulative action for all child support arrearages owed under a court order, with the time to commence an action under this subsection being tolled until all current child support obligations cease as to the last child covered by that order.

Effective: July 15, 2014 History: Amended 2014 Ky. Acts ch. 142, sec. 2, effective July 15, 2014. — Amended 2008 Ky. Acts ch. 21, sec. 4, effective July 15, 2008. — Amended 1988 Ky. Acts ch. 90, sec. 30, effective July 15, 1988. — Amended 1982 Ky. Acts ch. 141, sec. 130, effective July 1, 1982. — Amended 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 417, effective January 2, 1978. — Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2514. Legislative Research Commission Note (2/15/91).  The prior reference to KRS 396.025 near the beginning of this statute was the result of an apparent inadvertent transposition of digits in codifying. See 1988 Ky. Acts Ch. 90, 30 and 26. Pursuant to KRS 7.136, the text of this statute has been corrected to reflect the appropriate cross reference to KRS 396.205. Note: 1980 Ky. Acts ch. 396, sec. 141 would have amended this section effective July 1, 1982. However, 1980 Ky. Acts ch. 396 was repealed by 1982 Ky. Acts ch. 141, sec. 146, also effective July 1, 1982.

 
ANNOTATIONS:
 
Wade v. Poma Glass & Specialty Windows, Inc. (Ky., 2012) 2010-SC-000572-DG December 20, 2012

Because the term execution is subject to various interpretations, which in turn change the application of KRS 413.090(1), we must look beyond the text of the statute to the statutory scheme concerning actions on judgments and to relevant case law.

B. The Enforcement of Judgments in the Old Civil Code of Practice.

Before the current statutory scheme for the enforcement of judgments found in the Kentucky Revised Statutes, the Civil Code of Practice provided for attachments, writs of execution, and equitable actions under Section 439.  "’Attachment’ is a legal process which seizes and holds the property of the defendant until the rights of the parties are determined in the principal suit."  At or after commencing an action, a plaintiff could seek a writ of attachment against the defendant’s property as security for the satisfaction of the judgment the plaintiff might recover.  The plaintiff could also pursue an attachment on the defendant’s property being held by third parties, known as garnishees.After a court rendered a judgment in their favor, plaintiffs could seek attachments against the judgment debtor and garnishees only in connection with a suit filed under Section 439 of the Civil Code.

  The relevant text of KRS 413.090(1) dates back to 1852.  At that time, the Civil Code of Practice of Kentucky was in effect, rather than the Kentucky Revised Statutes. The Civil Code used the term execution, and various forms of the word, in both the narrow and broad sense. The 1876 Civil Code repeatedly referred to executing various types of writs, other than writs of execution. For example, Section 203 of the Civil Code delineated the situations in which an "order of attachment shall be executed."  On the other hand, Section 212 of the Civil Code used execution to mean a writ of execution: "An attachment binds the defendant’s property . . . in the same manner as an execution would bind it."

So even as early as 1876 the meaning of the term execution in the statute of limitations for actions on judgments was ambiguous. And its meaning has been litigated in Kentucky courts. This Court’s predecessor held that writs of execution and actions under Section 439 of the Civil Code toll the fifteen-year statute of limitations on the enforcement of judgments.

Slaughter and Thierman are instructive on the definition of execution. The purpose of the statute of limitations was to save "the right of the judgment creditor for [fifteen] years within which to enforce the collection of his judgment."  In Thierman and Slaughter, the Court did not limit the definition of execution in the statute of limitations to a writ of execution. On the contrary, the Court recognized that by enforcing a judgment after it was rendered through either a writ of execution or an action under Section 439 of the Civil Code, the judgment creditor tolls the statute of limitations.  This supports the conclusion that execution should be defined broadly in

KRS 413.090(1). We hold that in the fifteen-year statute of limitations for actions on judgments, the term execution is defined as an act of enforcing, carrying out, or putting into effect a judgment.

 

[U] Dallas v. Henry (Ky. App., 2012)   2011-CA-001521-MR   October 5, 2012

We must agree with Michelle that she restarted the fifteen-year statute of limitations when she filed the non-wage garnishment in 2009, fourteen years into the statutory period. While we appreciate Robert’s argument that Michelle is limited to recover only up to the amount she claimed in the non-wage garnishment, which was filed prior to the expiration of the limitations period, but not the additional interest funds, which she sought more than fifteen years from the 1995 judgment, the statute and applicable case law do not include this limiting language. Rather, the language of the statute simply provides that the fifteen-year period "is to be computed from the date of the last execution thereon." Because Michelle executed on the 1995 judgment within the limitations period, her claim for interest arising from the arrearage judgment is not barred by operation of KRS 413.090(1).

 

Riggs v. State Farm Mut. Auto. Ins. Co. (Ky. App., 2013)  July 19, 2013

Riggs asserts the circuit court erred as a matter of law when it found the two-year contractual limitation clause in his insurance policy with State Farm to be reasonable, and because it is, in fact, unreasonable, it is invalid. He argues, therefore, that the fifteen-year statute of limitations for general actions on written contracts, set forth in Kentucky Revised Statutes (KRS) 413.090, should apply. We agree and hold that the circuit court erred when it declared Riggs’ claim for UIM benefits to to be time-barred.

 

[U]  Eriksen v. Kerrick, Stivers, Coyle & Van Zant, P.L.C. (Ky. App., 2013)   2011-CA-001879-MR    June 14, 2013

  Eriksen argues the breach of contract claims did not "occur" until April 23, 2009, when the Hardin Circuit Court rendered an opinion saying these claims were barred by several grounds including res judicata because they were not originally brought in the underlying action. Eriksen maintains that until receipt of this ruling, it had fifteen years to file a breach of contract suit against Dr. Elkins under KRS 413.090(2).

Eriksen’s premise is mistaken. First, as pointed out by Appellees, res judicata was only one of many grounds mentioned by the trial court warranting dismissal. Second, it appears inconsistent to us that Eriksen would be sophisticated enough to know about the fifteen-year statute of limitations for filing a contract action, but not know piecemeal litigation is prohibited and all claims from a common event must be brought in a single action. As expressed in Wilson v. Paine, 288 S.W.3d, 284, 286 (Ky. 2009), ignorance of one’s rights does not toll the running of a statute of limitations.

….. At the end of trial, Eriksen knew it had not won on a claim of breach against Dr. Elkins and knew jurors had not been asked to find in Eriksen’s favor on such a claim because Appellees had not raised the claim. Thus, on August 31, 2006, Eriksen knew it had been wronged by Appellees and the claim accrued on that date. Perkins, 808 S.W.2d at 819. Under the "occurrence" rule, any legal malpractice claim had to be filed one year from the date the trial order and judgment became final and non-appealable which was November 13, 2006. The malpractice claim, therefore, should have been, but was not, filed by November 13, 2007.

For the foregoing reasons, the order of the Hardin Circuit Court awarding summary judgment in favor of Appellees is affirmed.

 
[U]  Duke v. Kassinger (Ky. App., 2013) 2012-CA-000986-MR    June 28, 2013

CLAYTON, JUDGE: Emmett Duke appeals from a Daviess Circuit Court order dismissing his claims against Lee Kassinger on statute of limitations grounds. We affirm.  

Kassinger filed a motion to dismiss the action, arguing that it was barred by the statute of limitations found at Kentucky Revised Statutes (KRS) 413.180(1), which governs actions brought by personal representatives. It states:

If a person entitled to bring any action mentioned in KRS 413.090 to 413.160 dies before the expiration of the time limited for its commencement and the cause of action survives, the action may be brought by his personal representative after the expiration of that time, if commenced within one (1) year after the qualification of the representative.

The trial court agreed that the action was not timely filed and entered an order dismissing Duke’s claims. This appeal by Duke followed.

Duke argues that the applicable limitations period is found at KRS 413.160, which states that "[a]n action for relief, not provided for by statute, can only be commenced within ten (10) years after the cause of action accrued."

 "A specific statute of limitation preempts a general statute of limitation where there is a conflict." Boyd v. C & H Transp., 902 S.W.2d 823, 824 (Ky. 1995). KRS 413.180 applies specifically to actions brought by personal representatives and therefore applies directly to Duke’s claims as the administrator and executor of his parents’ estates. Duke’s reliance on Wood v. Wingfield, 816 S.W.2d 899 (Ky. 1991), is misplaced. In that case, the illegitimate child of the intestate decedent came forward eight years after his death, requesting a share of his estate. The court held that the "catch all" ten-year limitation period of KRS 413.160 applied to the claims of omitted heirs for personalty. 816 S.W.2d at 904. By contrast, there is no omitted or unknown heir in this case seeking a share of the decedents’ estates.

 

Bland v. City of Mt. Wash. (Ky. App., 2012)   2011-CA-001239-MR  July 13, 2012

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.

 Prior to trial in this matter, Mount Washington made several motions for summary judgment based on the one-year limitations period, arguing that the claim was not filed within one year of the incident, but was filed within one year of Bland discovering that the water company was responsible for maintaining the hole. Those motions were overruled. At trial, the court questioned Bland directly regarding this issue, and ultimately entered a directed verdict at the close of Bland’s proof. The court indicated that its directed verdict was based on failure to give notice to the water company of the defect. Bland now appeals to this Court.

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. 

Metro Louisville/Jefferson County Gov’t v. Abma, 326 S.W.3d 1 (Ky. App., 2010) – Sept. 4, 2009. – Rehearing Denied Jan. 28, 2010 – Discretionary Review Denied b Supreme Court Dec. 10, 2010

II. What is the applicable statute of limitations?

The second issue raised on appeal by the City, and now the prime issue raised in the wake of Hasken becoming final, is the appropriate statute of limitations governing the breach of contract claim. The City argues the firefighter’s claims should be limited to five years under KRS 413.120(2), the same as for the statutory violation. The firefighters disagree, maintaining they should have the benefit of the fifteen-year window provided in KRS 413.090(2) for actions on written contracts. In reviewing the record, we note that the City did not contest application of the fifteen-year statute of limitations in its response to the firefighter’s motions for partial summary judgment on the state law contract claims or in its motion to alter, amend or vacate the proposed judgment on the contract claims. Thus, whether that issue has been preserved for our review is questionable. With few exceptions, this Court does not review complaints unless they were first argued to the trial court and that court was given an opportunity to correct any error. Smith v. Commonwealth, 567 S.W.2d 304, 306 (Ky.1978). In this instance we have chosen to address the issue and we agree with the firefighters on the merits.

The underlying cause of action is a breach of contract claim. As noted previously, in Article 2, Section 1(a) of the CBA, the parties agreed "to be subject to" state law. Therefore, it is clear to us that the fifteen-year statute of limitations governing written contracts applies to the City’s breach of the CBA. While the contract claim stems from the same miscalculation of overtime pay as the statutory violation, the two claims are separate actions and we see no reason to apply a statute of limitations for a statutory violation to a contract breach when there is a specific statute on point. "[W]hen two statutes are in conflict, the more specific statute controls the general." Light v. City of Louisville, 248 S.W.3d 559, 561 (Ky.2008). Thus, as the trial court correctly found, and the City did not challenge below, the appropriate statute of limitations is fifteen years as stated in KRS 413.090(2).

Ragland v. Estate of DiGiuro, 352 S.W.3d 908 (Ky. App., 2011) Oct. 22, 2010. – Rehearing Denied Jan. 19, 2011. – Discretionary Review Denied by Supreme Court Dec. 14, 2011.

Further, the Conner Court recognized that KRS 413.180 provides the time limitations for a personal representative of the deceased to bring a cause of action, stating:

(1) If a person entitled to bring any action mentioned in KRS 413.090 to 413.160 dies before the expiration of the time limited for its commencement and the cause of action survives, the action may be brought by his personal representative after the expiration of that time, if commenced within one year after the qualification of the representative.

(2) If a person dies before the time at which the right to bring any action mentioned in KRS 413.090 to 413.160 would have accrued to him if he had continued alive, and there is an interval of more than one year between his death and the qualification of his personal representative, that representative, for purposes of this chapter, shall be deemed to have qualified on the last day of the one-year period.

Id. at 653 (quoting KRS 413.180). The Court reasoned that, although the statute limits its scope to actions “mentioned” in KRS 413.090 to 413.160, KRS 413.140 is among those statutes and, therefore, encompassed wrongful death actions. Id.

Accordingly, Ragland argues that the one-year statute of limitations began running at the very latest on April 24, 2001, the date when Michael DiGiuro was appointed as Trent’s personal representative. He argues that the estate had until April 23, 2002, to file the wrongful death action, and in failing to do so, its claim is barred by the statute of limitations.

……. Because the Court of Appeals already made a decision that the claim was not barred by the statute of limitations, which was affirmed by the Supreme Court, the estate argues that the law-of-the-case doctrine is applicable.

Ragland’s argument does not take into account that the Court of Appeals in this case resolved the statute of limitations issue on public policy grounds, stating, “[w]e conclude that the resolution of this issue must turn on the public policy of this Commonwealth to which we look for guidance from the General Assembly.” The Court noted that there are different public policy considerations in a civil matter, such as medical malpractice or product liability cases, as compared to murder cases. The fact remains that, although previous holdings by courts in this Commonwealth have stated that wrongful death cases are governed by the one-year limitation period in KRS 413.140, the courts have not reviewed this issue in the context of a murder case. The fact also remains that the public policy of this Commonwealth is to provide victims’ families with a remedy. Because the Gaither decision did not change the law with regard to the primary basis for the Court of Appeals’ decision, but merely recognized the continuing validity of Conner, it cannot be used as an exception to the law-of-the-case doctrine.

 

Commonwealth v. EPI Healthcare, LLC (Ky. App., 2011) – June 3, 2011

.. The Commonwealth of Kentucky, Cabinet for Health and Family Services Department for Medicaid Services ("Cabinet"), appeals from an order of the Franklin Circuit Court which granted summary judgment in favor of EPI Healthcare, LLC. ("EPI"). For the following reasons, we affirm.

EPI operates nursing homes throughout Kentucky and receives reimbursement from the Cabinet through the Medicaid program. From 1988-1995, the Cabinet used a prospective payment system to reimburse Medicaid participant providers, whereby it would periodically advance funds to providers to cover their estimated costs based on the previous year’s cost reports. The Cabinet could recoup overpayments of Medicaid benefits from the providers per 907 KAR 1:110.

For each cost reporting period, the Cabinet had the right to conduct audits. Undisputedly, EPI filed its costs reports in a timely fashion at the close of each of its facilities’ fiscal years. Upon auditing EPI’s cost reporting periods from 1988-1996, the Cabinet discovered $6,866,881 in overpayments and informed EPI of the Cabinet’s intent to recoup that amount.

The Cabinet then appealed to a panel of this court, which held that recoupment for the period from 1988-1995 was barred by the 21-month statute of limitations per 907 KAR 1:110, Section 3.As to the recoupment claim for 1996, because the regulation had been amended that year by removing the 21-month limitation, this court applied the 5-year statute of limitations in KRS 413.120(2) and allowed recoupment for the 1996 cost year.

On discretionary review, the Kentucky Supreme Court affirmed this court.At the conclusion of its opinion, it stated,

Although the result may seem extreme, we simply cannot ignore the plain meaning of the language in the regulation. We note that our ruling relates only to the Cabinet’s remedy of recoupment, and we express no opinion on the Cabinet’s ability to collect the monies through some other legal avenue.

 

Shepherd v. Patel, No. 2007-CA-002600-ME (Ky. App. 6/12/2009) (Ky. App., 2009)

    Danny Shepherd appeals from the December 21, 2007, Findings of Fact, Conclusions of Law, and Judgment of the Perry Circuit Court that ordered him to pay Shirley Patel $1900 for past due child support. We affirm.

       The second issue raised by the appellant’s brief is whether the circuit court erred in failing to hold that this action was barred under KRS 413.120(2). In Schmidt v. Forehan, Ky.App., 549 S.W.2d 320, 323 (1977), a case which also involved delinquent child support, this court held that the Statute of Limitations "would not begin to run until such time as the delinquency was reduced to a lump sum payment or until emancipation of the child, whichever was the former." The court noted that the final amount due could not be fixed until the child attained his majority or was otherwise emancipated. In the case before us, the youngest child of the parties, Sandra, was emancipated when she reached her majority in October of 1971. The final amount due could not be fixed until that date. On March 17, 1981, the appellee filed the motion involved in this case which resulted in a judgment for the lump sum of $3,033.32. KRS 413.090 provides that an action upon a judgment or decree of any court of this state shall be commenced within fifteen years after the cause of action first accrued. We are of the opinion that KRS 413.090 is the applicable Statute of Limitations and that Schmidt v. Forehan, supra, correctly states the law as to when that statute begins to run under the facts of this case. Less than fifteen years elapsed between the date on which the Statute of Limitations began to run and the date on which the appellee’s action was filed. We hold that the circuit court did not err in holding that the action was not barred. 

Johnson v. University Medical Center, Inc., No. 2007-CA-002094-MR (Ky. App. 8/8/2008) (Ky. App., 2008)

 Debbie Johnson ("Johnson"), Executrix of the Estate of Mattie R. Gafford ("Gafford"), appeals from a summary judgment from the Jefferson Circuit Court’s dismissal of her complaint against University Medical Center, Inc., d/b/a University of Louisville Hospital ("University Hospital") for personal injuries Gafford suffered while in its care. We reverse the trial court’s order granting summary judgment pursuant to Kentucky Revised Statutes ("KRS") 413.180.

      The sole issue on appeal is whether an action for personal injury filed by one’s personal representative is barred unless that representative qualifies within one year from the date of injury. Johnson argues, under the plain language of KRS 413.180, a personal representative has one year after appointment to bring an action for personal injury. We agree.

        Under KRS 413.140(e), any action "against a physician, surgeon, dentist, or hospital licensed pursuant to KRS Chapter 216, for negligence or malpractice" or "for an injury to the person of the plaintiff" (KRS 413.140(a)) shall be commenced within one year after the cause of action accrued. However, KRS 413.180 reads in relevant part:

        (1) If a person entitled to bring any action mentioned in KRS 413.090 to 413.160 dies before the expiration of the time limited for its commencement and the cause of action survives, the action may be brought by his personal representative after the expiration of that time, if commenced within one (1) year after the qualification of the representative.

        (2) If a person dies before the time at which the right to bring any action mentioned in KRS 413.090 to 413.160 would have accrued to him if he had continued alive, and there is an interval of more than one (1) year between his death and the qualification of his personal representative, that representative, for purposes of this chapter, shall be deemed to have qualified on the last day of the one-year period.

        The statute limits its scope to actions "mentioned" in KRS 413.090 to 413.160. Clearly, KRS 413.140, covering personal injury claims, is explicitly included in the listed statutes. Gafford was injured on January 2, 2006; she died on May 18, 2006; Johnson was appointed personal representative on February 22, 2007; and Johnson filed this claim on July 11, 2007. Thus, we agree with Johnson that, pursuant to the plain meaning of KRS 413.180, the statute of limitations did not run before she filed this claim.

        However, University Hospital cites, and the trial court relied upon, Southeastern Kentucky Baptist Hospital, Inc. v. Gaylor, 756 S.W.2d 467 (Ky. 1988), in support of its position that the statute of limitations had expired. In Gaylor, the Supreme Court of Kentucky acknowledged prior holdings that "unless a personal representative shall qualify within one year from the injury, the action is barred." Id. at 469, quoting Louisville & N.R.R. Co. v. Brantley’s Admr., 106 Ky. 849, 51 S.W. 585 (1899).1 The Court further noted that

        if no valid personal representative is appointed within one year of the date of death, any action for wrongful death dies. However, if a personal representative is appointed within one year of the date of death, he then is granted one year from the date of his appointment to file suit. If no suit is filed within that time, the action for wrongful death dies.

  In the current case, Johnson is asserting a personal injury claim on Gafford’s behalf, not a wrongful death claim. But under the rule set out in Connor, KRS 413.180 applies to both personal injury and wrongful death claims. The Supreme Court in Reda Pump Co. v. Finck, 713 S.W.2d 818, 819-20 (Ky. 1986), noted, "We have long adhered to the rule in this jurisdiction that statutes will be construed according to the plain meaning of the words contained in the statute." It is abundantly clear in KRS 413.180 that the legislature intended that a personal representative be allowed to commence a personal injury action within one year after the qualification of the representative. Here, Johnson qualified as the decedent’s personal representative on February 22, 2007, and filed this action on July 11, 2007, well within the statutory limitations. Therefore, the trial court clearly erred in finding that the action was untimely filed.

 

Commonwealth v. EPI Corporation, 2006-SC-000348-DG (Ky. 12/18/2008) (Ky., 2008)

   The sole issue in this appeal is whether recoupment of overpaid Medicaid benefits by the Cabinet for Health and Family Services ("Cabinet") from 1988-1995 is barred by 907 KAR 1 :110, Section 3 (21 months for recoupment to be accomplished) or KRS 413.120(2) (5-year statute of limitations for liability created by statute when no time limit fixed by statute), or whether recoupment is allowed under KRS 413.090(2) (15-year statute of limitations for actions based on contract). The Court of Appeals held that recoupment for that time period was barred by the 21-month limit in 907 KAR 1:110, Section 3. On discretionary review before this Court, the Cabinet argues that the 15-year

statute of limitations for actions based on contract should apply to allow recoupment, and that EPI should not have been allowed to raise the defense of the 21-month time limit in 907 KAR 1 :110, Section 3 for the first time in the Court of Appeals. Upon review of the case, we agree with the Court of Appeals that the 21-month limitations period in 907 KAR 1 :110, Section 3 applied to bar the Cabinet from recouping the overpaid benefits. Hence, we affirm.

 

Heller v. Heller, No. 2006-CA-001746-MR (Ky. App. 1/4/2008) (Ky. App., 2008)

    ……The trial court held that Sue was not entitled to any payments before October 1990, because KRS 413.090 barred her from recovery of payments made longer than fifteen years ago. The trial court reasoned that the holding in Bollengier v. Charlet, 141 S.W.3d 14 (Ky. App. 2004), allows Sue to enforce the 1983 order because it is an installment judgment, and the statute of limitations begins to run on each installment when it is due and unpaid. Frank now appeals from that order.

        Next, Frank argues that the doctrine of laches should be applied to bar Sue’s claim to her one-third interest in his pension. KRS 413.090 provides a statute of limitations of fifteen years for a party to execute a judgment. However, as the trial court stated:

        While it is usually true that action must be made upon a judgment within fifteen years, Kentucky case law provides an exception for judgments that are payable in installments. In such instances, each installment is deemed a lump sum and the statute of limitations begins to run, as to each installment, when it is due and unpaid. Bollengier v. Charlet, 141 S.W.3d 14 (Ky. App. 2004).

        The judgment of the Jefferson Family Court is affirmed.

 

Metro Louisville/Jefferson County Government v. Abma, No. 2007-CA-001417-MR (Ky. App. 9/4/2009) (Ky. App., 2009)

    Metro Louisville/Jefferson County Government and the City of Louisville, Kentucky (collectively, the City)3 appeal from three separate rulings4 of the Jefferson Circuit Court, claiming first, that partial summary judgment was improvidently granted to two groups of firefighters, the Hasken Appellees and the Kurtsinger Appellees, because the City did not breach a series of Collective Bargaining Agreements (CBA) it had negotiated with the International Association of Firefighters, Local 345; second, that the applicable statute of limitations for any contract claim filed by the firefighters should be five years, not fifteen years as the court found; and third, that a judgment certified by the court as final and appealable was really an interlocutory order because it left unanswered too many questions about damages, costs and attorneys’ fees, many of which were specifically reserved for future determination. For their part, the Hasken Appellees have filed a cross-appeal arguing the overtime pay formula should include the clothing allowance received by firefighters. After reviewing the record and the law, we affirm in all respects the opinion and order entered by the court on June 16, 2006. We affirm in part, vacate in part, and remand for further proceedings consistent with this opinion the judgment entered on September 21, 2006. Finally, we affirm the written order entered on June 17, 2007, denying the City’s motion to alter, amend or vacate the judgment entered on September 21, 2006.

     Having established both the existence of a contract and a breach of that contract, all that remained for the firefighters to prove was the amount of damages to which they were entitled because of the breach. As evidenced by the judgment entered on September 21, 2006, the Jefferson Circuit Court found the firefighters were entitled to additional overtime pay, pre-judgment and post-judgment interest, consequential damages and costs. The judgment did not specify a dollar amount for any of these items and it reserved ruling on other items, such as the tolling of the statute of limitations on the breach of contract claim, and entitlement to liquidated damages, attorneys’ fees and costs for both the contract breach and the statutory violation. The judgment stated in relevant part:

…..        5. Since the statue (sic) of limitations on a contract claim is fifteen (15) years pursuant to KRS 413.090, this contract entitlement applies to all time periods from September 8, 1985 to date; and….

 

Firari v. Wells, No. 2008-CA-000493-MR (Ky. App. 1/23/2009) (Ky. App., 2009)

     The Kentucky statute of limitations governs when a party attempts to enforce in this Commonwealth a judgment of another state whose statute of limitations is of a longer period than ours. Fairbanks v. Large, 957 S.W.2d 307, 308 (Ky. App. 1997). The applicable statute of limitations for child support payments in Kentucky is the fifteen-year period set forth in KRS 413.090(1). The statute of limitations begins to run when each payment becomes due and unpaid. Bollengler v. Charlet, 141 S.W.3d 14, 15 (Ky. App. 2004). Later reducing the child support obligation to a lump sum does not toll the statute of limitations because each delinquent installation is deemed to be a lump sum. Id.

        Sherrill Wells turned eighteen years of age in 1975 and Cindy turned eighteen years of age in 1980. Therefore, both claims for child support are well over fifteen years old and are barred by the statute of limitations. Additionally, any claim for alimony is barred by KRS 413.090(1) because the judgment ordering alimony was entered by the Ohio court in 1967. Summary judgment was appropriate.

        Accordingly, the judgment of the Casey Circuit Court is affirmed.

 

Fairbanks v. Large, 957 S.W.2d 307 (Ky. App., 1997)

    This case presents the issue of which statute of limitations should apply to an action brought in Kentucky when the limitations period of the state from which the judgment originated has not expired, but our fifteen-year statute of limitations has lapsed. Ley v. Simmons, Ky., 249 S.W.2d 808 (1952), the Court also considered the attempted enforcement of a Florida judgment. Confident that the Full Faith and Credit Clause of our federal constitution 1 would not be offended by the application of our statute of limitations, Ley concluded that "in an action brought in this state to enforce a judgment of a court of another state whose statute of limitations is for a longer period than ours, the statute of limitations of this state should govern." Id. at 810. Mutual Trust & Deposit Co. v. Boone, Ky., 267 S.W.2d 751 (1954) (Our statute of limitations applied in an action to enforce a judgment from Indiana, which, like Florida, has a twenty-year limitations period for enforcing a judgment.).

      These cases unequivocally mandate the dismissal of the Fairbankses’ civil suit to enforce the Florida judgments. However, the Fairbankses urge that KRS 413.090 has no application to their authentication action pursuant to the UEFJA. This legislation was enacted in 1990, several years after the Ley and Boone cases. Thus, it appears that this case raises as an issue of first impression whether KRS 413.090 is implicated in enforcement proceedings commenced pursuant to KRS 426.950 et seq., or whether the limitations statute presents no impediment to the filing and enforcement under the UEFJA of a judgment which is still valid in the state of rendition. Our research reveals a split among those jurisdictions that have considered the issue. See Sara L. Johnson, Annotation, Validity, Construction, and Application of Uniform Enforcement of Foreign Judgments Act, 31 A.L.R.4th 706 (1984 & 1997 Supplement).

     We believe it is significant that when our Legislature enacted the UEFJA, it did not amend KRS 413.090, or provide within the UEFJA that it was not subject to that statute of limitations. After all, "[t]he legislature is presumed to be aware of the law at the time of the enactment of any statute." Schooler v. Commonwealth, Ky.App., 628 S.W.2d 885, 886 (1982). Because the Legislature did not provide otherwise in enacting the UEFJA, we believe it intended to make no changes in the time to act on a foreign judgment. Indeed, we believe it would be anomalous for the Legislature to endow foreign judgment creditors with a greater period to collect from debtors in Kentucky than creditors with domestic judgments. Thus, we agree with the Grayson Circuit Court’s analysis of the issue and its observations that the Legislature merely intended to make it as easy to enforce foreign judgments as domestic judgments. Accordingly, we hold that an action by a judgment creditor on a foreign judgment, which is valid and enforceable in the state of rendition, is nevertheless subject to Kentucky’s fifteen-year statute of limitations. The judgment of the Grayson Circuit Court is affirmed.

 

Conner v. George W. Whitesides Co., 834 S.W.2d 652 (Ky., 1992)

     (2) If a person dies before the time at which the right to bring any action mentioned in KRS 413.090 to 413.160 would have accrued to him if he had continued alive, and there is an interval of more than one year between his death and the qualification of his personal representative, that representative, for purposes of this chapter, shall be deemed to have qualified on the last day of the one-year period."

        The statute limits its scope to actions "mentioned" in KRS 413.090 to 413.160. The statute creating a wrongful death action, KRS 411.130, is not among the statutes listed nor is a wrongful death action "mentioned" explicitly in the listed statutes. However, KRS 413.140 is among these statutes. KRS 413.140(1) and its predecessors have been recognized for over 100 years as establishing a one year statute of limitations for wrongful death  claims. See Carden v. Louisville & N.R. Co., 101 Ky. 113, 39 S.W. 1027 (1897). We reaffirm the applicability of this statute to wrongful death claims. KRS 413.140(1) provides a one year statute of limitations for actions relating to "an injury to the person of the plaintiff." Death is simply the final injury to a person.

  ***** The purpose of KRS 413.180 is to allow time for the appointment of a personal representative and then to give that personal representative time to evaluate claims and determine whether to pursue those claims. We believe wrongful death claims must come within the purview of the statute because to rule otherwise could continue existing confusion over varying time limitations. Personal injury and wrongful death claims may be prosecuted by the personal representative in one action as was done in this case. KRS 411.133. It is reasonable to conclude the General Assembly intended for the personal representative to have the same amount of time to prosecute all claims resulting from injury to the decedent including injuries resulting in death.

 

Coy v. Hardin, 556 S.W.2d 447 (Ky., 1977)

     On October 10, 1973, the two officers arrested appellant in Bullitt County, Kentucky. An action on Officer Thomas Hardin’s official bond was filed by appellant on May 3, 1975, and the complaint against Officer Kenny Hardin and his surety was filed July 16, 1975. On October 10, 1975, the trial court entered separate orders dismissing both suits on the grounds that the actions were not commenced with in the time period prescribed by KRS 413.140.

    On this appeal appellant contends that the trial court applied the wrong statute of limitations to the instant causes of action. He maintains that the suits were governed either by KRS 413.120(2), 413.120(7), or KRS 413.090(3).

        It is the opinion of this court that the applicable statute of limitations is KRS 413.090. The police officers were sued upon their official bonds. That official bond is specifically required by KRS 95.750 to cover a policeman’s tortious act of "unnecessary or cruel treating or assault in making an arrest." KRS 413.090 allows fifteen years for the bringing of an action "upon the official bond of a sheriff, marshal, clerk, constable or any other public officer * * *."

 

Lyons v. Moise’s ex’R., 298 Ky. 858 (KY, 1944)

     6. Contracts. — While statutes of limitations are statutes of repose and it is against state’s public policy to extend them by contract, parties to oral contract are not forbidden to reduce their agreement to writing so as to invoke 15 year statute, instead of 5 year statute applicable to parol agreements. KRS 413.090. 413.120.

    The one question presented on this appeal is whether or not a claim of $13,659.68 duly proven against the estate of M. Haden Moise is barred by the statute of limitations. The master commissioner, to whom reference was made to hear and report claims against the estate in an action by the Fidelty & Columbia Trust Company as executor to settle Moise’s estate, found that this claim rested upon a parol agreement between the parties and is barred by the 5 year statute. Upon exceptions being filed to the master’s report, the chancellor overruled same and likewise held the 5 year statute, KRS 413.120, barred the claim, and this appeal followed. All other questions between the parties were reserved by the chancellor and the sole question before us is one of limitation.

      We cannot regard seriously the executor’s contention that this contract was an attempt to extend the statute of limitations on a parol agreement from 5 to 15 years and is therefore void as being against public policy. It is true that we have written that statutes of limitations are statutes of repose and that it is against the public policy of this State for them to be extended by contract.

 

Mellema’s Adm’R v. Whipple, 312 Ky. 13 (KY, 1950)

     It is the contention of appellees that the indebtedness here involved is controlled by the fifteen year statute KRS 413.090 because of the judgment entered in suit No. 3198. That would have been true if appellee Frances M. Whipple had been a party to that suit and there had been a judgment in her favor for the debt involved. But that was not the case. The only purpose of that suit was to segregate in the hands of the trustee a sum of money belonging to Patricia under the will of her grandfather from another sum belonging to her under the will of her mother but to which latter sum others were asserting some claim. Her purpose in asking this segregation and having it paid to herself was in order that she might pay certain debts admittedly owing by her. The judgment granted the relief she asked and directed the payment of the money for this purpose but it gave no judgment to the individual creditors going to make up the total debt of $1410 which the judgment says she owes. Therefore appellee has no judgment against decedent nor anybody else arising out of suit No. 3198, and KRS 413.090 is not controlling. 

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KRS 413.100 Lienee not to extend limitation as against purchasers or creditors — Exception.

No promise, acknowledgment or payment of money by any person bound on any bond or obligation for the payment of money secured by a lien shall operate as a prolongation or extension of the time within which the lien may be enforced as against purchasers or creditors, unless the promisor and the holder of the lien, before fifteen (15) years after the maturity of the debt, enters a memorandum on the margin of the record of the deed or mortgage, attested by the clerk, showing that the debt is extended, for what time it is extended and the amount still due thereon. The payee shall pay the clerk a fee pursuant to KRS 64.012 for his services.

Effective: January 1, 2007   History: Amended 2006 Ky. Acts ch. 255, sec. 37, effective January 1, 2007. — Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2514.  

NO ANNOTATION FOR THIS STATUTE 

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KRS 413.110 Action against county on bonded obligation — Three year limitation — Action on state warrant — Two year limitation.

(1) A cause of action existing against a county by virtue of its bonded obligation for the payment of money, after the county has in good faith offered to redeem the obligations that have matured by the payment in full of all principal and interest due, expires and becomes ineffective at the end of three (3) years after the offer.

(2) A cause of action for payment of any warrant of the Commonwealth expires and becomes noneffective unless brought within two (2) years after the Commonwealth has in good faith offered to redeem the warrant by payment in full of all interest and principal due.

History: Amended 1966 Ky. Acts ch. 255, sec. 270. — Amended 1942 Ky. Acts ch. 6, secs. 1, 2. — Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2514.

 
ANNOTATIONS:
 

Downs v. Downs, No. 2007-CA-000979-MR (Ky. App. 7/11/2008) (Ky. App., 2008)

   Except as provided in KRS 396.205, 413.110, 413.220, 413.230 and 413.240, the following actions shall be commenced within fifteen (15) years after the cause of action first accrued:

(1) An action upon a judgment or decree of any court of this state or of the United States, or of any state or territory thereof, the period to be computed from the date of the last execution thereon.

 (2) An action upon a recognizance, bond or written contract.

   (1) If a person entitled to bring any action mentioned in KRS 413.090 . . . except for a penalty or forfeiture, was, at the time the cause of action accrued, an infant . . . the action may be brought within the same number of years after the removal of the disability or death of the person, whichever happens first, allowed to a person without the disability to bring the action after the right accrued

  Regardless of Jeremy reaching the age of majority and the application of this statute:

        The general rule governing the commencement of the running of the statue of limitations is that the statutory period is computed from the time when the right of action that the plaintiff seeks to enforce first accrued; ordinarily, in an action based on a contract, accrual occurs as soon as there is a breach of contract . . . . 31 Williston on Contracts § 79:14 (4th ed.)

Thus, the statute of limitations does not bar Jeremy from bringing the action.

 

White v. Estates of Lee, No. 2005-CA-000845-DG (Ky. App. 5/5/2006) (Ky. App., 2006)

  Except as provided in KRS 396.205, 413.110, 413.220, 413.230 and 413.240, the following actions shall be commenced within fifteen (15) years after the cause of action first accrued:

(1) An action upon a judgment or decree of any court of this state or of the United States, or of any state or territory thereof, the period to be computed from the date of the last execution thereon.

        Thus, White argues that the judgment had to be executed within 15 years of its entry. The heirs do not concede that KRS 413.090 applies to the August 4, 1989, district court order;8 however, assuming that it does, they argue that White’s action of appealing to the circuit court and in posting a supersedeas bond clearly tolled the statute of limitations established in KRS 413.090. Thus, according to the heirs the statute of limitations had yet to expire and would not do so until May 16, 2008.

      In order to extend the statute of limitations, a party must execute on the judgment, or otherwise the 15-year statute of limitation applies. To toll the running of the statute, the execution must be issued on the debt and not just on costs. "[A debtor] may keep [a judgment] alive indefinitely by causing executions to issue on it from time to time within the period prescribed by the statute, or he may keep it alive indefinitely by commencing an action on the judgment . . . within the time and in the manner prescribed . . . and keeping the action on the docket."

     In the case now before us the debtor superseded the judgment. . . . This deprived the appellee of the right to bring any action looking to the collection or even the protection, of his judgment. The superseding of it prevented any step in that direction. This condition resulted from the act of the debtor who was a necessary party to any suit to annul his conveyance. The law gave him the right to thus stop his creditor from proceeding to collect his demand; and it would be unreasonable to permit him to exercise this right, and then allow one holding under a fraudulent conveyance from him to claim that the time during which the right to sue had been thus superseded should be estimated as a part of the limitation. This would bar the creditor of a right by lapse of time, when, during the same time, he was forbidden by law from exercising the right, and would have been in contempt of court if he had attempted to do so. It was decided Johnson v. Williams, 82 Ky. 45, that, after a judgment has been obtained and superseded by the debtor, the creditor has no right to bring an action upon it, and protect it by suing out an attachment against the debtor’s property. He cannot harass the debtor with another suit while the judgment is thus suspended, and the right to it in question. This being so, it is not supposable that such a solecism exists in the law as to say that one must exercise a right within a certain period, or he shall be barred from doing so, when during that same time, it forbids the exercise of the right.

        For the foregoing reasons, we affirm the order of the Fayette Circuit Court.

 

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KRS 413.120 Actions to be brought within five years.

The following actions shall be commenced within five (5) years after the cause of action accrued:

(1) An action upon a contract not in writing, express or implied.

(2) An action upon a liability created by statute, when no other time is fixed by the statute creating the liability.

(3) An action for a penalty or forfeiture when no time is fixed by the statute prescribing it.

(4) An action for trespass on real or personal property.

(5) An action for the profits of or damages for withholding real or personal property.

(6) An action for an injury by a trustee to the rights of a beneficiary of a trust.

(7) An action for an injury to the rights of the plaintiff, not arising on contract and not otherwise enumerated.

(8) An action upon a bill of exchange, check, draft or order, or any endorsement thereof, or upon a promissory note, placed upon the footing of a bill of exchange.

(9) An action to enforce the liability of a steamboat or other vessel.

(10) An action upon a merchant’s account for goods sold and delivered, or any article charged in such store account.

(11) An action upon an account concerning the trade of merchandise, between merchant and merchant or their agents.

(12) An action for relief or damages on the ground of fraud or mistake.

(13) An action to enforce the liability of bail.

(14) An action for personal injuries suffered by any person against the builder of a home or other improvements. This cause of action shall be deemed to accrue at the time of original occupancy of the improvements which the builder caused to be erected.

Effective: July 15, 1998  History: Amended 1998 Ky. Acts ch. 196, sec. 25, effective July 15, 1998. — Amended 1988 Ky. Acts ch. 224, sec. 6, effective July 15, 1988. — Amended 1964 Ky. Acts ch. 124, sec. 1. — Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2515, 2518.

 
ANNOTATIONS:   
 

[U] Allen v. Extendicare Homes, Inc. (Ky. App., 2012) 2012-CA-000050-MR  December 14, 2012

 Appellees filed an answer and a Kentucky Rules of Civil Procedure (CR) 12.02(f) motion to dismiss for failure to state a claim upon which relief could be granted. In the motion to dismiss, appellees argued that appellant’s claims were time-barred by operation of either the one-year statute of limitation for personal injury actions (KRS 413.140(1)(a)) or a two-year limitation period for actions by personal representatives and provided by KRS 413.180. Conversely, appellant argued that her claims were based upon statutorily created liability; thus, the applicable statute of limitations was five years as set forth in KRS 413.120.

Appellant contends that the circuit court erred by dismissing all claims against appellees as time-barred. Appellant believes that the proper statute of limitations is five years as set forth in KRS 413.120(2), as her claims were based upon statute (KRS 216.515). Appellant points out that she filed the complaint against appellees on August 1, 2011, and that Hillman was a resident of Shady Lawn from June 28, 2006, through April 21, 2007, and died on April 22, 2007. Thus, appellant argues that her complaint was timely filed well-within the five-year limitation period of KRS 216.515.

The parties’ adamantly disagree upon the applicable statute of limitations. Appellant believes KRS 413.120(2) is applicable; whereas, appellees believe that either KRS 413.140(1)(a) or KRS 413.180 is applicable.

In sum, we hold that the circuit court properly granted appellees’ CR 12.02(f) motion to dismiss appellant’s complaint as time-barred.

 

[U] Robinson v. Meece (Ky. App., 2013)  2011-CA-001479-MR   April 5, 2013

Appellants argue that the trial court erred by dismissing its complaint against Meece on the basis that their asserted claims were barred by the one-year statute of limitations per KRS 413.140. Appellants contend their complaint set forth claims under the Kentucky Civil Rights Act, KRS Chapter 344, and for the tort of outrageous conduct, both of which are pursuable under the five-year statute of limitations pursuant to KRS 413.120. We disagree.

KRS 413.120 provides that actions arising from either "a liability created by statute, when no other time is fixed by the statute creating the liability[]" or "an injury to the rights of the plaintiff, not arising on contract and not otherwise enumerated[]" shall be commenced "within five (5) years after the cause of action accrued." KRS 413.120(2) and (7). KRS 413.120 has been held applicable to claims pursued under KRS Chapter 344 and claims of outrageous conduct. See Clifton v. Midway College, 702 S.W.2d 835, 837 (Ky. 1985) (holding that KRS 413.120(2) is the proper limitations statute to be applied in civil rights actions); Craft v. Rice, 671 S.W.2d 247, 251 (Ky. 1984) (holding that the five-year statute of limitations applies to the tort of outrageous conduct because the tort involves the intentional interference with the right to be free from emotional distress).

 

Mullins v. Ashland Oil, Inc., 389 S.W.3d 149 (Ky. App., 2012) December 21, 2012

 Kentucky Revised Statutes (KRS) 413.120(4) provides that an action for trespass on either real or personal property must be filed within five years after the cause of action has accrued. In this case, it is undisputed that the Mullinses knew their property was contaminated prior to August 9, 1991, as established by the letter Mr. Mullins admitted he wrote and sent to Congressman Perkins. The Mullinses did not file their complaint until 1997, clearly outside of the five-year limitations period. We reject the Mullinses’ argument that their suit was not based upon the trespass, but rather based upon Ashland Oil’s representations that their property had been cleared of all contamination. While their attorney mentioned this theory at the hearing on the motion to alter, amend, or vacate, in order to establish that a genuine issue of material fact existed, they never officially alleged this claim before the circuit court. Accordingly, we are unable to identify any manifest injustice to support a reversal of the circuit court’s order dismissing the Mullinses’ claims.

For the foregoing reasons, the orders of the Johnson Circuit Court dismissing the Mullinses’ claims are affirmed.

 

Ingram Trucking, Inc. v. Allen, 372 S.W.3d 870 (Ky. App., 2012) Rehearing Denied July 9, 2012.   July 9, 2012

The trial court held a summary judgment hearing in February 2011, and thereafter entered an opinion and order granting summary judgment in favor of Allen. In so doing, the court held that there was no conflict between KRS 413.120(4) and KRS 413.125, and that Ingram’s cause of action was governed by the two-year statute of limitations set forth in KRS 413.125. As the accident giving rise to the property damage occurred on June 14, 2007, Allen’s complaint filed on August 3, 2010, was clearly time barred. Ingram Trucking thereafter appealed to this Court.

 KRS 413.125 states that “[A]n action for the taking, detaining, or injuring of personal property, including an action for specific recovery shall be commenced within two (2) years from the date the cause of action accrued.” KRS 413.120 provides, in pertinent part, “[T]he following actions shall be commenced within five (5) years after the cause of action accrued … (4)[A]n action for trespass on real or personal property.” Ingram Trucking argues that since a trespass to chattels involves the detaining or injuring of personal property, there is a conflict between the two statutes of limitations and therefore the longer statutory period applies. Troxell v. Trammell, 730 S.W.2d 525 (Ky.1987). We disagree.

The fatal flaw in Ingram Trucking’s argument is that a trespass to chattel, or trespass to personal property, is an intentional tort. Restatement (Second) of Torts § 217 provides that “[A] trespass to a chattel may be committed by intentionally (a) dispossessing another of the chattel, or (b) using or intermeddling with a chattel in the possession of another.” (Emphasis added). Significantly, Comment. (b) to § 217 explains:

The trial court concluded that because there was no claim or evidence that Allen intended to damage Ingram Trucking’s tractor trailer, the underlying action was simply a common law negligence suit for damages to personal property, which is governed by KRS 413.125. See American Premier Ins. Co. v. McBride, 159 S.W.3d 342 (Ky.App.2004).

The opinion and order of the Allen Circuit Court granting summary judgment in favor of Allen is affirmed. 

Wagner v. Drees Co. (Ky. App., 2013)   2012-CA-000241-MR   July 26, 2013

1. An action for personal injuries against the builder of a home must be brought within five years of the date the cause of action accrued. Kentucky Revised Statutes (KRS) 413.120(14). Likewise, the statute of limitations for a claim of negligent misrepresentation is five years. KRS 413.120(12). The statute of limitations for damage to personal property is two years. KRS 413.125. KRS 413.140(1)(a) also provides for a one-year statute of limitations for personal injury claims.   

Ray v. Ashland Oil, Inc., 389 S.W.3d 140 (Ky. App., 2012) December 21, 2012

We disagree with the appellants’ argument that the circuit court improperly dismissed the named plaintiffs for the two reasons put forth by Ashland Oil; namely, the parties agreed that the applicable statute of limitations was five years pursuant to KRS 413.120(4) and the plaintiffs did not have standing to maintain suit because they acquired their property after 1987. ….

 

Kentucky Bar Ass’n v. Thornton, 392 S.W.3d 399 (Ky., 2013) February 21, 2013

In December 1997, Lesa Harrison contacted Thornton to discuss claims relating to serious physical injuries inflicted upon her by her work supervisor and paramour, Micah Pendley. For this incident, Pendley was indicted for first-degree assault by a Warren County grand jury.

Thornton and Harrison discussed two potential civil actions against Pendley: (1) assault, which carries a limitations period of one year, KRS 413.140; and (2) intentional infliction of emotional distress (IIED), which carries a limitations period of five years, KRS 413.120. Although Thornton contends that he and Harrison agreed to await the outcome of the criminal proceedings before determining which civil claim(s) to pursue, Harrison was under the impression that “she would have to wait for the criminal case to run its course” before she could pursue civil remedies. In any event, Harrison entered into a contingency fee contract with Thornton.

  In short, Harrison hired Thornton to help recover medical costs and lost wages, and he did virtually nothing in pursuit of such. We therefore conclude that Thornton failed to provide competent representation to Harrison in violation of SCR 3.130–1.1 for allowing the limitations period for her claim for assault/battery claim to expire without her knowledge or consent, and for subsequently failing to pursue her administrative remedies through CVCB.   

Golden Oak Mining Co. v. Lucas (Ky. App., 2011) – June 17, 2011 – 2008-CA-002148

Statute of limitations; accrual of causes of action

The appellees’ causes of action included a statutory claim pursuant to KRS 350.250(3) and common law causes of action for nuisance and trespass. The parties agree that KRS 413.120 provides a five-year statute of limitations applicable to both the statutory and common law claims. KRS 413.120(2), (4).

According to Kentucky caselaw, a cause of action accrues, and the limitations period begins to run, when "the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant’s conduct." Louisville Trust Co. v. Johns-Manville Products Corp., 580 S.W.2d 497, 501 (Ky. 1979) (quoting Raymond v. Eli Lily & Co., 117 N.H. 164, 371 A.2d 170, 174 (N.H. 1977)). Golden Oak argues that appellees knew they had been injured and also that their injury may have been caused by Golden Oak’s conduct more than five years before their civil suit named it as a defendant, i.e., before February 7, 1998. We agree.

 

Ingram Trucking, Inc. v. Allen (Ky. App., 2012) – May 11, 2012 – 2011-CA-000513

On June 14, 2007, a two-vehicle accident involving a pick-up truck and a tractor trailer occurred at the intersection of Highway 31-E and Highway 231 in Allen County, Kentucky. Allen was the driver of the pickup truck and his vehicle was insured by State Farm. Morris Fishburn was the driver of the tractor trailer, which was owned by Ingram Trucking. According to the police report, Allen ran a red light and hit the tractor trailer broadside, causing property damage in excess of $11,000.

On March 18, 2010, Ingram Trucking’s counsel sent a demand letter to State Farm seeking payment for damages incurred to the tractor trailer in the accident. State Farm responded, however, that the two-year statute of limitations for claiming property damages had run and the company was no longer responsible for payment. As a result, on August 3, 2010, Ingram Trucking filed a declaratory rights action in the Allen Circuit Court seeking a ruling that the five-year statute of limitations under KRS 413.120(4) was applicable to the cause of action because the damages were the result of a trespass against chattel. After filing an answer, Allen initially filed a motion to dismiss the action based upon the two-year statute of limitations governing actions for property damage under KRS 413.125. However, he subsequently cancelled the hearing on the motion and instead filed a motion for summary judgment.

The trial court held a summary judgment hearing in February 2011, and thereafter entered an opinion and order granting summary judgment in favor of Allen. In so doing, the court held that there was no conflict between KRS 413.120(4) and KRS 413.125, and that Ingram’s cause of action was governed by the two-year statute of limitations set forth in KRS 413.125. As the accident giving rise to the property damage occurred on June 14, 2007, Allen’s complaint filed on August 3, 2010, was clearly time barred. Ingram Trucking thereafter appealed to this Court.

……KRS 413.120 provides, in pertinent part, "[T]he following actions shall be commenced within five (5) years after the cause of action accrued . . . (4) [A]n action for trespass on real or personal property." Ingram Trucking argues that since a trespass to chattels involves the detaining or injuring of personal property, there is a conflict between the two statutes of limitations and therefore the longer statutory period applies. Troxell v. Trammell, 730 S.W.2d 525 (Ky. 1987). We disagree.

The fatal flaw in Ingram Trucking’s argument is that a trespass to chattel, or trespass to personal property, is an intentional tort. Restatement (Second) of Torts § 217 provides that "[A] trespass to a chattel may be committed by intentionally (a) dispossessing another of the chattel, or (b) using or intermeddling with a chattel in the possession of another." Significantly, Comment (b) to § 217 explains:

This Section follows the commonly accepted terminology, by which there can be no unintended "trespass" to a chattel. Under the rules stated in Chapter 12 of this Restatement, the actor may be subject to liability for harm resulting from a negligent interference with a chattel. Such liability is dealt with as in other cases of negligence, in which the word "trespass" usually is not even mentioned. Under the rules stated in Chapters 20 and 21, there may also be liability for harm to a chattel resulting from strict liability, without either intent or negligence. Again any such liability is nearly always rested upon the nature of the actor’s conduct itself, without any reference to "trespass."

The trial court herein recognized the above principles in its opinion and order, in ruling:…….

……..While the tort may have originally included claims of negligence, "trespass," so far as it applied to interference with chattels, has come to be limited to intentional interferences." Restatement (Second) of Torts § 217, comment b (1965).

The trial court concluded that because there was no claim or evidence that Allen intended to damage Ingram Trucking’s tractor trailer, the underlying action was simply a common law negligence suit for damages to personal property, which is governed by KRS 413.125. See American Premier Ins. Co. v. McBride, 159 S.W.3d 342 (Ky. App. 2004).

CR 56 indicates that summary judgment should be rendered "if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any" show the absence of genuine issues of material fact. We are of the opinion that the police report was filed in the record and the matter was properly considered by the trial court. The allegations set forth in Ingram Trucking’s petition, even when considered in best light possible to Ingram Trucking, were not sufficient to avoid summary judgment. Ingram Trucking did not plead facts necessary to establish a trespass to chattel because such simply did not exist. Ingram Trucking’s cause of action was nothing more than a property damage claim arising from an automobile accident, which is unquestionably governed by the two-year statute of limitations set forth in KRS 413.125. As Ingram failed to file an action within the prescribed time limitation, the matter was properly dismissed by the trial court.

The opinion and order of the Allen Circuit Court granting summary judgment in favor of Allen is affirmed.

 

Commonwealth v. EPI Healthcare, LLC (Ky. App., 2011) – June 3, 2011 – 2010-CA-001333

EPI pursued an administrative appeal under KRSChapter 13B, disputing the amount of overpayments and argued that because the amount was calculated by regulation, recoupment was barred by the 5-year statute of limitations for actions based "upon a liability created by statute, when no other time is fixed by the statute creating the liability." KRS 413.120(2). The administrative hearing officer confirmed the amount of overpayments and determined that the Cabinet’s recoupment rights were exclusively found in the provider agreement between EPI and the Cabinet, which stated that EPI was required to refund any overpayment resulting from inappropriate or inaccurate claims as calculated by federal and state law, including Medicaid regulations. The hearing officer applied the 15-year statute of limitations for actions based on contract per KRS 413.090(2), and found in favor of the Cabinet. EPI appealed to the Anderson Circuit Court, which granted EPI’s motion for partial summary judgment on the basis that recoupment was barred by the 5-year statute of limitations per KRS 413.120.

The Cabinet then appealed to a panel of this court, which held that recoupment for the period from 1988-1995 was barred by the 21-month statute of limitations per 907 KAR 1:110, Section 3.As to the recoupment claim for 1996, because the regulation had been amended that year by removing the 21-month limitation, this court applied the 5-year statute of limitations in KRS 413.120(2) and allowed recoupment for the 1996 cost year.

On discretionary review, the Kentucky Supreme Court affirmed this court.At the conclusion of its opinion, it stated,

Although the result may seem extreme, we simply cannot ignore the plain meaning of the language in the regulation. We note that our ruling relates only to the Cabinet’s remedy of recoupment, and we express no opinion on the Cabinet’s ability to collect the monies through some other legal avenue.

Metro Louisville/Jefferson County Gov’t v. Abma, 326 S.W.3d 1 (Ky. App., 2010) – Sept. 4, 2009. Rehearing Denied Jan. 28, 2010 – Discretionary Review Denied b Supreme Court Dec. 10, 2010.

Hasken held the circuit court correctly applied the five-year statute of limitations mentioned in KRS 413.120(2) to the wage and hour law violation because KRS Chapter 337 does not specify a separate statute of limitations for such a claim. Hasken also held there was no equitable tolling of the statute under KRS 413.190(2).

The second issue raised on appeal by the City, and now the prime issue raised in the wake of Hasken becoming final, is the appropriate statute of limitations governing the breach of contract claim. The City argues the firefighter’s claims should be limited to five years under KRS 413.120(2), the same as for the statutory violation. The firefighters disagree, maintaining they should have the benefit of the fifteen-year window provided in KRS 413.090(2) for actions on written contracts. In reviewing the record, we note that the City did not contest application of the fifteen-year statute of limitations in its response to the firefighter’s motions for partial summary judgment on the state law contract claims or in its motion to alter, amend or vacate the proposed judgment on the contract claims. Thus, whether that issue has been preserved for our review is questionable. With few exceptions, this Court does not review complaints unless they were first argued to the trial court and that court was given an opportunity to correct any error. Smith v. Commonwealth, 567 S.W.2d 304, 306 (Ky.1978). In this instance we have chosen to address the issue and we agree with the firefighters on the merits.

 

Abel v. Austin, No. 2009-CA-000465-MR (Ky. App. 5/28/2010) (Ky. App., 2010)

        Thus, because the statute of limitations begins to run for one year on either the date of occurrence or the date of discovery, Kentucky’s statute of limitations is actually longer than Alabama’s statute of limitations. Alabama’s "discovery" provision is only six months and subject to a four-year cap, while Kentucky’s discovery provision is one year and subject to no cap. Consequently, pursuant to KRS 413.320, since Alabama’s statute of limitations is shorter than Kentucky’s statute, it should be used as the measuring criterion for the two Alabama appellees.

      In fact, the accrual rule is relatively simple: "[A] cause of action is deemed to accrue in Kentucky where negligence and damages have both occurred. . . . [T]he use of the word `occurrence’ in KRS 413.245 indicates a legislative policy that there should be some definable, readily ascertainable event which triggers the statute." Michels v. Sklavos, 869 S.W.2d 728, 730 (Ky. 1994)(quoting Northwestern Nat. Ins. Co. v. Osborne, 610 F.Supp. 126, 128 (D. C. Ky. 1985)) (alterations in original). But, even though the action may have accrued in Kentucky, nothing mitigates against a determination that the action also accrued in Alabama. Beasley Allen’s and Langston’s actions, including the disposition of the settlement funds, only occurred in Alabama. Therefore, we are not persuaded by appellants’ line of reasoning with regard to the "accrual" issue. The pertinent events related to the Alabama attorneys were processed, settled, reviewed, and confirmed by an Alabama court. Similarly, Beasley Allen and Langston never met with any of the appellants because they sent the settlement funds from Alabama to Kentucky via Austin for distribution.

      Clearly, KRS 413.120 is inapplicable unless appellees’ actions were intentional given that fraud must be intentional. Next, we observe that KRS 413.120(12) specifically refers to fraud and mistake, not misrepresentation as averred by the appellants in their complaint. In the case at hand, appellants are alleging that the appellee attorneys committed certain misrepresentations relating to the communication between them and their clients. This type of misrepresentation is different from fraud.

     In addition, the plain language of KRS 413.245 says that it applies to "a civil action, whether brought in tort or contract, arising out of any act or omission in rendering, or failing to render, professional services for others[.]" And the language expressly preempts "any other prescribed limitation of actions which might otherwise appear applicable[.]" See KRS 413.245. Notably, the language of the statute also encompasses any action for perceived fraud between an attorney and client. Thus, the trial court correctly interpreted the appellants’ misrepresentation count as a claim, which is based on the rendering of professional services and, thus, falls under the limitations statute KRS 413.245. To conclude, we hold that appellants’ claims of misrepresentation are under the limitations purview of KRS 413.245 because this statute applies to civil actions, whether in tort or contract, that arise out of the rendering of professional services.

CONCLUSION

        Based on the foregoing, the judgment of the Fayette Circuit Court is affirmed.   

Osborne v. Boarman, No. 2007-CA-001340-MR (Ky. App. 2/27/2009) (Ky. App., 2009)

      The trial court found KRS 413.120(4) provided that actions for damages to real property caused by another’s negligence are subject to the five-year statute of limitation. The trial court’s ruling was based on the unequivocal holding in Com., Dept. of Highways v. Ratliff, 392 S.W.2d 913 (Ky. 1965), where the Kentucky Supreme Court rejected the argument that there must be a technical trespass before KRS 413.120(4) applies. "We now hold categorically that it applies to actions for damages to real property resulting from negligence." Ratliff at 914.

        As already stated, the parties stipulated that the wall was damaged on November 2, 1995. This action was filed on August 8, 2001, more than five years after the cause of action accrued. Thus the action was barred by virtue of the statute of limitations set out in KRS 413.120(4). 

Jones v. Babbage, No. 2007-CA-001496-MR (Ky. App. 5/30/2008) (Ky. App., 2008)

    Wanda Jones ("Wanda") appeals from a summary judgment of the Christian Circuit Court dismissing her complaint against Robert Babbage ("Robert"). She argues that her action claiming title to real property under a prior, unrecorded deed is subject to the fifteen-year statute of limitations period contained in Kentucky Revised Statutes ("KRS") 413.010, and not the five-year period set out in KRS 413.120(12). We agree, as Wanda’s claim is clearly an action to recover real property. Therefore, her complaint was not untimely and the trial court erred in granting summary judgment to Robert. Hence, we reverse and remand for additional proceedings.

 

Easterly v. Metropolitan Life Insurance Company, No. 2006-CA-001580-MR (Ky. App. 2/13/2009) (Ky. App., 2009)

       Before proceeding to any of the substantive issues presented in this appeal and cross-appeal, we must first address the procedural question of whether Easterly’s claims were timely filed under the applicable statutes of limitations set forth in KRS 413.120.12 After a careful review, and extensive questioning at the oral argument of this matter, we hold Easterly’s claims were untimely filed and the trial court erred in not so finding.

      There can be no question the fraud complained of occurred in September or October 1989 when Prather allegedly altered Easterly’s application. Therefore, the five year limitations period contained in KRS 413.120(12) began running on that date. However, the saving provision of KRS 413.130(3) extended the limitations period based upon the date of Easterly’s discovery of the fraud. Easterly acknowledges discovering the results of the forgery in 1990 upon receipt of the policy and meeting with an estate planning attorney. Nevertheless, Easterly argues the actual date of discovery for statute of limitations purposes was considerably later—i.e., sometime in 1996—based upon MetLife’s concealment of the forgery. Easterly contends MetLife engaged in a continuing course of conduct intended to conceal the forgery between 1989 and 1996, and therefore the statute of limitations period should be tolled. Such tolling would render the filing of the instant complaint timely. We disagree with Easterly’s contention.

 

Commonwealth v. EPI Corporation, 2006-SC-000348-DG (Ky. 12/18/2008) (Ky., 2008)

  The sole issue in this appeal is whether recoupment of overpaid Medicaid benefits by the Cabinet for Health and Family Services ("Cabinet") from 1988-1995 is barred by 907 KAR 1 :110, Section 3 (21 months for recoupment to be accomplished) or KRS 413.120(2) (5-year statute of limitations for liability created by statute when no time limit fixed by statute), or whether recoupment is allowed under KRS 413.090(2) (15-year statute of limitations for actions based on contract). The Court of Appeals held that recoupment for that time period was barred by the 21-month limit in 907 KAR 1:110, Section 3. On discretionary review before this Court, the Cabinet argues that the 15-year statute of limitations for actions based on contract should apply to allow recoupment, and that EPI should not have been allowed to raise the defense of the 21-month time limit in 907 KAR 1 :110, Section 3 for the first time in the Court of Appeals. Upon review of the case, we agree with the Court of Appeals that the 21-month limitations period in 907 KAR 1 :110, Section 3 applied to bar the Cabinet from recouping the overpaid benefits. Hence, we affirm. 

 

White v. Whitaker Bank, Inc., No. 2007-CA-001624-MR (Ky. App. 8/29/2008) (Ky. App., 2008)

    KRS 413.120(12) requires that a claim for fraud be brought within five years after the cause of action accrues. The present fraud claim was not brought until the White’s filed their Second Amended Complaint on January 26, 2007, almost nine years following the alleged fraudulent conduct. Clearly, then, unless the limitations period contained in KRS 413.120(12) was tolled, the claim was brought outside of the five-year limitations period.

        While the trial court awarded summary judgment upon this basis, in their brief, the Whites do not specifically address the statute of limitations issue. They do allege, however, that they did not learn of the Skidmore reports until the time of Tipton’s deposition testimony in May 2006. Thus they imply that the limitations period was tolled pursuant to the discovery rule contained in KRS 413.130(3). This provision provides as follows:

        In an action for relief or damages for fraud or mistake, referred to in subsection (12) of KRS 413.120, the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake. However, the action shall be commenced within ten (10) years after the time of making the contract or the perpetration of the fraud.

        However, the discovery rule contained in KRS 413.130 has been interpreted to provide that the limitations period begins to run when, through reasonable diligence, the defrauded party could have discovered the fraud.

     Based upon the foregoing, the Whites, with the exercise of reasonable diligence and ordinary care, could have requested and obtained copies of the Skidmore reports within the five-year limitations period and discovered the alleged fraudulent conduct associated with the reports. As such, we do not believe that the Whites may avail themselves of the discovery rule contained in KRS 413.130(3). Accordingly, the statute of limitations bars their fraud claim.

 

Redmon v. Sud-Chemie Inc. Retirement Plan for Union Employees, No. 08-5121 (6th Cir. 11/18/2008) (6th Cir., 2008)

      This result is in accord with Kentucky law. Synthesizing the Kentucky cases, the Kentucky Court of Appeals held that "the five-year statute of limitations found in KRS 413.120(2) only applies where a statute creates a new theory of liability unknown at common law." Adkins v. Johnston, No. 2006-CA-000008-MR, 2006 WL 3759549, at *2 (Ky. App. Dec. 22, 2006). As examples of state statutes that created new theories of liability, the Adkins court cited the state Workers’ Compensation scheme and the Kentucky Civil Rights Act. Id. at *3 n.4 (citing Whittaker v. Brock, 80 S.W.3d 428 (Ky. 2002) (Workers’ Compensation); Ky. Comm’n on Human Rights v. Owensboro, 750 S.W.2d 422 (Ky. 1988) (Kentucky Civil Rights Act)). In contrast, Kentucky courts have declined to apply KRS § 413.120(2) to negligence claims. Id. at *2; Toche v. Am. Watercraft, 176 S.W.3d 694, 698 (Ky. App. 2005) (holding KRS § 413.120(2) inapplicable because a statute imposing "civil liability for negligent operation" merely codified common law personal injury claims); Stivers v. Ellington, 140 S.W.3d 599 (Ky. App. 2004) (holding KRS § 413.120(2) inapplicable because the Colorado Ski Safety Act provided a statutory standard of care for common law negligence action).

       Although the application of KRS § 413.120(2) results in the application of a shorter statute of limitations, this result is not unsound.

      Although it will result in the dismissal of Redmon’s ERISA claims, this result is not unfair. Redmon had over six years in which to inquire as to why Sud-Chemie stopped making annuity payments, and yet she took no steps to claim her survivor benefits. Under these circumstances, it is both compelled by KRS § 413.120(2) and fair to hold that Redmon’s claim is time-barred.

 

Vandertoll v. Commonwealth of Kentucky, 110 S.W.3d 789 (Ky., 2003)

       Here, the right of the current landowner to repurchase and the obligation of the condemnor to develop the property within eight years are both created by the statute, which is entitled, "Limitations on condemnation power — Rights of current landowner." Without the statute, neither would exist . . . . We hold that this is an action upon a liability created by statute, and the appropriate period of limitations is the five year statute in KRS 413.120(2).

        This Court has many times held that rights created by statute were governed by the five-year statute of limitations in KRS 413.120(2). See Whittaker v. Brock, Ky., 80 S.W.3d 428 (holding that KRS 413.120(2) is applicable to an action to enforce an award of workers compensation benefits); Ammerman v. Board of Education of Nicholas County, Ky., 30 S.W.3d 793 (holding that a civil rights claim for sexual discrimination was barred by KRS 413.120(2)); Kentucky Commission on Human Rights v. Owensboro, Ky., 750 S.W.2d 422, 423 (holding that "[t]he rights of the movants were created by KRS 344.230" and that "[t]herefore, since these rights are created by a statute which provides no limitation of its own, the 5-year statute of limitations found in KRS 413.120(2) should be applied."). Pike v. Harold (Chubby) Baird Gate Co., Ky. App., 705 S.W.2d 947, held that KRS 413.120(2) governed a claim for wrongful discharge against an employer. The court said, "[t]he essence of the tort alleged . . . is an interference with a right, in this case a statutory right, not a bodily injury. Thus the statute of limitations appropriate to this action is KRS 413.120(2), the five-year statute of limitations for actions upon a ‘liability created by statute . . . .’" Id. at 948. Furthermore, KRS 413.010, governing the recovery of real property, has historically applied to common law claims of adverse possession. See Columbia Gas Transmission Corp. v. Consol of Kentucky, Inc., Ky., 15 S.W.3d 727; Great Western Land Management v. Slusher, Ky., 939 S.W.2d 865; and Appalachian Regional Healthcare, Inc. v. Royal Crown Bottling Co., Ky., 824 S.W.2d 878. In the cases sub judice, the landowners’ rights to repurchase their property and the Cabinet’s obligation to offer any surplus property back to the condemnees after eight years, were both created solely pursuant to statute. Therefore, we conclude that the five-year statute of limitations contained in KRS 413.120(2) governs claims arising pursuant to KRS 416.670.

        We find no merit in the Vandertolls’ argument that no statute of limitations should apply to their claim under KRS 416.670. Moreover, this issue is moot in light of the fact that we have found the Vandertolls to not have a claim under the statute. 

American Premier Insurance Company v. McBride, No. 2003-CA-002121-MR (KY 10/8/2004) (KY, 2004)

      American Premier seeks to recover money it has paid Roberson for damage to her car. **** A car is personal property. So Roberson would be limited by KRS 413.125, which provides the limitations period for an action based on damage to personal property. **** The circuit court concluded that American Premier is bound by the same limitations period as Roberson — the two-year limitations period found in KRS 413.125.

WHY THE MVRA DOES NOT APPLY

        On the contrary, American Premier asserts that the appropriate limitations period is actually five years, based on KRS 413.120(2). KRS 413.120 lists a number of actions which "shall be commenced within five (5) years after the cause of action accrued," each of which is enumerated in one of the statute’s subsections. Among these subsections is KRS 413.120(2), which covers "[a]n action upon a liability created by statute, when no other time is fixed by the statute creating the liability." Since this action arose out of a motor vehicle accident, American Premier looked to the Motor Vehicle Reparations Act (MVRA)14 for an applicable statute of limitations.

    Because the MVRA is silent regarding the limitations period for a subrogation claim arising out of a motor vehicle accident, American Premier concludes that KRS 413.120(2) applies. ****The Gray court concluded that because the MVRA was silent regarding the applicable limitations period for a subrogation claim, the five-year limitations period in KRS 413.120(2) applied.

        But we find the instant case to be distinguishable from Gray. Gray dealt with statutory subrogation pursuant to the provisions of the MVRA18 for basic reparation benefits paid under the act to an insured for personal injury sustained in a motor vehicle accident. In the instant case, the underlying claim is one for property damage, rather than personal injury, arising out of a motor vehicle accident.

         KRS 413.120(2) establishes a five-year limitations period for "[a]n action upon a liability created by statute, when no other time is fixed by the statute creating the liability." But American Premier’s claim is based entirely upon common law and contractual law. Unlike Gray, this is not an instance in which the action at issue is "[a]n action upon a liability created by a statute." Therefore, contrary to American Premier’s assertions, KRS 413.120(2) does not apply. We find that the circuit court correctly identified the relevant statute of limitations as KRS 413.125, which establishes a two-year limitations period for actions involving injury to personal property.

         This determination necessarily disposes of American Premier’s second assertion ******For the reasons previously noted, the circuit court correctly determined that KRS 413.120(2) cannot apply to this action because it is not an action upon a liability created by a statute. Since only KRS 413.125 applies to the instant action, the fact that the limitations period found in KRS 413.120(2) is longer is irrelevant.

      Because American Premier’s complaint was filed more than two years after its subrogation claim accrued, the circuit court’s order characterized the complaint as untimely and dismissed this action for failure to state a claim upon which relief may be granted. Finding no error, we affirm the order of dismissal.

 

Vandertoll v. Com., 110 S.W.3d 789 (Ky., 2003)

      Here, the right of the current landowner to repurchase and the obligation of the condemnor to develop the property within eight years are both created by the statute, which is entitled, "Limitations on condemnation power — Rights of current landowner." Without the statute, neither would exist…. We hold that this is an action upon a liability created by statute, and the appropriate period of limitations is the five year statute in KRS 413.120(2).  

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KRS 413.125 Actions relating to personal property to be brought within two years.

An action for the taking, detaining or injuring of personal property, including an action for specific recovery shall be commenced within two (2) years from the time the cause of action accrued.

Effective: July 15, 1988  History: Created 1988 Ky. Acts ch. 224, sec. 5, effective July 15, 1988.  

ANNOTATIONS:
 

Ingram Trucking, Inc. v. Allen, 372 S.W.3d 870 (Ky. App., 2012) July 9, 2012

The trial court held a summary judgment hearing in February 2011, and thereafter entered an opinion and order granting summary judgment in favor of Allen. In so doing, the court held that there was no conflict between KRS 413.120(4) and KRS 413.125, and that Ingram’s cause of action was governed by the two-year statute of limitations set forth in KRS 413.125. As the accident giving rise to the property damage occurred on June 14, 2007, Allen’s complaint filed on August 3, 2010, was clearly time barred. Ingram Trucking thereafter appealed to this Court.

 KRS 413.125 states that “[A]n action for the taking, detaining, or injuring of personal property, including an action for specific recovery shall be commenced within two (2) years from the date the cause of action accrued.” KRS 413.120 provides, in pertinent part, “[T]he following actions shall be commenced within five (5) years after the cause of action accrued … (4) An action for trespass on real or personal property.” Ingram Trucking argues that since a trespass to chattels involves the detaining or injuring of personal property, there is a conflict between the two statutes of limitations and therefore the longer statutory period applies. Troxell v. Trammell, 730 S.W.2d 525 (Ky.1987). We disagree.

The fatal flaw in Ingram Trucking’s argument is that a trespass to chattel, or trespass to personal property, is an intentional tort. Restatement (Second) of Torts § 217 provides that “A trespass to a chattel may be committed by intentionally (a) dispossessing another of the chattel, or (b) using or intermeddling with a chattel in the possession of another.” Significantly, Comment. (b) to § 217 explains:

The trial court concluded that because there was no claim or evidence that Allen intended to damage Ingram Trucking’s tractor trailer, the underlying action was simply a common law negligence suit for damages to personal property, which is governed by KRS 413.125See American Premier Ins. Co. v. McBride, 159 S.W.3d 342 (Ky.App.2004).

The opinion and order of the Allen Circuit Court granting summary judgment in favor of Allen is affirmed.

 

Wagner v. Drees Co. (Ky. App., 2013)  2012-CA-000241-MR   July 26, 2013

1. An action for personal injuries against the builder of a home must be brought within five years of the date the cause of action accrued. Kentucky Revised Statutes (KRS) 413.120(14). Likewise, the statute of limitations for a claim of negligent misrepresentation is five years. KRS 413.120(12). The statute of limitations for damage to personal property is two years. KRS 413.125. KRS 413.140(1)(a) also provides for a one-year statute of limitations for personal injury claims.    

[U]  Price v. Johnson (Ky. App., 2013)   2011-CA-000011-MR  May 31, 2013

To the extent that Price’s complaint alleges a taking of personal property, it is time barred. KRS 413.125 requires that actions for the taking of personal property, including actions for specific recovery, "be commenced within two (2) years from the time the cause of action accrued." In his complaint, Price alleges that all of the improper actions taken by the Appellees occurred from 2000 to 2007. Because Price did not file his complaint until February 2010, his claim for a taking of personal property by the Appellees is time barred. 

Holloway v. Alexander, No. 2003-CA-002275-MR (KY 9/23/2005) (KY, 2005)

 Holloway points to two cases decided prior to the enactment of KRS 413.125, both of which held that the five-year statute of limitations in KRS 413.120 was applicable to bailment actions.10 When read closely, neither case supports her contention but in fact supports the view that KRS 413.125 now governs such actions. Prior to 1988, KRS 413.120(6) contained language identical to that now contained in KRS 413.125. Thus, the court’s reasoning was not based on the theory that the action was one for breach of contract. To the contrary, the action was one for damage to personal property then controlled by a five-year statute of limitations.11

        The circuit court properly held that the two-year statute of limitations found in KRS 413.125 bars Holloway’s action. The order dismissing the complaint is affirmed. 

American Premier Insurance Company v. McBride, No. 2003-CA-002121-MR (KY 10/8/2004) (KY, 2004)

 American Premier seeks to recover money it has paid Roberson for damage to her car. Roberson could have proceeded directly against McBride for negligently damaging her car. A car is personal property. So Roberson would be limited by KRS 413.125, which provides the limitations period for an action based on damage to personal property. KRS 413.125 states as follows: "An action for the taking, detaining or injuring of personal property, including an action for specific recovery shall be commenced within two (2) years from the time the cause of action accrued." The circuit court concluded that American Premier is bound by the same limitations period as Roberson — the two-year limitations period found in KRS 413.125.

 

Government Employees Insurance Company v. Winsett, No. 2003-CA-002769-MR (KY 12/17/2004) (KY, 2004)  

     The circuit court dismissed Government Employees Insurance Company’s (GEICO) intervening complaint for failure to state a claim because it adjudged that the Statute Of Limitations for bringing the action had expired. We reverse the judgment because the Statute of Limitations is not determinative of the issue of whether GEICO’s intervening complaint should have been allowed.

      The circuit court, in its order dismissing GEICO’s intervening complaint, found that KRS 413.125 supplied the correct Statute of Limitations. That section provides that a party must bring a claim for property damage (the only item of damage at issue here) within two years of the date of the event causing the loss. The court also determined that the date of the occurrence was April 28, 2001, and because GEICO did not file its intervening complaint until September 8, 2003, more than two years after the accident, it was time-barred.

       Thus, we hold that a subrogee who moves to intervene in an action timely filed by its subrogor should be allowed to do so even though the Statute of Limitations on the underlying claim may have run if the intervention is applied for in a timely fashion pursuant to CR 24. Prior to trial or other disposition of the case is presumptively timely. This has been impliedly recognized by this Court previously. See McCormack Baron & Assoc. v. Trudeaux, Ky. App., 885 S.W.2d 708, 711 (1994) (motion to intervene not timely because filed after judgment entered).

 

Waste Management of Kentucky, LLC v. Wilder, No. 2006-CA-002438-MR (Ky. App. 7/25/2008) (Ky. App., 2008)

       On December 19, 2003, an automobile accident occurred involving a garbage truck owned by Waste Management of Kentucky, LLC (Waste Management) and operated by one of its employees, and an EMS vehicle owned by Louisville/Jefferson County Metro Government (Louisville Metro) and operated by its employee Shawn B. Wilder. Waste Management filed suit to recover for damage to its vehicle on December 19, 2005, the final day of the two-year limitations period. See Kentucky Revised Statutes (KRS) 413.125. In the original complaint, only Louisville Metro was named as a defendant. On February 1, 2006, Waste Management filed a motion to amend its complaint to add Wilder as a defendant. The motion was granted. In the meantime, Louisville Metro filed a motion to dismiss on grounds of sovereign immunity. That motion was initially denied but was later granted after a motion to reconsider. Wilder filed a motion to dismiss the complaint against him because the statutory limitations period had expired before he was added as a party. Waste Management argued in response that the filing of the First Amended Complaint related back to the filing of the original complaint under Kentucky Rules of Civil Procedure (CR) 15.03. In October, 2006, the trial court granted both Louisville Metro’s and Wilder’s motions to dismiss. Waste Management has appealed only the order dismissing its complaint against Wilder, arguing that the circuit court erred in ruling that the First Amended Complaint did not relate back to the date of filing of the original complaint. We disagree; thus, we affirm.

      Waste Management had to know that some employee was driving Louisville Metro’s EMS vehicle when the collision occurred, but failed to name any such person in the complaint before the statute of limitations expired. Waste Management would have made a "mistake" if, to borrow Louisville Metro’s example, it had sued Gene Wilder instead of Shawn Wilder. Even then, to avail itself of the benefit of CR 15.03, Waste Management would have had to show that Shawn Wilder "knew or should have known" of the filing and had sufficient notice so as not to be prejudiced in his defense prior to the expiration of the limitations period. Id. at 169-70. This case involves no "mistake" within the meaning of CR 15.03 nor any showing that the other requirements of the rule were met. Dismissal was proper. 

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KRS 413.130 When certain actions in KRS 413.120 accrue — Regulations for.

(1) In every action upon a merchants’ account as described in subsection (10) of KRS 413.120, the limitation shall be computed from January 1 next succeeding the respective dates of the delivery of the several articles charged in the account. Judgment shall be rendered for no more than the amount of articles actually charged or delivered within five (5) years preceding that in which the action was brought. If any merchant willfully postdates any article charged in such account, or the receipt for the delivery of it, he shall forfeit ten (10) times the amount of the article postdated, to be credited against the account. This credit shall be allowed in an action on the account, without any written pleadings setting it up.

(2) In an action to recover a balance due upon a mutual open and current account concerning the trade of merchandise between merchant and merchant or their agents, as described in subsection (11) of KRS 413.120, where there have been reciprocal demands between the parties, the cause of action is deemed to have accrued from the time of the last item proved in the account claimed, or proved to be chargeable on the adverse side.

(3) In an action for relief or damages for fraud or mistake, referred to in subsection (12) of KRS 413.120, the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake. However, the action shall be commenced within ten (10) years after the time of making the contract or the perpetration of the fraud.

Effective: July 15, 1998   History: Amended 1998 Ky. Acts ch. 196, sec. 30, effective July 15, 1998. — Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. secs. 2518, 2519, 2520.  

ANNOTATIONS:
 

Newbold v. Central Bank of Jefferson County, Inc., No. 2007-CA-002544-MR (Ky. App. 1/29/2010) (Ky. App., 2010)

All of the claims raised in Ms. Newbold’s complaint are subject to the limitations period set out in KRS 413.120. The claims enumerated under KRS 413.120 must be brought within five (5) years after the cause of action accrued. The general rule is that an action "accrues" on the date of injury, and the limitations period begins to toll from that date. Caudill v. Arnett, 481 S.W.2d 668, 696 (Ky. App. 1972). However, provision is made for fraud claims where it would not have been reasonable for the plaintiff to have discovered the injury on the actual date the fraud was perpetrated. Instead, the aforementioned five (5) year limitations period does not begin to toll until the date that the fraud was discovered or, through the exercise of reasonable diligence, should have been discovered. KRS 413.130(3); Hernandez v. Daniel, 471 S.W.2d 25, 26 (Ky. 1971). This `safe-harbor period’ set out in KRS 413.130(3) is only available where the plaintiff is able to satisfy the Court as to why the fraudulent act could not, through reasonable diligence, have been discovered sooner. McCoy v. Arena, 174 S.W.2d 726, 729 (Ky. 1943). In any event, a fraud action must be brought within ten (10) years after the perpetration of the alleged fraud. KRS 413.130(3). 

 

Easterly v. Metropolitan Life Insurance Company, No. 2006-CA-001580-MR (Ky. App. 2/13/2009) (Ky. App., 2009)

  Under the provisions of KRS 413.120(12), actions for damages based on fraud or mistake must be commenced within five years after the cause of action accrues. KRS 413.130(3) states a cause of action for fraud does not accrue until the fraud is discovered, but goes on to prohibit any action being brought more than ten years after the date of "making of contract or the perpetration of the fraud."

Our review of the evidence adduced below convinces us Easterly’s claim for fraud was untimely filed.

        There can be no question the fraud complained of occurred in September or October 1989 when Prather allegedly altered Easterly’s application. Therefore, the five year limitations period contained in KRS 413.120(12) began running on that date. However, the saving provision of KRS 413.130(3) extended the limitations period based upon the date of Easterly’s discovery of the fraud. Easterly acknowledges discovering the results of the forgery in 1990 upon receipt of the policy and meeting with an estate planning attorney. Nevertheless, Easterly argues the actual date of discovery for statute of limitations purposes was considerably later—i.e., sometime in 1996—based upon MetLife’s concealment of the forgery. Easterly contends MetLife engaged in a continuing course of conduct intended to conceal the forgery between 1989 and 1996, and therefore the statute of limitations period should be tolled. Such tolling would render the filing of the instant complaint timely. We disagree with Easterly’s contention.

 

Alexander v. Lakes, No. 2007-CA-001196-MR (Ky. App. 1/16/2009) (Ky. App., 2009)

   KRS 413.130(3) states:

        In an action for relief or damages for fraud or mistake, referred to in subsection (12) of KRS 413.120, the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake. However, the action shall be commenced within ten (10) years after the time of making the contract or the perpetration of the fraud.

        The alleged fraud occurred in 1994 at the time the parties executed the deed. Confronted with a similar situation, the former Court of Appeals ruled that the discovery of fraud is deemed to occur when the alleged fraudulent deed was properly recorded. Hollifield v. Blackburn, 170 S.W.2d 910 (Ky. 1943). In the present case, the deed was recorded in November 1994. Alexander did not file suit until 2006 which is outside the maximum ten-year limitation period.

 

Skaggs v. Vaughn, 550 S.W.2d 574 (Ky. App., 1977)

 The primary issue on appeal is whether the statute of limitations bars that portion of the complaint which alleges that the execution of the deed was obtained by fraud, mistake and undue influence. The parties agree that the applicable provisions relating to limitations are set forth in KRS 413.120(12) and KRS 413.130(3).        

     KRS 413.130(3) provides:

"In an action for relief or damages for fraud or mistake, referred to in subsection (12) of KRS 413.120, the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake. However, the action shall be commenced within ten (10) years after the time of making the contract or the perpetration of the fraud."

     The deed in question is dated November 29, 1968. Skaggs’ complaint was filed January 21, 1974, more than five years after the date of the deed. Thus this action would be barred under the provisions of KRS 413.120(12) unless saved by the provisions of KRS 413.130(3).

        In a written opinion, the trial judge concluded that this action was barred by the five year statute limitation set forth in KRS 413.120(12).

       In his amended complaint filed June 14, 1974, Skaggs sought to recover the sum of $8,500.00 for money loaned to Raymond Reed on January 4, 1967. The trial court correctly held that this claim was barred by the five year statute of limitations relating to contracts not in writing. KRS 413.120(1).

        For the foregoing reasons the judgment of the circuit court is affirmed

 

White v. Whitaker Bank, Inc., No. 2007-CA-001624-MR (Ky. App. 8/29/2008) (Ky. App., 2008)

    While the trial court awarded summary judgment upon this basis, in their brief, the Whites do not specifically address the statute of limitations issue. They do allege, however, that they did not learn of the Skidmore reports until the time of Tipton’s deposition testimony in May 2006. Thus they imply that the limitations period was tolled pursuant to the discovery rule contained in KRS 413.130(3). This provision provides as follows:

        In an action for relief or damages for fraud or mistake, referred to in subsection (12) of KRS 413.120, the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake. However, the action shall be commenced within ten (10) years after the time of making the contract or the perpetration of the fraud.

        However, the discovery rule contained in KRS 413.130 has been interpreted to provide that the limitations period begins to run when, through reasonable diligence, the defrauded party could have discovered the fraud.

      Based upon the foregoing, the Whites, with the exercise of reasonable diligence and ordinary care, could have requested and obtained copies of the Skidmore reports within the five-year limitations period and discovered the alleged fraudulent conduct associated with the reports. As such, we do not believe that the Whites may avail themselves of the discovery rule contained in KRS 413.130(3). Accordingly, the statute of limitations bars their fraud claim.

 

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KRS 413.135 Action for damages arising out of injury.

(1) No action to recover damages, whether based upon contract or sounding in tort, resulting from or arising out of any deficiency in the construction components, design, planning, supervision, inspection, or construction of any improvement to real property, or for any injury to property, either real or personal, arising out of such deficiency, or for injury to the person or for wrongful death arising out of any such deficiency, shall be brought against any person after the expiration of seven (7) years following the substantial completion of such improvement.

(2) Notwithstanding the provisions of subsection (1) of this section, in the case of such an injury to property or the person or wrongful death resulting from such injury, which injury occurred during the seventh year following substantial completion of such improvement, an action to recover damages for such injury or wrongful death may only be brought within one (1) year from the date upon which such injury occurred (irrespective of the date of death), but in no event may such an action be brought more than eight (8) years after the substantial completion of construction of such improvement.

(3) Nothing in this section shall be construed as extending the period prescribed by statute for the bringing of any action for damages.

(4) As used in this section, the term "person" shall mean an individual, corporation, partnership, business trust, unincorporated association, or joint stock company; the term "substantial completion" shall be construed to mean the date upon which the owner of the structure, project, or facility first entered upon the occupancy or commenced the use thereof.

Effective: July 13, 1990   History: Repealed and reenacted 1990 Ky. Acts ch. 425, sec. 4, effective July 13, 1990. — Amended 1986 Ky. Acts ch. 479, sec. 1, effective July 15, 1986. — Created 1966 Ky. Acts ch. 246, sec. 1.  Legislative Research Commission Note. Subsection (1) of this section was amended in 1986 Acts Ch. 479, Section 1, to extend the period of time in which certain actions may be brought from five to seven years. Inadvertently, when the period of time was extended by committee amendment, subsection (2) was not amended to conform. Pursuant to KRS 7.136, the Reviser of Statutes has made a technical correction in order to make the subsections consistent.

 
ANNOTATIONS:
 

Brown v. Neel, 798 S.W.2d 690 (Ky. App., 1990)

     First, appellant contends that the 1986 general assembly did not correct the deficiencies which led the supreme court to hold Tabler v. Wallace, Ky., 704 S.W.2d 179 (1985), cert. denied, 479 U.S. 822, 107 S.Ct. 89, 93 L.Ed.2d 41 (1986), that KRS 413.135 was violative of section 59(5) of the Kentucky Constitution. We disagree.

       In Tabler the court held that the pre-1986 version of KRS 413.135 violated section 59(5) because the general assembly did not have a rational justification for conferring immunity from liability only on those engaged in the design and construction of real estate improvements while not conferring immunity on others similarly situated, such as products manufacturers and suppliers. In 1986, following the Tabler decision, KRS 413.135(1) was amended to read as follows:

        (1) No action to recover damages, whether based upon contract or sounding in tort, resulting from or arising out of any deficiency in the construction components, design, planning, supervision, inspection or construction of any improvement to real property, or for any injury to property, either real or personal, arising out of such deficiency, or for injury to the person or for wrongful death arising out of any such deficiency, shall be brought against any person [] after the expiration of seven (7) [] years following the substantial completion of such improvement.

        We conclude that KRS 413.135, as amended in 1986, no longer violates section 59(5) because it now applies to all persons within the class covered by the statute. Under the amended statute, there is no longer any distinction made between those who provide goods and those who provide services. In short, it does not offer any protection to architects and builders which is not also offered to manufacturers and suppliers. As a result, the sole constitutional deficiency found to exist in Tabler has been eliminated. It follows that the amended statute is not unconstitutional on the ground that it violates section 59(5).

 

Beverly Hills Fire Litigation, In re, 672 S.W.2d 922 (Ky., 1984)

        In this case plaintiffs allege defendants are liable for the manufacture of a defective product, "old technology" aluminum wire, subsequently used as a component part of a building. Presumably this aluminum wire has many foreseeable uses having no connection with improvements to real estate. When asked to consider whether KRS 413.135 is a bar to plaintiffs’ claims, before passing on the constitutionality of KRS 413.135 as an abstraction, the threshold question is whether the statute includes a products liability claim of this nature in the first place. This was the approach of the trial judge before the first trial. We agree. The trial judge originally expressed the opinion that the Kentucky statute was not applicable to the facts of this case.

        The Sixth Circuit viewed the case differently. It designated the defendant manufacturers in this case as " ‘materialmen’ who design products for construction projects," and as such, "within the contemplation of the statute." 695 F.2d at 224. But the language of the statute does not express coverage for "materialmen" nor does it cover "construction projects" unless they are an "improvement to real property." The Sixth Circuit concludes "that a Kentucky court would disagree with those cases reviewing similar statutes which held that materialmen were not covered by such statutes. See, e.g., Kittson City v. Wells, Denbrook & Assoc., Inc., 308 Minn. 237, 241 N.W.2d 799 (1976)." Id.

        The majority of our sister states who have considered the matter have held that, absent express language covering materialmen or suppliers, these "no-action" statutes enacted on behalf of architects and builders do not and shall not be interpreted to cover such persons. The reasoning supporting this position is sound. There is nothing in the words, history or intended purposes of the Kentucky statute, nor in any Kentucky decision, to compel the Sixth Circuit to conclude Kentucky would disagree with this point of view.

        The history and purpose of the statute is reviewed in an article in 60 Ky.Law Journal 462 (1971-72), "Recent Statutory Developments Concerning the Limitations of Actions Against Architects, Engineers, and Builders."

Kentucky adopted Sec. 402(A) of the Restatement 2d of Torts, setting up liability for the manufacture of a product in a defective condition unreasonably dangerous to the user, Dealers Transport Co. v. Battery Distributing Co., Ky., 402 S.W.2d 441 (1966), shortly after KRS 413.135 was enacted. Before that, liability of the manufacturer for a defect in a component part was practically nonexistent. The Sixth Circuit viewed these defendants as "furnishing the design" for an improvement to real property because they were "designing parts intended to become part of the realty …" 695 F.2d 225. But architects and builders, the groups authoring the legislation in question, had little reason at that time to anticipate that at a later time manufacturers would be held liable for defective design of components whether or not incorporated into a building, and less reason to protect them.

        In considering the proper construction appropriate to KRS 413.135 we are motivated in part by our duty to render the acts of the legislature viable by interpreting such acts consistent with constitutional mandates, and to avoid construction that "threatens unconstitutionality," whenever reasonably possible.

     In the present case, if the language of KRS 413.135 is interpreted to include product manufacturers within its protected class, the statute is placed in fundamental conflict with Sec. 59 of the Kentucky Constitution. Section 59 provides in pertinent part:

"Sec. 59. Local and special legislation.–The General Assembly shall not pass local or special acts concerning any of the following subjects, or for any of the following purposes, namely:

        ….  Fifth: To regulate the limitation of civil or criminal cases."

"(T)he term ‘special law’ is legislation which arbitrarily or beyond reasonable justification discriminates against some persons or objects and favor others."

        City of Louisville v. Kuntz, 104 Ky. 584, 47 S.W. 592 (1898), shortly after our Constitution was enacted, in ruling upon a somewhat analogous statute of limitations, we said:

"When the constitution prohibits the legislature from passing special laws upon any given subject, it means that all laws upon that subject shall operate alike … The legislature has power to make laws fixing the time when an action must be brought, but they must be general in their character, as the constitution prohibits the legislature from discriminating in favor of or against individuals or classes, when it declares that there shall be no special legislation on the subjects enumerated in section 59 …" 47 S.W. at 592-593.

        Certainly a law that protects product manufacturers if or when their product is used in the design or construction of a permanent improvement to real estate, but not otherwise, would discriminate in favor of such a manufacturer in an arbitrary manner and create a classification that has no reasonable justification. No one yet has suggested any reason why a special classification should be created for products because they are used in construction of a building, as opposed to a motor vehicle or some other structure that is personalty. Many products, the present one included, are subject to foreseeable uses both in real estate improvements and otherwise. The statutory interpretation offered by the defendants would not only distinguish their product from other products in an arbitrary manner, it would result in the same product having immunity in some circumstances and not in others with no reasonable justification.

In short, KRS 413.135, if interpreted to include in its protection the manufacturer of a product simply because it was used as a component part in construction of a building, would discriminate in favor of such person arbitrarily and beyond reasonable justification in violation of Sec. 59 of the Kentucky Constitution. We shall not so interpret it.

    We have not addressed the underlying question of the constitutionality of KRS 413.135 as to those persons who are within its purview. In response to the question certified to us from the United States District Court for the Eastern District of Kentucky, we answer that KRS 413.135 is not applicable to this case

 

Lee v. Fister, 413 F.2d 1286 (C.A.6 (Ky.), 1969)

 Applying these rules of construction, when KRS 413.135 is read in conjunction with the other two statutes, the apparent conflict can be reconciled and repeal by implication avoided. While KRS 413.135 enlarges the scope of the five year limitation on actions against a builder of a home to include actions for injury to real or personal property (whether the action sounds in tort or contract), it also provides for the same five year limitation on actions for personal injury against a builder of a home as was provided for in KRS 413.120(14). Thus both KRS 413.135 and KRS 413.120(14) deal with the same general area of legislation, limitations on actions against builders of homes or other improvements. Therefore, the more comprehensive language of KRS 413.135, which was a newly enacted statute rather than an amendment to an existing statute of limitations, can properly be examined to clarify the legislative intent. In particular, upon examination of all the subsections of KRS 413.135, the intent of the legislature is shown to be that all actions for personal injury are to be brought within one year from the date of the injury, but that when the cause of action for personal injury is against a builder of a home or other improvement, there is the added limitation that the action cannot be brought at all more than five years after the completion of the home or other improvement (or six years if the injury occurred in the fifth year following the completion of the home). In other words, no right of such action exists as a result of injury sustained five years and one day following completion even though the injured party would otherwise have a full year within which to sue. We conclude that this piggyback limitation was intended as an added protection to builders, who might otherwise be held liable for accidents resulting from dilapidated conditions in deteriorating structures, rather than as an extension to the rights of this particular class of injured persons.

        Therefore, we determine and hold that the District Court correctly held that the action was barred by the Kentucky one year statute of limitations.

 

Housing Now-Village West, Inc. v. Cox & Crawley, Inc., 646 S.W.2d 350 (Ky. App., 1982)

  On February 21, 1980, the appellants’ complaint pertaining to the construction of Phases I and II was dismissed with prejudice as being barred by the limitation of actions found in K.R.S. 413.135(1). All claims against Triangle Industries were dismissed as also being barred by K.R.S. 413.135(1). On February 28, 1980, the appellants made a motion to set aside the judgment of the trial court on several grounds, one of which was the constitutionality of K.R.S. 413.135. On June 22, 1981, the trial court overruled the appellants’ motion to set aside the judgment. This appeal followed. We affirm.

 

Stewart v. William H. Jolly Plumbing Co., 743 S.W.2d 861 (Ky. App., 1988)

     The trial court granted the appellee’s motion to dismiss determining that KRS 413.135(2) required appellants to bring the suit for property damage within one year of the injury instead of the five years as provided in KRS 413.120, the ordinary property damage statute. In doing so the court noted that KRS 413.135(1) was unconstitutional for the same reasons as set forth in Tabler, supra, but found no constitutional or other impairment with KRS 413.135(2). The attorney general was not notified of the constitutional attack on the reenacted statute while the matter was pending in the trial court but was named in, and served with, the notice of appeal.

      It appears to us to be an inefficient ritual to remand the case to the circuit court, have someone (either the court or a party) notify the attorney general and the attorney general, as usual in purely civil law statutes, decline the invitation to participate in the constitutional determination. Be mindful that, as in this case, it is not a question of preservation of error or issue; the circuit court considered the constitutional issue but merely did not have the benefit of the attorney general’s counsel. It is sensible for us, and for all concerned, to give notice to the attorney general, such notice having been waived on the trial level, and let him address his advice to this Court or request that the matter be remanded before the trial court.

        Therefore, the motion of the appellee to dismiss the appeal is DENIED.

 

Tabler v. Wallace, 704 S.W.2d 179 (Ky., 1985)

      In Tabler v. Wallace the Kentucky Court of Appeals reversed the summary judgment on grounds that KRS 413.135 violates the equal protection provisions of both the constitution of Kentucky and the constitution of the United States. Both Saylor v. Hall, supra, and Carney v. Moody, supra, considered and analyzed KRS 413.135 "only" under Sections 14, 54 and 241 of the Kentucky Constitution prohibiting the abolition of legal remedies for wrongful death, personal injury, property damages or defamation, but left the question of equal protection an open matter. 497 S.W.2d at 223. The Court of Appeals considered the equal protection and special legislation arguments and concluded that this statute was nothing more than a grant of immunity, arbitrary in nature, with no reasonable basis for a separate classification.

        Because of the importance of this constitutional question, we granted discretionary review. 3 The Court of Appeals then asked that we accept transfer of General Electric v. Nucor, involving the same constitutional question, pending before the Court of Appeals. We granted transfer and consolidated the cases for argument and consideration.

 Before considering the federal constitutional challenge, a threshold question is whether the statute is unconstitutional under a different and narrower provision of the Kentucky constitution. Fannin v. Williams, Ky., 655 S.W.2d 480 (1983). We have decided that KRS 413.135 violates Section 59(5) of the Kentucky Constitution, which is much more detailed and specific than the equal protection clause of the Federal Constitution. We declare the statute unconstitutional on state grounds, and do not reach the federal question.

       The Kentucky Constitution, Section 59, is entitled "Local and special legislation." It provides:

        "The General Assembly shall not pass local or special acts concerning any of the following subjects, or for any of the following purposes, namely:*****

    The general public is exposed to injury, death and property damage from the collapse of a building. As in the recent catastrophe involving the collapse of the overhead walkway in the Hyatt Regency Hotel in Kansas City, many people from all walks of life may be injured in one catastrophe caused by faulty construction. The protection of the general public is sacrificed to the interest of a special group. This is the essence of the constitutional evil addressed by Section 59, the prohibition against local and special legislation.  

      The decision of the Court of Appeals in Tabler v. Wallace is affirmed. The decision of the trial court in General Electric v. Nucor is reversed. Both cases are remanded to the trial courts for further proceedings consistent with this opinion.

 

Perkins v. Northeastern Log Homes, 808 S.W.2d 809 (Ky., 1991)

  A prefatory clause which is not part of the statute was added before the enactment clause, no doubt because Tabler v. Wallace stated the statute lacked "a reasonable basis for this legislation sufficient to justify creating a separate classification for certain persons engaged in the construction of improvements to real property." 704 S.W.2d at 185. This preface states:

        "WHEREAS, without protection by a statute of limitations there will be a chilling effect on the contributions of builders, architects, engineers, suppliers, manufacturers and materialmen to the state’s economy;"

        Thus, KRS 413.135 now protects "suppliers, manufacturers and materialmen" as well as builders, architects and engineers, but, of course, only to the extent that their products are used as "construction components" in an "improvement to real property." These revisions to avoid the constitutional shortcomings addressed in Tabler v. Wallace resurrect other special legislation problems confronted in In re Beverly Hills, supra. As we discussed earlier, in the Beverly Hills case we held the statute should not be interpreted to extend immunity to products manufacturers and suppliers because to so interpret it would make it constitutionally defective under § 59. We stated:

        "Certainly a law that protects product manufacturers if or when their product is used in the design or construction of a permanent improvement to real estate, but not otherwise, would discriminate in favor of such a manufacturer in an arbitrary manner and create a classification that has no reasonable justification. No one yet has suggested any reason why a special classification should be created for products because they are used in construction of a building, as opposed to a motor vehicle or some other structure that is personalty. Many products, the present one included, are subject to foreseeable uses both in real estate improvements and otherwise. The statutory interpretation offered by the defendants would not only distinguish their product from other products in an arbitrary manner, it would result in the same product having immunity in some circumstances and not in others with no reasonable justification." [Emphasis added]. In re Beverly Hills Fire Litigation, 672 S.W.2d at 926.

        The Beverly Hills case should have been a clear warning that the statute could not be amended to avoid the special legislation problem by extending it to "construction components." The 1986 revisions were in disregard of that warning.

        The present case serves to illustrate the arbitrariness addressed by the above quote. The construction component involved here is a preservative called "Woodlife," alleged to contain a toxic substance which can be used in all kinds of wood products. Its use as a construction component in a real estate improvement rather than a component in personalty is a purely fortuitous circumstance. As stated above in the quotation from In re Beverly Hills, to provide a statute of repose for products "in some circumstances and not in others with no reasonable justification" for making a distinction, violates § 59. The same rule is thus stated Board of Education of Jefferson County v. Board of Education of Louisville, Ky., 472 S.W.2d 496, 498 (1971):

    "A special law is legislation which arbitrarily or beyond reasonable justification discriminates against some persons or objects and favors others."

        Next, we consider the impact of §§ 14, 54 and 241 of our Constitution, quoted earlier in this Opinion. In Tabler v. Wallace, having decided KRS 413.135 was unconstitutional as special legislation, we elected not to "write Chapter Three to Saylor v. Hall and Carney v. Moody." Id. at 187. This was misconstrued as an opening to revise the statute to meet certain language in the Tabler v. Wallace opinion. This time we will address whether the statute is unconstitutional under §§ 14, 54 and 241 in order to fully answer the question certified and to avoid, if possible, yet another round of statutory revision and opinion.

        The holding in Saylor v. Hall, was:

        "The legislature’s power to enact statutes of limitation governing the time in which a cause of action must be asserted by suit is, of course, unquestioned. In this state, however, it is equally well settled that the legislature may not abolish an existing common-law right of action for personal injuries or wrongful death caused by negligence…. [T]he application of these statutory expressions to the claims here asserted destroys, pro tanto, a common-law right of action for negligence that proximately causes personal injury or death, which existed at the times the statutes were enacted. The statutory expressions as they relate to actions based on negligence perform an abortion on the right of action, not in the first trimester, but before conception.

        The right of action for negligence proximately causing injury or death, which is constitutionally protected in this state, requires more than mere conduct before recovery can be attempted. Recovery is not possible until a cause of action exists. A cause of action does not exist until the conduct causes injury that produces loss or damage….

        ‘[M]anifestly, an existing right of action cannot be taken away by legislation which shortens the period of limitation to a time that has already run.’ [Citation omitted.] Surely then, the application of purported limitation statutes in such manner as to destroy a cause of action before it legally exists cannot be permissible if it accomplishes destruction of a constitutionally protected right of action.

        In our judgment [this statute] cannot be applied to bar the plaintiffs’ claims in this action. Such application is constitutionally impermissible in this state because it would violate the spirit and language of Sections 14, 54, and 241 of the Constitution of Kentucky when read together." [Emphasis added]. 497 S.W.2d at 224-25.

        We subscribe to the law as stated in Saylor v. Hall. Carney v. Moody reaches a different result without overruling Saylor v. Hall, by limiting the application of these constitutional provisions to whether "the law as it prevailed in 1891 would have afforded the injured parties a remedy against the negligent builder or builders." 646 S.W.2d at 41. We believe that in Carney v. Moody the controlling constitutional sections have been applied more narrowly than the constitution permits so as to cause an arbitrary result, and that the cases cited in the Carney v. Moody opinion to justify the decision, Happy v. Erwin, Ky., 330 S.W.2d 412 (1959), Ludwig v. Johnson, 243 Ky. 533, 49 S.W.2d 347 (1932), and Ky. Utilities Co. v. Jackson-County Rural Electric Coop. Assoc., Ky., 438 S.W.2d 788 (1969), do not support its conclusions. Each of these cases involved statutes held unconstitutional as infringing constitutionally protected jural rights. In each it is very questionable whether the specific fact situation involved "would have given rise to a legal cause of action … when the Constitution was adopted in 1891." Carney v. Moody as quoted supra. For example, the first definitive case on the subject is Ludwig v. Johnson, supra, holding the automobile "guest statute" unconstitutional in violation of §§ 14, 54 and 241 of our Constitution. The statute barred a cause of action for damages by a guest passenger in an automobile against an owner or operator for "any injuries received, death, or any loss sustained, in case of accident, unless such accident shall have resulted from an intentional act on the part of said owner or operator." 49 S.W.2d at 348. Surely there were no cases in Kentucky establishing a cause of action, as such, for a guest passenger in an automobile against the host driver in 1890 when Kentucky Constitution §§ 54 and 241 were written. Speaking to the principle of statutory construction affording presumptive validity to statutes, our Court said:

        "Such principle, however, has no application when the enactment of the particular statute under consideration is either expressly or by necessary implication inhibited or is subversive of the purposes and intentions of the makers of the Constitution. It then becomes the duty of the courts to pronounce the statute unconstitutional.

        Prior to the enactment of the ‘guest statute,’ the rule was well settled in this state that the driver of an automobile owed an invited guest the duty of exercising ordinary care in its operation." Id. at 348-49.

        The opinion reviews the three sections of the Constitution at issue, §§ 14, 54 and 241, with appropriate comments on each. It then addresses one of the arguments presented by the appellees in the present case, that the "guest statute" had been upheld in most of our sister states where its constitutionality had been considered, stating:

"The Constitution of each of these states contains a provision similar to the provisions of section 14 of our Constitution, but there is no provision in either of the Constitutions similar to the provisions of sections 54 and 241 of our Constitution." Id. at 350.

       The point is that the critical cases on this subject, which we have cited above, afford protection of "jural rights" in a broad context as our Kentucky Constitution intended, and not in the narrow context utilized in Carney v. Moody. As stated in Tabler v. Wallace, the concept of negligence expresses "a generalized standard of care," and one that "preexisted the Kentucky Constitution." 704 S.W.2d at 187. In drafting our constitutional protections in §§ 14, 54 and 241, our founding fathers were protecting the jural rights of the individual citizens of Kentucky against the power of the government to abridge such rights, speaking to their rights as they would be commonly understood by those citizens in any year, not just in 1891. The protection afforded to jural rights is not limited definitively to fact situations existing in the year 1891. Carney v. Moody opines that not "every enlargement in the field of liability" is beyond the reach of the policy of the General Assembly, 646 S.W.2d at 41. We agree. But we do not agree that anything as fundamental as the cause of action for personal injury or wrongful death based on negligence, or, indeed, at this point in time, as the cause of action against a manufacturer based on liability in tort for a defective product, can be abolished at will by the General Assembly. Liability in tort for a defective product is not "liability without fault," as mistakenly stated in Fireman’s Fund Ins. v. Gov’t. Employees Ins., Co., Ky., 635 S.W.2d 475, 477 (1982). It is simply liability for negligent conduct as that concept has evolved over the last forty years. Nichols v. Union Underwear, Ky., 602 S.W.2d 429 (1980), the landmark case on the subject, explains that "[t]he strict liability standard is no different from that of negligence, they say, except that the seller is presumed to have knowledge of the actual condition of the product when it leaves his hands." Id. at 433. Product liability law is nothing more than the continuing historic evolution of the ancient cause of action for trespass on the case as that principle now applies in products liability cases. The plaintiffs in this case have asserted a cause of action in tort for both negligence as such and for a defective product. Both theories are based on a finding of fault and there is no reason to deny the protection of §§ 14, 54 and 241 to one or the other.

The second question certified to us from the U.S. District Court is "whether KRS 413.135 applies to latent disease cases and, if so, whether the statute of limitations commences from the date the plaintiff knows or should have discovered the injury or disease."

      Holding the statute unconstitutional obviates the need to decide whether it applies, which brings us to the larger question of whether the discovery rule applies where latent disease is caused by a deficiency in construction. Louisville Trust Co. v. Johns-Manville Products, Ky., 580 S.W.2d 497 (1979), controls the answer to this question. In the Johns-Manville Products case, the plaintiff’s decedent was exposed to asbestos fiber dust which resulted from sawing and planing asbestos boards in the course of his employment. His estate filed a personal injury and wrongful death action alleging "malignant mesothelomina, a rare type of lung cancer, caused by breathing asbestos dust and fibers." 580 S.W.2d at 498. Our Court applied the "analysis adopted by the U.S. Supreme Court in Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949)," stating "[t]he thrust of Urie is that when an injury does not manifest itself immediately the cause of action should accrue not when the injury was initially inflicted, but when the plaintiff knew or should have known that he had been injured by the conduct of the tortfeasor

     "In a case, such as the one before us, in which the injury and the discovery of the causal relationship do not occur simultaneously, it is important to articulate exactly what the discovery rule means. We believe that the proper formulation of the rule and the one that will cause the least confusion is the one adopted by the majority of courts: a cause of action will not accrue under the discovery rule until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant’s conduct." [Emphasis original]. 580 S.W.2d at 501.

        Thus in reply to Question Two certified to us by the U.S. District Court we respond that in the circumstances presented the statute of limitations commences from the date the plaintiff knew or should have discovered "not only that he has been injured but also that his injury may have been caused by the defendant’s conduct." 

Saylor v. Hall, 497 S.W.2d 218 (Ky., 1973)

      The defendants filed motions for summary judgment. The evidentiary material produced demonstrated that the plaintiffs had evidence that Hall installed the braces on the mantel in a negligent and unworkmanlike manner, and that the Johnsons knew or should have known of the dangerous but hidden condition created, and yet did not correct it or warn the Saylors of its existence. The trial judge did not reach the merits concerning the triability of the lawsuit. He decided the action against Hall, the builder, was barred by limitations because of the provisions of KRS 413.120(14) and KRS 413.135. From this order of dismissal of the builder, the plaintiffs appealed, after meeting the procedural requisites for such action.

       Returning now to the principle that we discussed in the opening of this opinion, we conclude that it is unnecessary in this case to delineate or define the outer limits of a builder’s liability in 1964 in Kentucky to a third party injured by the negligence of the builder whose work had been completed and accepted by the owner. We are satisfied that, under the precise facts of this case, the builder at that time was at the least subject to liability to third parties for negligent construction, though completed and accepted, that created a latent defect in a stone mantel and fireplace in a home where innocent third parties on the property could foreseeably be injured by such dangerous and concealed condition. Therefore, we hold that there was an existing right of action in this state for the type of negligence claimed in this lawsuit when the questioned statutes were enacted.

 

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 KRS 413.140 Actions to be brought within one year.

(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, or of her husband, his wife, child, ward, apprentice, or servant;

(b) An action for injuries to persons, cattle, or other livestock by railroads or other corporations, with the exception of hospitals licensed pursuant to KRS Chapter 216;

(c) An action for malicious prosecution, conspiracy, arrest, seduction criminal conversation, or breach of promise of marriage;

(d) An action for libel or slander;

(e) An action against a physician, surgeon, dentist, or hospital licensed pursuant to KRS Chapter 216, for negligence or malpractice;

(f) A civil action, arising out of any act or omission in rendering, or failing to render, professional services for others, whether brought in tort or contract, against a real estate appraiser holding a certificate or license issued under KRS Chapter 324A;

(g) An action for the escape of a prisoner, arrested or imprisoned on civil process;

(h) An action for the recovery of usury paid for the loan or forbearance of money or other thing, against the loaner or forbearer or assignee of either;

(i) An action for the recovery of stolen property, by the owner thereof against any person having the same in his possession;

(j) An action for the recovery of damages or the value of stolen property, against the thief or any accessory;

(k) An action arising out of a detention facility disciplinary proceeding, whether based upon state or federal law; and

(l) An action for damages arising out of a deficiency, defect, omission, error, or miscalculation in any survey or plat, whether brought in tort or contract, against a licensed professional land surveyor holding a license under KRS Chapter 322.

(2) In respect to the action referred to in paragraph (e) of subsection (1) of this section, the cause of action shall be deemed to accrue at the time the injury is first discovered or in the exercise of reasonable care should have been discovered; provided that such action shall be commenced within five (5) years from the date on which the alleged negligent act or omission is said to have occurred.

(3) In respect to the action referred to in paragraph (f) or (l) of subsection (1) of this section, the cause of action shall be deemed to accrue within one (1) year from the date of the occurrence or from the date when the cause of action was, or reasonably should have been, discovered by the party injured.

(4) In respect to the action referred to in paragraph (h) of subsection (1) of this section, the cause of action shall be deemed to accrue at the time of payment. This limitation shall apply to all payments made on all demands, whether evidenced by writing or existing only in parol.

(5) In respect to the action referred to in paragraph (i) of subsection (1) of this section, the cause of action shall be deemed to accrue at the time the property is found by its owner.

(6) In respect to the action referred to in paragraph (j) of subsection (1) of this section, the cause of action shall be deemed to accrue at the time of discovery of the liability.

(7) In respect to the action referred to in paragraph (k) of subsection (1) of this section, the cause of action shall be deemed to accrue on the date an appeal of the disciplinary proceeding is decided by the institutional warden.

Effective: June 25, 2013

History: Amended 2013 Ky. Acts ch. 48, sec. 1, effective June 25, 2013. — Amended 2002 Ky. Acts ch. 11, sec. 3, effective July 15, 2002. – Amended 2000 Ky. Acts ch. 309, sec. 1, effective July 14, 2000. — Amended 1974 Ky. Acts ch. 386, sec. 98. — Amended 1972 Ky. Acts ch. 20, sec. 1. – Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. secs. 2516, 2517, 2553.

 
ANNOTATIONS:
 

[U] Allen v. Extendicare Homes, Inc. (Ky. App., 2012) 2012-CA-000050-MR December 14, 2012

Appellees filed an answer and a Kentucky Rules of Civil Procedure (CR) 12.02(f) motion to dismiss for failure to state a claim upon which relief could be granted. In the motion to dismiss, appellees argued that appellant’s claims were time-barred by operation of either the one-year statute of limitation for personal injury actions (KRS 413.140(1)(a)) or a two-year limitation period for actions by personal representatives and provided by KRS 413.180. Conversely, appellant argued that her claims were  based upon statutorily created liability; thus, the applicable statute of limitations was five years as set forth in KRS 413.120.

Again, assuming that [appellant’s] allegations are true, since they are claims for personal injury or wrongful death and since they were not asserted within at least two years from the date of death, [appellant’s] claim is time-barred.

In the present case, KRS 235.300 merely codifies common law liability and does not create a new theory of liability. Appellant’s claim is still a basic personal injury claim under common law. We therefore conclude that the trial court correctly found that the one-year statute of limitations of KRS 413.140(1)(a) applied.

 

Potter v. Boland (Ky. App., 2012)  NO. 2011-CA-001336-MR  December 7, 2012

The Potters point out that the statute does not establish a time period when a cause of action for loss of consortium must be filed. Therefore, they reason that KRS 413.120(2), providing a five-year statute of limitations, applies when liability is created by statute and "no other time is fixed by the statute creating the liability." However, the Potters ignore KRS 413.140 as interpreted by our Supreme Court.

In Southeastern Kentucky Baptist Hospital, Inc. v. Gaylor, 756 S.W.2d 467 (Ky. 1988), a mother who delivered a stillborn fetus filed a malpractice action against a hospital and her obstetrician. She alleged two claims: (1) her individual claim for loss of consortium; and (2) a wrongful death claim on the behalf of the child’s estate. The defendants argued that the loss of consortium claim was time-barred by KRS 413.140 because it was filed more than one year after the child’s stillborn birth.

The Court quoted the applicable statutory language contained in KRS 413.140(1)(a) and (e):

Relying on the statutory language, our Supreme Court unequivocally held that the mother’s action for the loss of consortium of her child in a wrongful death action was barred by the one-year statute of limitations. Id. This case is indistinguishable from Gaylor. The Potters’ loss of consortium claim alleging medical malpractice fits squarely within the period of limitations set forth in KRS 413.140.

… However, we have no authority to deviate from the established law. The only limitation period set forth by the General Assembly for loss of consortium is contained in KRS 413.140. KRS 413.180 cannot be extended by judicial fiat. Because this issue was definitively resolved by the Kentucky Supreme Court in Gaylor, we are bound by its holding and the current statutory law.

 

Bridgefield Cas. Ins. Co. v. Yamaha Motor Mfg. Corp., 385 S.W.3d 430 (Ky. App., 2012)  October 26, 2012

A direct action by Helton must have been filed within one year after the cause of action accrued, the date of Helton’s injury on April 28, 2006. KRS 413.140(1)(a). See also Preston v. Preston, 289 Ky. 552, 553, 159 S.W.2d 414 (1942) (personal injury action accrues on date of injury). In Manies v. Croan, 977 S.W.2d 22, 23–24 (Ky.App.1998), this court held that the one-year limitations period set forth in KRS 413.140 governs personal injury actions arising from use of an all-terrain vehicle (“ATV”). Because Bridgefield failed to file its subrogation claim against Yamaha within one year of Helton’s date of injury, the trial court correctly held that its claims were barred by the statute of limitations.

In the alternative, Bridgefield argues that if the one-year statute of limitations applies, its claims were timely filed by operation of the discovery rule and the doctrine of equitable estoppel. We disagree.

 

[U] Taylor v. Univ. Med. Ctr., Inc. (Ky. App., 2013) 2011-CA-001739-MR  March 1, 2013

An action for medical malpractice must be commenced within one year after the cause of action accrued. Kentucky Revised Statutes (KRS) 413.140(1)(e). The same statute further provides that all "the causes of action shall be deemed to accrue at the time the injury is first discovered or in the exercise of reasonable care should have been discovered[.]" KRS 413.140(2).  

Our Supreme Court has explained that under the discovery rule, the statute of limitations will not commence to run until the plaintiff knows there is a "basis for a claim." Wiseman v. Alliant Hospitals, Inc., 37 S.W.3d 709, 712 (Ky. 2000). The "knowledge necessary to trigger the statue is two-pronged, one must know: (1) he has been wronged; and, (2) by whom the wrong has been committed." Id. When both knowledge requirements are satisfied, the plaintiff has been injured and the statute begins to run. The Court emphasized that the distinction between "harm" and "injury" is crucial to the Court’s analysis and explained:

Harm in the context of medical malpractice might be the loss of health following medical treatment. Injury, on the other hand, is defined as the invasion of any legally protected interest of another. Thus, injury in the medical malpractice context refers to the actual wrongdoing, or the malpractice itself. Harm could result from a successful operation where a communicated, calculated risk simply turns out poorly for the patient, although the medical treatment met the highest medical standards. In such case, there would be no injury, despite the existence of harm. Under the discovery rule, it is the date of the actual or constructive knowledge of the injury which triggers the running of the statute of limitations.

If there is a disputed issue of fact regarding when a plaintiff in a medical malpractice action discovered or should have discovered the cause of action, it is a factual issue to be resolved by the fact-finder and summary judgment is improper. Elam v. Menzies, 594 F.3d 463, 467 (6th Cir. 2010) (applying Kentucky law).

 

[U] Robinson v. Meece (Ky. App., 2013) 2011-CA-001479-MR  April 5, 2013

Appellants argue that the trial court erred by dismissing its complaint against Meece on the basis that their asserted claims were barred by the one-year statute of limitations per KRS 413.140. Appellants contend their complaint set forth claims under the Kentucky Civil Rights Act, KRS Chapter 344, and for the tort of outrageous conduct, both of which are pursuable under the five-year statute of limitations pursuant to KRS 413.120. We disagree.  

 

Ragland v. Estate of DiGiuro, 352 S.W.3d 908 (Ky. App., 2011)Oct. 22, 2010. – Rehearing Denied Jan. 19, 2011. – Discretionary Review Denied by Supreme Court Dec. 14, 2011.

On April 24, 2001, Trent’s father, Michael DiGiuro, was appointed administrator of his son’s estate, and on July 1, 2002, he filed a wrongful death complaint in Fayette Circuit Court.2 Ragland moved to dismiss the complaint based on the one-year statute of limitations for wrongful death claims pursuant to KRS 413.140. The trial court overruled the motion without comment.

In sum, we conclude that, under the facts of this particular case and in absence of a specific limitation period prescribed by the wrongful death statute, the public policy of this Commonwealth would not be furthered by using the general statute of limitations. Instead, we find that the public policy of this Commonwealth would be furthered by allowing the family of a murder victim to wait until conviction of a defendant before filing suit. There being no statutory authority or binding case law on point, we now hold narrowly that a case involving an unsolved murder has different policy considerations than other wrongful death actions and decline to apply KRS 413.140.

 
Hammers v. Plunk (Ky. App., 2011)  – October 21, 2011 – 2010-CA-000279

Wrongful death claims are generally covered under the one-year period of limitations set forth in KRS 413.180(1) and personal injury claims are generally covered under the one-year limitations period set forth in KRS 413.140(1)(a). However, in a case where the MVRA is applicable, a longer two-year period of limitations will apply. Worldwide Equipment, Inc. v. Mullins, 11 S.W.3d 50, 59 (Ky. App. 1999). Indeed,[o]ur rules of statutory construction are that a special statute preempts a general statute, that a later statute is given effect over an earlier statute, and that because statutes of limitation are in derogation of a presumptively valid claim, a longer period of limitations should prevail where two statutes are arguably applicable. Id., quoting Troxell v. Trammell, 730 S.W.2d 525, 528 (Ky. 1987). The claims in No. 2010-CA-000279-MR arise out of an automobile accident which is covered under the MVRA. Therefore the claims raised by the Estate for wrongful death and by the minor children for personal injury are covered under the two-year limitations period set forth in KRS 304.39-230(6). This two-year limitations period began to run upon the date of the last basic or added reparation payment as this payment occurred subsequent to the decedent’s injury and death in the present case. Id.

However, the children’s loss of consortium claims are not subject to the two-year limitations period set forth in KRS 304.39-230(6) because "[l]oss of consortium is not a recoverable injury within the purview of the MVRA." Floyd v. Gray, 657 S.W.2d 936, 938 (Ky. 1983). Instead, loss of consortium claims are subject to the one-year statute of limitations under KRS 413.140(1)(a). At first glance, it would appear that these claims are now time-barred. However, the loss of consortium claims were raised by the children when they were still minors. Thus, their claims are not time-barred because the statute has been tolled due to their infancy. KRS 413.170. Likewise, the personal injury claims brought by the children would also have been tolled. Id.

 

Interlock Indus., Inc. v. Rawlings, 358 S.W.3d 925 (Ky., 2012)  Oct. 27, 2011. – Rehearing Denied Feb. 23, 2012.

Discretionary review was granted in these three appeals, which arose from a single case in Shelby Circuit Court. We reviewed and heard the appeals together to decide a common issue: whether the one-year personal injury statute of limitations (KRS 413.140(1)(a)) or the two-year Motor Vehicle Reparations Act (MVRA) statute of limitations (KRS 304.39–230(6)) applies to an action for the injuries suffered by Charles Rawlings as he was rolling straps beside his tractor-trailer as it was being unloaded.

Rawlings filed his action some 13 months after the incident. The trial court emphasized the similarity of these facts to the case of State Farm Mutual Automobile Insurance Company v. Hudson, 775 S.W.2d 922 (Ky.1989), and granted the defendants summary judgment, dismissing the action based on the one-year statute of limitations for personal injury claims in KRS 413.140(1)(a). The trial court held that the two-year statute of limitations in the MVRA did not apply because KRS 304.39–020(6)(b) expressly excluded from the definition of “use of a motor vehicle” the “[c]onduct in the course of loading and unloading the vehicle unless the conduct occurs while occupying, entering into, or alighting from it.”

The Court of Appeals reversed, applying the two-year statute of limitations, and remanded for trial, agreeing with Rawlings that rolling removed straps is not part of unloading, but rather is part of the process of preparing the tractor-trailer for a return to the roadway. This Court then granted discretionary review.

We opine that Rawlings’ activity in releasing the straps and rolling them qualifies him as a participant in the unloading process. Therefore, for the reasons previously stated, the trial court correctly applied the one-year personal injury statute of limitations found in KRS 413.140(1)(a). As the trial court properly granted summary judgment, …..

Accordingly, the opinion of the Court of Appeals is reversed, and the order of the Shelby Circuit Court is hereby reinstated.

 
Frost v. Dickerson (Ky. App., 2012) – April 19, 2012 –2010-CA-000537

In this case, the trial court ruled as a matter of law that under KRS 304.39-230(1), a party suffering a loss has two years from the date thereof or two years from the last BRB payment to bring suit. It concluded this action was barred because the Frosts were aware of Dickerson’s identity, and received the last BRB payment on November 13, 2007, yet failed to file suit until December 30, 2009. The court further held that the discovery rule had "not been applied to motor vehicle accident cases to extend the statute of limitations on the allegation that the extent of the injury and the causal connection of some of the injury were unknown." Finally, the court held that Glen’s action for loss of consortium was barred because it was not covered by the MVRA, and was not brought within the one-year limitations period of KRS 413.140(a), which governs personal injuries.

Although the Frosts’ arguments are compelling, we decline to extend the discovery rule to tort actions under the MVRA because we have no statutory authority to do so. The statute of limitations set forth in KRS 304.39-230(6) makes no provision for the application of the discovery rule, unlike section (1), which expressly states that an action for reparation benefits "may be commenced not later than two (2) years after the injured person suffers the loss and either knows, or in the exercise of reasonable diligence should know, that the loss was caused by the accident[.]" Had the legislature intended the discovery rule to apply in the tort context, it could have included similar language in section (6).

As to Glen’s loss of consortium claim, it is also time-barred under the one-year limitations period of KRS 413.140(a) because it would have accrued simultaneously with Nancy’s claim. See Tomlinson, 459 S.W.2d at 168.

For the foregoing reasons, we affirm the trial court’s order dismissing the Frosts’ complaint and granting summary judgment to Dickerson

 

Salsman v. Sears, Roebuck and Company, No. 2008-CA-000743-MR (Ky. App. 3/12/2010) (Ky. App., 2010)

The court dismissed Appellants’ action on the grounds that: (1) they failed to timely file it within the one-year statute of limitations set forth in KRS 413.140(1)(a), and (2) appellee Howlett was entitled to immunity from suit. After our review, we conclude that summary judgment was prematurely granted and that genuine issues of material fact remain to be resolved. Thus, we vacate the trial court’s entry of summary judgment and remand this matter for further proceedings.

    …. appellee Howlett and the Metro Government filed a motion for summary judgment on the grounds that: (1) Appellants had failed to file their complaint within the one-year statute of limitations set forth in KRS 413.140(1)(a), and (2) Howlett and the Metro Government were entitled to immunity from suit pursuant to the Kentucky Building Code and Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001). Appellants responded to this motion with a pleading that challenged the legal claims made by Howlett and the Metro Government along with an affidavit produced by their attorney pursuant to Kentucky Rules of Civil Procedure (CR) 56.06. The response indicated that no formal discovery had been taken, and requested that discovery be allowed before any motion for summary judgment was considered.

      The parties present two general issues for this Court’s consideration: (1) whether Appellants timely filed their complaint pursuant to KRS 413.140(1)(a) and the "discovery rule," and (2) whether appellee Richard Howlett was entitled to immunity from suit under the Kentucky Building Code and Kentucky’s immunity case law.

 

Cochran v. Premier Concrete Pumping, Inc., No. 2009-CA-000457-MR (Ky. App. 4/30/2010) (Ky. App., 2010)

 Cochran’s first argument on appeal is that the trial court erred in allowing Premier Concrete to amend its Answer to include the KRS 413.140 statute of limitations. Cochran argues that Premier Concrete waived the statute of limitation defense by not affirmatively pleading it in its first Answer. CR 8.03; Thompson v. Ward, 409 S.W.2d 807 (Ky. 1966).

        Premier Concrete claims that the court properly allowed it to amend its Answer because as soon as it discovered all the relevant facts, i.e., that the MVRA might not apply, it sought to amend the Answer.

        We find there was no error. The trial court has broad discretion in allowing a pleading to be amended. CR 15.01;  Ashland Fin. Co. v. Hartford Acc. & Indem. Co., 474 S.W.2d 364 (Ky. 1971); Lawrence v. Marks, 355 S.W.2d 162 (Ky. 1961). The trial court did not abuse that discretion in allowing Premier Concrete to amend its Answer. Once Premier Concrete discovered that Cochran was injured by the hose and boom while concrete was being unloaded, it moved to amend. As the trial court held in its order granting the motion to amend, Premier Concrete made a good faith argument that it could not have known the MVRA may not have applied until after it deposed Cochran. We agree and affirm.

 

Fayette County Board of Education v. Maner, No. 2007-CA-002243-MR (Ky. App. 5/22/2009) (Ky. App., 2009)

Plaintiff has argued that the one year statute of limitations found in KRS 413.040(1)(a) applies. The Board makes its arguments using the longer limitation period so that there is no question but that the matter is time barred. Using the Plaintiff’s position that KRS 413.140(1)(a) applies, then the claims were barred by limitation on January 28, 1982.

We agree with Lynne that her federal causes of action seek relief for violations of her civil rights.6 Being the master of her complaint, this was her decision. Thus, following Collard, and in light of a seemingly apparent concession by the Board that KRS 413.140(1)(a) applies, this is the statute we will apply.

 

Johnson v. University Medical Center, Inc., No. 2007-CA-002094-MR (Ky. App. 8/8/2008) (Ky. App., 2008)

     Debbie Johnson ("Johnson"), Executrix of the Estate of Mattie R. Gafford ("Gafford"), appeals from a summary judgment from the Jefferson Circuit Court’s dismissal of her complaint against University Medical Center, Inc., d/b/a University of Louisville Hospital ("University Hospital") for personal injuries Gafford suffered while in its care. We reverse the trial court’s order granting summary judgment pursuant to Kentucky Revised Statutes ("KRS") 413.180.

  Under KRS 413.140(e), any action "against a physician, surgeon, dentist, or hospital licensed pursuant to KRS Chapter 216, for negligence or malpractice" or "for an injury to the person of the plaintiff" (KRS 413.140(a)) shall be commenced within one year after the cause of action accrued. However, KRS 413.180 reads in relevant part: …….

        The statute limits its scope to actions "mentioned" in KRS 413.090 to 413.160. Clearly, KRS 413.140, covering personal injury claims, is explicitly included in the listed statutes. Gafford was injured on January 2, 2006; she died on May 18, 2006; Johnson was appointed personal representative on February 22, 2007; and Johnson filed this claim on July 11, 2007. Thus, we agree with Johnson that, pursuant to the plain meaning of KRS 413.180, the statute of limitations did not run before she filed this claim.

 

Straub v. St. Luke Hospital, Inc., No. 2007-CA-000443-MR (Ky. App. 12/19/2008) (Ky. App., 2008)

    Appellant, Shannon Straub (Straub), sued St. Luke Hospital, Dr. …… in the Campbell Circuit Court for assault and battery and false imprisonment. Straub alleges forced stripping of her clothing, restraint, and catheritzation in the absence of a medical emergency. Straub also seeks compensation for harm she claims to have sustained when the aforementioned defendants allegedly acted in concert with City of Wilder police officer Jim Kilgore (Kilgore) to deny her substantive due process rights as guaranteed by Kentucky’s Constitution.

        In a cross-appeal, the appellees first assert that all claims against security guards Harris and Pretot and against nurse Fey should have been summarily dismissed from the circuit court action on the basis of the one year statute of limitations under KRS 413.140. Second, they argue that Straub’s claims of assault and battery should have been summarily dismissed under KRS 413.140. Third, appellees assert that the Campbell Circuit Court action was not properly filed within the ninety-day window provided by KRS 413.270. Finally, appellees argue that the trial court erroneously gave a jury instruction on punitive damages.

        Upon a thorough review of the record in this matter, we affirm in part, reverse in part, and remand this matter back to the trial court for additional proceedings not inconsistent with this opinion.

     Likewise, it is well-established that common law claims of assault and battery carry a one-year statute of limitation pursuant to KRS 413.140, and that Straub’s allegations regarding violation of constitutional rights also have a statute of limitations of one year. Million v. Raymer, 139 S.W.3d 914 (Ky. 2004). Indeed, of all the claims filed by Straub in the Campbell Circuit Court, only the tort of outrage has a five-year statute of limitations. See KRS 413.120. As noted, upon the conclusion of proof in this matter, the outrage claim was dismissed by the circuit court and that dismissal was not appealed.

       Appellees correctly note that a common law claim for assault and battery carries a one-year statute of limitations in Kentucky pursuant to KRS 413.140. However, the claim for assault and battery asserted in the Campbell Circuit Court in this matter arises out of the identical facts, circumstances, and occurrences set out in both the original complaint filed in federal court, and the complaint subsequently filed in the Campbell Circuit Court.

 

Brock v. Begley, No. 2007-CA-000960-MR (Ky. App. 5/9/2008) (Ky. App., 2008)

     Brock finally argues that the trial court improperly found that her claim was barred by KRS 411.130. First, KRS 411.130 establishes no such statute of limitations for wrongful death. Instead, KRS 413.140(1)(a) states that "[a]n action for an injury to the person of the plaintiff, or of her husband, his wife, child, ward, apprentice, or servant" must be commenced within one year after the cause of action is accrued. Therefore, we review this issue in light of KRS 413.140(1)(a) rather than KRS 411.130.

        The one-year statute of limitations applicable to personal injury or wrongful death, found in KRS 413.140(1)(a), operates as a general statute of limitations. It does not make mention of motor vehicle accidents specifically. Conversely, KRS 304.39-230(6) is a special statute of limitation, which is part and parcel of an assimilated and extensive statutory scheme, the Motor Vehicle Reparations Act (hereinafter "MVRA"), addressing the rights and liabilities of persons involved in motor vehicle accidents. See Troxell v. Trammell, 730 S.W.2d 525, 528 (Ky. 1987); Worldwide Equipment, Inc. v. Mullins, 11 S.W.3d 50, 59 (Ky.App. 1999).

        Our rules of statutory construction are that a special statute preempts a general statute, that a later statute is given effect over an earlier statute, and that because statutes of limitation are in derogation of a presumptively valid claim, a longer period of limitations should prevail where two statutes are arguably applicable. Thus the statutory language in KRS 304.39-230(6) applies rather than the statutory language in KRS 413.140(1)(a) in the present situation where the cause of action is both a motor vehicle accident and a [wrongful death] claim.

 

Emberton v. GMRI, Inc., No. 2007-SC-000443-DG (Ky. 10/29/2009) (Ky., 2009)

    This is an appeal from a Court of Appeals’ opinion reversing the Judgment of the Warren Circuit Court in favor of Appellant/ Cross-Appellee, Tim Emberton ("Emberton"), on the grounds that his personal injury action against Appellee/Cross-Appellant, GMRI Inc. ("GMRI"), was untimely filed and thus barred by the statute of limitations. For reasons that GMRI actively concealed Emberton’s probable cause of action, we hold that his suit was timely filed. Having also addressed GMRI’s cross-appeal, we reverse the decision of the Court of Appeals and reinstate the judgment of the Warren Circuit Court.

   Prior to trial, GMRI moved for summary judgment, alleging that Emberton had failed to file his suit within the one-year statute of limitations, pursuant to KRS 413.140(1)(a). In response, Emberton filed an affidavit, explaining that, in spite of his attempts, he did not discover the source of his illness until May of 2004.8 The trial court overruled GMRI’s motion and concluded that:

        [Emmberton knew that he had been harmed. He knew that. He readily knew that he had been harmed. But that is not the definition. The question is whether or not he was injured… It was not until he realized that he had been injured [that the limitations period began to run]. That’s the way I’m going to rule on it… I think that the Wiseman[v. Alliant Hospitals, 37 S.W.3d 709 (Ky. 2000)] case is enough on point in this matter that it’s within the statute of limitations. So I’m going to overrule the motion for summary judgment.

 Accordingly, we hold that KRS 413.140(X) (a) was tolled for the effective time of the concealment, ending in May of 2004. Therefore, Emberton’s suit, filed three months later, was timely and not barred by the statute of limitations.

   For the forgoing reasons, the decision of the Court of Appeals is hereby reversed and the judgment of the Warren Circuit Court is reinstated.

 

Phillips v. Richard, No. 2007-CA-002587-MR (Ky. App. 6/5/2009) (Ky. App., 2009)

        Laura Phillips, Administrator of the Estate of Allowisha Phillips, appeals from an opinion and order of the Fayette Circuit Court dismissing her claim against John Richard, M.D., because the estate’s amended complaint was barred by the applicable statute of limitations.

   The appellants in Gilbert, Bill, Bowling, Martin, and Butner are now operating under KRS 413.140(1)(e), which provides that actions against physicians, etc. for negligence or malpractice must be commenced within one year after the cause of action accrued. In these five cases, it is clear the appellants’ cause of action accrued, and the statute began to run, at the date of death. See Farmers Bank & Trust Co. v. Rice, Ky., 674 S.W.2d 510, 512 (1984). Even in cases where the discovery rule has been applied, we have held that the cause of action accrues when the fact of injury is known. See, e.g., Tomlinson v. Siehl, Ky., 459 S.W.2d 166 (1970). In these five cases, death is the injury that put appellants on notice to investigate.

         In the present case, the amended complaint was properly dismissed. There is no allegation that the facts were misrepresented to the estate or that it could not have discovered any alleged negligence by Dr. Richard prior to the expiration of two years following Mr. Phillips’s death. To the contrary, the report received on July 12, 2006, indicated Dr. Richard’s negligence but the estate decided not to file the amended complaint until June 29, 2007, two years and six months after Mr. Phillips’s death.

        Based on the foregoing, the order dismissing the amended complaint filed by the estate against Dr. Richard is affirmed.  

Conner v. George W. Whitesides Co., 834 S.W.2d 652 (Ky., 1992)

 Since KRS 413.140(1) is within the statutes listed in KRS 413.180, then the question becomes whether wrongful death claims naturally come within the purview of the latter statute. The former Court of Appeals addressed this question and concluded that the predecessors to KRS 413.180 did not apply to wrongful death claims.

The General Assembly has reenacted the inclusive reference to KRS 413.140 which the courts have stated expresses the wrongful death limitation but restricted the extension in KRS 413.180(2) to one year so that the effect of including the wrongful death limitation in KRS 413.140(1) within the reach of KRS 413.180(2) is a reasonable extension to two years from date of death.

        Faulkner’s Adm’r. v. L & N, Totten v. Loventhal and Massie v. Persson, supra, reasoned that KRS 413.180 did not apply to a wrongful death claim by taking the literal view that the decedent never had such a claim in his lifetime, but by the same kind of strictly literal statutory application we would have to conclude that KRS 413.140(1) does not expressly include wrongful death claims, and therefore such claims have no applicable statute of limitations. Our reasoning should be consistent. Faulkner’s Adm’r., Totten, and Massie are overruled.

     Under the above-stated rule, movant filed this suit within the time provided by law. Therefore, the Court of Appeals is reversed and this case is remanded to the trial court for further proceedings.

 

McCollum v. Sisters of Charity of Nazareth Health Corp., 799 S.W.2d 15 (Ky., 1990)

The six cases before us present an attack on the constitutionality of the portion of KRS 413.140(2) that places a five-year cap on the institution of negligence or malpractice actions against physicians, surgeons, dentists, and hospitals. We hold that this part of the statute is unconstitutional as it violates the open courts provisions of the Kentucky Constitution. See Kentucky Const. §§ 14, 54, and 241.

        In the first case, Richard McCollum fractured his left femur in 1970 and had two plates and some metal screws inserted in his leg to repair the break. In 1972, he had surgery to remove the hardware. ****** Some 13 years later, in the fall of 1985, McCollum began experiencing pain in the previously injured leg. In the process of treatment, it was discovered that an orthopedic screw had been left in the tissue of his leg, and additional surgery was required to remove the screw. He filed medical malpractice claims against the doctor, hospital, and clinic on October 10, 1986, within one year of the discovery of the imbedded screw. The Fayette Circuit Court granted the respondents’ motion for summary judgment on the grounds that the action was barred "by the statute of limitations contained in KRS 413.140," which the court found to be constitutional. The Court of Appeals affirmed, and we granted discretionary review.

        The other five cases involve incidents that occurred in Marymount Hospital in London, Kentucky. Five patients died between July 28, 1970, and January 26, 1971, apparently the victims of Donald Harvey, an employee of the hospital which was then owned and operated by appellee Nazareth Literary and Benevolent Institution. Harvey confessed in 1987 to committing the multiple murders, and the various parties herein filed suit within one year of the confession, stating actions in negligence, wrongful death, and survival. The Laurel Circuit Court dismissed all five actions "on the grounds that all of the Plaintiff[s]’ causes of action are barred pursuant to the applicable statute of limitations, KRS 413.140(1)(e) and KRS 413.140(2), because … the … causes of action arose more than five (5) years prior to the institution" of these suits. The trial court held the statute to be constitutional. The five parties appealed to the Court of Appeals. We granted transfer of their appeals to this Court and ordered that the cases be heard with McCollum v. Sisters of Charity.

        The statute in question, KRS 413.140, provides in pertinent part:

"413.140. Actions to be brought within one year.–(1) The following actions shall be commenced within one (1) year after the cause of action accrued: *****

(e) An action against a physician, surgeon, dentist or hospital … for negligence or malpractice. ******

(2) In respect to the action referred to in paragraph (e) of subsection (1) of this section, the cause of action shall be deemed to accrue at the time the injury is first discovered or in the exercise of reasonable care should have been discovered: Provided That such action shall be commenced within five (5) years from the date on which the alleged negligent act or omission is said to have occurred."

      Labeling the five-year cap of KRS 413.140(2) as a statute of repose does not dispose of the matter but does establish the potential for a constitutional conflict. Movants argue that by cutting off claims that have not accrued within the five-year period, KRS 413.140(2) runs afoul of sections 14, 54 and 241 of the Kentucky Constitution, the so-called "open courts" provisions. We agree.

       Our research indicates that a medical malpractice cause of action existed long before the 1891 constitution. See, e.g., Piper v. Menifee, 51 Ky. (12 T.B.Mon.) 465, 468 (1851). Thus, KRS 413.140(2) serves to extinguish a common-law cause of action by denying movant access to the courts. McCollum could not recover until a cause of action existed. Proof of damage is an essential part of his medical malpractice cause of action. Such proof was not available to him until 1985, when he first discovered his injury. Yet the legislature, through the five-year cap in KRS 413.140(2), would require McCollum to do the impossible–sue before he had any reason to know he should sue. This is antithetical to the purpose of the open courts provisions in the Kentucky Constitution. Movant need not board this bus to Topsy-Turvy Land.

     Thus, we hold that portion of 413.140(2) which purports to cut off negligence and malpractice actions against physicians, surgeons, dentists, and hospitals at five years to be unconstitutional under sections 14, 54, and 241 of the Kentucky Constitution. The decision of the Court of Appeals in McCollum v. Sisters of Charity is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

 

 Toche v. American Watercraft, 176 S.W.3d 694 (KY, 2005)

     On appeal, Toche contends that the trial court erred in finding that the one-year statute of limitations of KRS 413.140 applies to her claims. KRS 413.140(1) provides: "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. . . ." Toche contends that KRS 413.120, not KRS 413.140(1)(a), is controlling, on grounds that her claims arise by statute. KRS 413.120, provides: "The following actions shall be commenced within five (5) years after the cause of action accrued: . . . (2) An action upon a liability created by statute, when no other time is fixed by the statute creating the liability."

      In the present case, KRS 235.300 merely codifies common law liability and does not create a new theory of liability. Toche’s claim is still a basic personal injury claim under common law. We therefore conclude that the trial court correctly found that the one-year statute of limitations of KRS 413.140(1)(a) applied.

 

Ferguson v. Cunningham, 556 S.W.2d 164 (Ky. App., 1977)

      Appellant contends that KRS 413.140 and KRS 413.170 do not prevent her from bringing this action when she did. In order to reach such a conclusion, appellant uses a two step approach. First, appellant states that the five (5) year limitation set out in KRS 413.140(2) should be allowed to her after the removal of this disability, KRS 413.170(1). The second step involves the definition of the term "injury" as used in KRS 413.140(2). Appellant argues that "injury" means cause of action and that KRS 413.140(1) allows her one (1) year after the discovery of her cause of action within which to commence her action. Using such a definition, appellant believes that her cause of action did not accrue until she was twenty-one (21) years old and that this was within five (5) years of the removal of her disability.

    If appellant first knew of her injury when she was fifteen (15) or sixteen (16), as appellees contend, then under KRS 413.140(1) and KRS 413.170(1) she was required to bring this cause of action before her nineteenth (19th) birthday. Appellant’s reasoning also leads this court to the conclusion that her action was barred.

        Judgment is affirmed.

 

Digiuro v. Ragland, No. 2003-CA-001555-MR (KY 6/25/2004) (KY, 2004)

 In sum, we conclude that, under the facts of this particular case and in absence of a specific limitation period prescribed by the wrongful death statute, the public policy of this Commonwealth would not be furthered by using the general statute of limitations. Instead, we find that the public policy of this Commonwealth would be furthered by allowing the family of a murder victim to wait until conviction of a defendant before filing suit. There being no statutory authority or binding case law on point, we now hold narrowly that a case involving an unsolved murder has different policy considerations than other wrongful death actions and decline to apply KRS 413.140. Accordingly, we reverse and remand this matter to the trial court for proceedings not inconsistent with this opinion.

 

Stivers v. Ellington, No. 2003-CA-001291-MR (KY 7/16/2004) (KY, 2004)

      On March 7, 2003, appellants filed a complaint against appellee in the Fayette Circuit Court. It was alleged that on March 10, 2001, while Wendy was snowboarding at Keystone Resort in Colorado, appellee was skiing downhill and collided with Wendy. Wendy claimed that appellee’s negligence was the cause of the collision. Appellants also maintained Wendy suffered permanent injuries as a result of the collision. Their cause of action was premised upon the Colorado Ski Safety Act of 1979, §§33-44-101 et. seq. Appellants specifically cited to §33-44-109(2) of the Act, which provides:

        Each skier has the duty to maintain control of his speed and course at all times when skiing and to maintain a proper lookout so as to be able to avoid other skiers and objects. However, the primary duty shall be on the person skiing downhill to avoid collision with any person or objects below him.

        Subsequently, appellee filed a motion to dismiss alleging the complaint was not filed within the one-year limitations period of Kentucky Revised Statutes (KRS) 413.140(1)(a). The circuit court ultimately agreed with appellee and dismissed appellants’ complaint. This appeal follows.

     Accordingly, we are of the opinion the applicable limitation period is one year as enunciated in KRS 413.140. As the Kentucky statute of limitations period of one year is shorter than the Colorado limitations period of two years, KRS 413.320 mandates that the Kentucky statute of limitations applies. We, thus, conclude appellants were time barred from filing their complaint in the Fayette Circuit Court.

 

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KRS 413.150 Actions by the Commonwealth.

The limitations prescribed in this chapter shall apply to actions brought by or in the name of the Commonwealth the same as to actions by private persons, except where a different time is prescribed by statute.

Effective: October 1, 1942  History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2523.    

ANNOTATIONS:
 

Mann v. Kentucky Education Professional Standards Board, No. 2007-CA-001845-MR (Ky. App. 6/26/2009) (Ky. App., 2009)

   Mann claims that EPSB was barred from revoking Mann’s license by the statute of limitations expiration. Mann argues that KRS 413.150 places time limitations on actions of the Commonwealth of Kentucky and its agencies. However, KRS 413.150 only limits the actions of the Commonwealth and its agencies with respect to the actions discussed in KRS 413. EPSB investigated Mann and subsequently revoked Mann’s certificate pursuant to KRS 161.120, which is outside of KRS 413 and contains no statute of limitations.

        Mann failed to provide a viable avenue for relief from EPSB’s decision. We find no evidence that EPSB abused its discretion by revoking Mann’s teaching certificate for five years.

        Accordingly, we affirm the Franklin Circuit Court order.

 

Meade v. Sturgill, 467 S.W.2d 363 (Ky., 1971)

     *****it may well be that title against the Commonwealth can be acquired by adverse possession. See Whitley County Land Company v. Powers’ Heirs, 146 Ky. 801, 144 S.W. 2, at page 5, in which it is stated that Section 2523 of the Kentucky Statutes (now KRS 413.150) affects the Commonwealth in the same manner as comparable statutes of limitation affect individuals. In discussing the statute (KRS 413.150) and the fact that some earlier opinions of this court had overlooked it, it was pointed out in Whitley County Land Company:

 ‘And this statute, in precisely the same language, has been in force since 1852, and is now section 2523 of the Kentucky Statutes. So that, since 1852, the limitation ran against the commonwealth in precisely the same manner as it would run against an individual; and, if the statute would defeat the claim of an individual, so it would defeat a claim asserted by the commonwealth.’ Id. 144 S.W. 5.

      It would appear, therefore, that the major premise of appellant’s reasoning is invalid, since it seems clear that adverse possession may be the basis of acquiring title even against the Commonwealth in appropriate circumstances.

        The judgment is affirmed.

 

Commonwealth v. EPI Corporation, No. 2005-CA-000274-MR (KY 4/14/2006) (KY, 2006)

    This matter is an appeal from the Anderson Circuit Court of its granting of partial summary judgment to Appellee, EPI Corporation (EPI), per order entered December 3, 2004. The Appellant, Cabinet for Health and Family Services (Cabinet), had previously been awarded a judgment by the Administrative Hearings Branch of the Cabinet from which EPI appealed to the Anderson Circuit Court.

        The primary issue in this current appeal is recoupment by the Cabinet for alleged overpayments of Medicaid benefits to EPI’s long-term care facilities. There is a long history of disagreement between the parties spanning nearly three decades. However, we direct our attention only to the cost years that are the subject of this appeal before us, i.e. 1988 through 1996.

       ****this limitation applies to actions brought by or in the name of the Commonwealth the same as to actions by private persons, except where a different time is prescribed by statute. KRS 413.150.  An 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.

     Based on the foregoing, we affirm the portion of the Anderson Circuit Court’s judgment that the Cabinet’s recoupment of Medicaid overpayments for cost years 1988 through 1995 were time-barred and the judgment of the Administrative Hearing Branch that recoupment for cost year 1996 was not time-barred, but for different reasons. We reverse the portion of the Anderson Circuit Court’s judgment that 1996 was time-barred and the judgment of the Administrative Hearing Branch that cost years 1988 through 1995 were not time-barred. We remand to the Administrative Hearing Branch to enter a judgment consistent with this opinion.

 

Metts v. City of Frankfort, 665 S.W.2d 318 (Ky. App., 1984)

      Appellants appeal the dismissal of their counterclaim seeking to set-off money appropriated to the City of Frankfort by the Legislature against unpaid bills incurred by the City for the relocation of its sewer lines in connection with three highway improvements. This appeal relies upon construction of K.R.S. 44.030, which reads as follows:

    No money shall be paid to any person on a claim against the state in his own right, or as an assignee of another, when he or his assignor is indebted to the state. The claim, to the extent it is allowed, shall be credited to the account of the person so indebted, and if there is any balance due him after settling the whole demand of the state such balance shall be paid to him.

An action upon a liability created by statute, when no other time is fixed by the statute creating the liability.

        K.R.S. 413.150 makes this limitation applicable to the Commonwealth.

   We believe it to be against public policy for K.R.S. 44.030 to be used against such legislative appropriations which benefit the residents of Frankfort, and indirectly benefits the residents of the Commonwealth as a whole.

        As such, the judgment of the circuit court is affirmed.

        All concur.

 

Department of Welfare v. Fox, 240 S.W.2d 65 (Ky., 1951)

Actions by the Commonwealth are made subject to this statute in KRS 413.150, which provides: ‘The limitations prescribed in this chapter shall apply to actions brought by or in the name of the Commonwealth the same as to actions by private persons, except where a different time is prescribed by statute.’

 

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KRS 413.160 Actions not provided for by statute — Ten year limitation.

An action for relief, not provided for by statute, can only be commenced within ten (10) years after the cause of action accrued.

Effective: October 1, 1942  History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2522.   

 
ANNOTATIONS:
 

Johnson v. University Medical Center, Inc., No. 2007-CA-002094-MR (Ky. App. 8/8/2008) (Ky. App., 2008)

Under KRS 413.140(e), any action "against a physician, surgeon, dentist, or hospital licensed pursuant to KRS Chapter 216, for negligence or malpractice" or "for an injury to the person of the plaintiff" (KRS 413.140(a)) shall be commenced within one year after the cause of action accrued. However, KRS 413.180 reads in relevant part:

        (1) If a person entitled to bring any action mentioned in KRS 413.090 to 413.160 dies before the expiration of the time limited for its commencement and the cause of action survives, the action may be brought by his personal representative after the expiration of that time, if commenced within one (1) year after the qualification of the representative.

        (2) If a person dies before the time at which the right to bring any action mentioned in KRS 413.090 to 413.160 would have accrued to him if he had continued alive, and there is an interval of more than one (1) year between his death and the qualification of his personal representative, that representative, for purposes of this chapter, shall be deemed to have qualified on the last day of the one-year period.

        The statute limits its scope to actions "mentioned" in KRS 413.090 to 413.160. Clearly, KRS 413.140, covering personal injury claims, is explicitly included in the listed statutes. Gafford was injured on January 2, 2006; she died on May 18, 2006; Johnson was appointed personal representative on February 22, 2007; and Johnson filed this claim on July 11, 2007. Thus, we agree with Johnson that, pursuant to the plain meaning of KRS 413.180, the statute of limitations did not run before she filed this claim.

 

Wood v. Wingfield, 816 S.W.2d 899 (Ky., 1991)

     The personal property presents different issues. It does not vest in the descendants as a matter of law. Accordingly, any heir claiming an interest in the personal property must take timely action following the death of the decedent to enforce his or her claims to the personal property. In surveying the alternatives, we have determined that the ten year period of KRS 413.160 is the most appropriate limitations period. Wood’s claim for relief is one "not provided for by statute." Indeed, the laws of descent and distribution in this Commonwealth make no explicit provision for the manner in which one claiming to be an heir is to enforce that right.

      Hence, we conclude that any heir claiming an interest in the personal property of a decedent must assert a claim to enforce those rights within ten years following the death of the decedent, KRS 413.160.

 

 Norton Coal Corporation v. Austin, 508 S.W.2d 584 (Ky., 1974)

            On June 11, 1968, Norton Coal Corporation brought the instant action against various officers, representatives and members of the United Mine Workers and its District No. 23, seeking to recover damages for disruption of business resulting in the loss of contracts for the mining and sale of coal, alleged to have been caused by wrongful acts of the defendants committed on June 12, 1958. The defendants pleaded the five-year statute of limitations, KRS 413.120, and moved for summary judgment which was granted. The plaintiff has appealed from that judgment contending that the ten-year statute, KRS 413.160, applies, rather than the five-year statute.

        The ten-year statute, KRS 413.160, is in the form of a catch-all provision, as follows:

‘An action for relief, not provided for by statute, can only be commenced within ten (10) years after the cause of action accrued.’

         It is true that the Federal District Court for the Western District of Kentucky, in a similar factual situation, held that the 10-year statute applied rather than the five-year statute. See Riverside v. United Mine Workers of America, 6th Cir., 410 F.2d 267.     However, in that case, the argument for application of the five-year statute was addressed only to subsection (2) of KRS 413.120, which covers actions ‘upon a liability created by statute,’ and no mention was made of subsection (7). The Federal District Court correctly held that subsection (2) did not apply, and from that reasoned that the catch-all ten-year statute applied. We do not accept that decision as authority for the nonapplication of subsection (7) of KRS 413.120.

        The judgment is affirmed.

 

Hall v. Arnett by Greene, 709 S.W.2d 850 (Ky. App., 1986)

     Appellant next claims the action was barred by the ten-year statute of limitations provided for in KRS 413.160 since Arnett’s will was lodged in the county clerk’s office in October, 1972, and this action was commenced in May, 1983. This argument too must fail for KRS 413.170(1) removes infants and those of unsound mind from the operation of the statute of limitations until the disability is no longer sustained. Appellant can hardly contest appellee’s incompetency for in the second numerical paragraph of her answer she admits Juanita’s disability. In addition, we recall that J.K. left Bertha a life estate in all his realty and it was not until her death, August 20, 1982, that the bequests took effect and it was shortly thereafter (about a month) that Woodrow Arnett, brother of appellee, learned that Wanda was claiming the property. This litigation was filed on May 27, 1983. We conclude KRS 413.160 has no application here.

 

Watkins v. Oldham, 731 S.W.2d 829 (Ky. App., 1987)

      The appellants first contend that the appellee’s action should be barred by either the five-year statute of limitations of KRS 413.120(2) or the ten-year statute of limitations in KRS 413.160.

        An action based upon a liability created by statute must be brought within five years from the time the cause of action accrued. KRS 413.120(2). The instant action was not filed until November of 1985, nearly thirteen years after appellee began his employment in Graves County. The appellants argue that because the appellee relies on various statutory provisions, such as KRS 61.373 and KRS 161.507 to establish his claim, KRS 413.120(2) bars the action against them. KRS 413.160 provides for a ten-year statute of limitations for actions not based on a statute. The appellants maintain that, in the alternative, the appellee’s claim should be barred by that statute.

     In this case, the appellants appeal from a judgment of the Graves Circuit Court which required the appellants to make various increments in the appellee’s salary and retirement benefit credit due to his military service.

        There is no dispute that the appellee was employed as a teacher in Kentucky when he was inducted into military service. The clear import of the cited statutes and regulations is that a teacher is to be given credit for military service if inducted while employed in Kentucky. If we accepted the appellants’ contentions, we would be denying the appellee the rights to which he is entitled by statute and lawful regulation. We have no authority to take such action.

        The judgment is affirmed.

 

 Com., Dept. of Highways v. Ratliff, 392 S.W.2d 913 (Ky., 1965)

        The theory on which the state bases this appeal is that subsection (4) of the statute applies only to a technical trespass and not to a negligent wrong. Otherwise, it says, there would be no legislative purpose in subsection (6) of KRS 413.120, which applies the same limitation to an action for ‘taking, detaining or injuring personal property, including an action for specific recovery.’ If this position is correct, the period of limitation on an action for negligent damages to real estate would be ten years, under KRS 413.160, the catch-all statute.

        To make a long story short, we do not agree. We are not disposed to haggle over whether one who in using a public highway carelessly but unintentionally drives a vehicle onto a bridge railing commits a common law trespass against the state.

 

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 KRS 413.170 Limitations of actions in KRS 413.090 to 413.160 do not run until removal of disability or death.

(1) If a person entitled to bring any action mentioned in KRS 413.090 to 413.160, except for a penalty or forfeiture, was, at the time the cause of action accrued, an infant or of unsound mind, the action may be brought within the same number of years after the removal of the disability or death of the person, whichever happens first, allowed to a person without the disability to bring the action after the right accrued.

(2) The right of action upon the official bond of a guardian, personal representative, curator, of the sheriff, or the officer acting as personal representative, or of any other person receiving and holding money to be distributed to a ward, distributee or devisee, under the order of court or by authority of law, of a ward, distributee, devisee or other person entitled, who was an infant when the bond was executed, shall not be deemed to have accrued, unless otherwise expressed in the bond, before the plaintiff attained the age of twenty-one (21) years. Where there are several wards, or several distributees or devisees or other beneficiaries secured by the same bond, who, or some of whom, were infants when the bond was given, the right of action of each one (1) of such infants shall not be deemed to have accrued before he attained the age of twenty-one (21) years.

Effective: October 1, 1942   History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. secs. 2521, 2525. 

ANNOTATIONS:
 

Anderson v. Pete (Ky. App., 2011) – October 7, 2011 2010-CA-000472

Thus, on remand, even if Pete is found not to be in privity with Michael and Malik because discovery reveals that the parties contracted for him to represent Elizabeth solely and not the children, he will still have owed duties to Michael and Malik as intended beneficiaries of the wrongful death action. Thus, the result is inescapable that Pete owed a duty to Michael and Malik – whether as attorney to client or as attorney to intended beneficiary.

Finally, as to the issue of the statute of limitations, so as to avoid repetition on remand, we note that all applicable statutes would have been tolled during the period of Michael and Malik’s infancy. KRS 413.170.

In consideration of the foregoing, the summary judgment of the Jefferson Circuit Court is hereby reversed and remanded for further proceedings consistent with this opinion

 
Hammers v. Plunk (Ky. App., 2011)  – October 21, 2011 – 2010-CA-000279

Wrongful death claims are generally covered under the one-year period of limitations set forth in KRS 413.180(1) and personal injury claims are generally covered under the one-year limitations period set forth in KRS 413.140(1)(a). However, in a case where the MVRA is applicable, a longer two-year period of limitations will apply. Worldwide Equipment, Inc. v. Mullins, 11 S.W.3d 50, 59 (Ky. App. 1999). Indeed,[o]ur rules of statutory construction are that a special statute preempts a general statute, that a later statute is given effect over an earlier statute, and that because statutes of limitation are in derogation of a presumptively valid claim, a longer period of limitations should prevail where two statutes are arguably applicable. Id., quoting Troxell v. Trammell, 730 S.W.2d 525, 528 (Ky. 1987). The claims in No. 2010-CA-000279-MR arise out of an automobile accident which is covered under the MVRA. Therefore the claims raised by the Estate for wrongful death and by the minor children for personal injury are covered under the two-year limitations period set forth in KRS 304.39-230(6). This two-year limitations period began to run upon the date of the last basic or added reparation payment as this payment occurred subsequent to the decedent’s injury and death in the present case. Id.

However, the children’s loss of consortium claims are not subject to the two-year limitations period set forth in KRS 304.39-230(6) because "[l]oss of consortium is not a recoverable injury within the purview of the MVRA." Floyd v. Gray, 657 S.W.2d 936, 938 (Ky. 1983). Instead, loss of consortium claims are subject to the one-year statute of limitations under KRS 413.140(1)(a). At first glance, it would appear that these claims are now time-barred. However, the loss of consortium claims were raised by the children when they were still minors. Thus, their claims are not time-barred because the statute has been tolled due to their infancy. KRS 413.170. Likewise, the personal injury claims brought by the children would also have been tolled. Id.

 

Thornsberry v. Kentucky Power Company, No. 2007-CA-002167-MR (Ky. App. 8/28/2009) (Ky. App., 2009)

   In cases of loss of parental consortium, there is also the applicability of KRS 413.170(1). As set forth above, while adult children may not bring a loss of consortium action under the laws of this Commonwealth, minor children may bring the action after they reach adulthood under KRS 413.170(1). As a result, years pass before claims are brought. As in Rigdon, 465 S.W.2d 921, reliance upon the tort law at the time the tort occurred may well lead to meritless claims succeeding. Consequently, we believe the Floyd Circuit Court erred in denying Kentucky Power’s motion to dismiss the action. Therefore, this matter is reversed and remanded with directions to the Floyd Circuit Court to dismiss the action. As a result of this decision, the merits of Thornsberry’s arguments are moot.

        LAMBERT, SENIOR JUDGE, CONCURS.

        THOMPSON, JUDGE, CONCURS IN RESULT ONLY AND FILES SEPARATE OPINION.

 

Jackson v. State Auto. Mut. Ins. Co., 837 S.W.2d 496 (Ky., 1992)

William Jackson was five years of age at the time his father died in an automobile accident that occurred March 2, 1981. One year, five months and eleven days later (August 13, 1982), a survivor’s claim was filed on the infant’s behalf seeking benefits under the No-Fault Act, KRS Chapter 304. As the father was a passenger in an uninsured vehicle at the time of the fatal wreck, the claim for benefits was filed with the Kentucky Assigned Claims Bureau which, in turn, assigned it to appellee. The claim was denied upon the reasoning that Jackson had failed to file within the necessary time limit.

  Kentucky has a saving statute, KRS 413.170(1), and it provides:

If a person entitled to bring any action mentioned in KRS 413.090 to 413.160, except for a penalty or forfeiture, was, at the time the cause of action accrued, an infant or of unsound mind, the action may be brought within the same number of years after the removal of the disability or death of the person, whichever happens first, allowed to a person without the disability to bring the action after the right accrued.

        Further, in Fann, supra, at p. 778, it was stated:

Heretofore our statutes of limitation have been extended to permit one who is a minor when a right of action accrues in his behalf to bring suit within the same period of time after he reaches his majority…. (KRS 413.170 ).

 

Ferguson v. Cunningham, 556 S.W.2d 164 (Ky. App., 1977)

  Appellant contends that KRS 413.140 and KRS 413.170 do not prevent her from bringing this action when she did. In order to reach such a conclusion, appellant uses a two step approach. First, appellant states that the five (5) year limitation set out in KRS 413.140(2) should be allowed to her after the removal of this disability, KRS 413.170(1). The second step involves the definition of the term "injury" as used in KRS 413.140(2). Appellant argues that "injury" means cause of action and that KRS 413.140(1) allows her one (1) year after the discovery of her cause of action within which to commence her action. Using such a definition, appellant believes that her cause of action did not accrue until she was twenty-one (21) years old and that this was within five (5) years of the removal of her disability.

      If appellant first knew of her injury when she was fifteen (15) or sixteen (16), as appellees contend, then under KRS 413.140(1) and KRS 413.170(1) she was required to bring this cause of action before her nineteenth (19th) birthday. Appellant’s reasoning also leads this court to the conclusion that her action was barred. In order for KRS 413.170(1) to apply, appellant’s cause of action must accrue during her infancy. Appellant, however, argues that her cause of action did not accrue until she was twenty-one (21) years old. Accepting this as true, KRS 413.170(1) did not apply to appellant. Her cause of action, therefore, was covered by KRS 413.140(1) and barred by that statute since it was commenced more than five (5) years after the negligent act.

 

Lemmons v. Ransom, 670 S.W.2d 478 (Ky., 1984)

The Court correctly recognized the problem of limitations as to minors and people under disability and interpreted the act accordingly stating, "This provision remains subject to KRS 413.170(1), which extends the limitation period for infants and persons of unsound mind."

It is the holding of this Court that an infant or a person under disability who has a cause of action arising from injuries received in an automobile accident has two years after the attainment of majority or release from disability in which to bring a tort liability action.

        Consequently James C. Ransom’s claim for his common-law remedy was timely filed. The decision of the Court of Appeals is affirmed and this case is remanded to the circuit court for trial.

 

Floyd v. Roman Catholic Diocese of Owensboro, No. 2007-CA-002011-MR (Ky. App. 6/27/2008) (Ky. App., 2008)

     On September 8, 2006, Floyd filed the underlying action against appellees, alleging breach of fiduciary duty, assault and battery, negligence, gross negligence, and intentional infliction of emotional distress. On July 30, 2007, appellees filed a motion for summary judgment alleging the claims were time-barred by the provisions of KRS 413.140(1)(a) and this court’s holding Rigazio v. Archdiocese of Louisville, 853 S.W.2d 295 (Ky.App. 1993). The trial court granted the motion on September 6, 2007. This appeal followed.

     KRS 413.140(1) requires an action such as Floyd’s to be "commenced within one (1) year after the cause of action accrued[.]" However, certain disabilities may toll the running of the time for filing the action, including infancy and/or unsound mind. See KRS 413.170(1).

      Here, Floyd alleges her repressed memory of the abuse should effectively toll the one-year statute of limitations on her action. However, as in Rigazio, the mere claim that Floyd repressed memories is not synonymous with being of unsound mind for purposes of KRS 413.170(1). Further, there is no evidence to support a contention that Floyd’s repression rendered her incapable of managing her own affairs, as described in Gaylor. Floyd is not entitled to relief on this ground.

 

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KRS 413.180 Action by or against personal representative under KRS 413.090 to 413.160.

(1) If a person entitled to bring any action mentioned in KRS 413.090 to 413.160 dies before the expiration of the time limited for its commencement and the cause of action survives, the action may be brought by his personal representative after the expiration of that time, if commenced within one (1) year after the qualification of the representative.

(2) If a person dies before the time at which the right to bring any action mentioned in KRS 413.090 to 413.160 would have accrued to him if he had continued alive, and there is an interval of more than one (1) year between his death and the qualification of his personal representative, that representative, for purposes of this chapter, shall be deemed to have qualified on the last day of the one-year period.

Effective: July 15, 1988  History: Amended 1988 Ky. Acts ch. 90, sec. 27, effective July 15, 1988. — Amended 1974 Ky. Acts ch. 299, sec. 4. — Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. secs. 2526, 2527, 2528.

 
ANNOTATIONS:
 

Potter v. Boland (Ky. App., 2012)  NO. 2011-CA-001336-MR  December 7, 2012

The question presented in Conner was whether KRS 413.180, providing time limitations for a personal representative of a deceased to file certain actions, applies to wrongful death claims. Ultimately, based on KRS 413.180, the Court held that a personal representative has two years from the date of death to seek appointment and commence an action for wrongful death. Id. at 654. In doing so, it overruled earlier cases to the contrary and reasoned:

The purpose of KRS 413.180 is to allow time for the appointment of a personal representative and then to give that personal representative time to evaluate claims and determine whether to pursue those claims. We believe wrongful death claims must come within the purview of the statute because to rule otherwise could continue existing confusion over varying time limitations. Personal injury and wrongful death claims may be prosecuted by the personal representative in one action as was done in this case. KRS 411.133. It is reasonable to conclude the General Assembly intended for the personal representative to have the same amount of time to prosecute all claims resulting from injury to the decedent including injuries resulting in death.

Id. The Potters urge this Court to extend the same reasoning to loss of consortium claims.

We agree with the Potters’ observation that a loss of consortium claim is often discovered simultaneously with the wrongful death claim and not until after the child’s personal representative is appointed and pertinent records obtained. If more than one year has elapsed, but less than two years from the personal representative’s appointment, the loss of consortium claim is barred.

Logic and clarity should not be strangers to the law. However, we have no authority to deviate from the established law. The only limitation period set forth by the General Assembly for loss of consortium is contained in KRS 413.140. KRS 413.180 cannot be extended by judicial fiat. Because this issue was definitively resolved by the Kentucky Supreme Court in Gaylor, we are bound by its holding and the current statutory law.

 

[U] Allen v. Extendicare Homes, Inc. (Ky. App., 2012) 2012-CA-000050-MR December 14, 2012

Appellees filed an answer and a Kentucky Rules of Civil Procedure (CR) 12.02(f) motion to dismiss for failure to state a claim upon which relief could be granted. In the motion to dismiss, appellees argued that appellant’s claims were time-barred by operation of either the one-year statute of limitation for personal injury actions (KRS 413.140(1)(a)) or a two-year limitation period for actions by personal representatives and provided by KRS 413.180. Conversely, appellant argued that her claims were based upon statutorily created liability; thus, the applicable statute of limitations was five years as set forth in KRS 413.120.

The parties’ adamantly disagree upon the applicable statute of limitations. Appellant believes KRS 413.120(2) is applicable; whereas, appellees believe that either KRS 413.140(1)(a) or KRS 413.180 is applicable. …

Likewise, in this case, we do not believe that KRS 216.515 creates any new statutory theory of liability; rather, we are of the opinion that KRS 216.515 merely sets forth sundry standards of care created by legislative fiat. See Stivers v. Ellington, 140 S.W.3d 599 (Ky. App. 2004). Essentially, appellant’s claims are based upon appellees’ negligence with "the standard of care . . . legislatively declared by statute." Id.at 601. Under either the one-year limitation period as set forth in KRS 413.140(1)(a) or under KRS 413.180, we conclude that appellant’s claims were clearly time-barred.

 

[U] Duke v. Kassinger (Ky. App., 2013) 2012-CA-000986-MR  June 28, 2013

Kassinger filed a motion to dismiss the action, arguing that it was barred by the statute of limitations found at Kentucky Revised Statutes (KRS) 413.180(1), which governs actions brought by personal representatives. It states:  

 
 

Hammers v. Plunk, 374 S.W.3d 324 (Ky. App., 2012) September 12, 2012

   The trial court agreed that the action was not timely filed and entered an order dismissing Duke’s claims. This appeal by Duke followed.

"A specific statute of limitation preempts a general statute of limitation where there is a conflict." Boyd v. C & H Transp., 902 S.W.2d 823, 824 (Ky. 1995). KRS 413.180 applies specifically to actions brought by personal representatives and therefore applies directly to Duke’s claims as the administrator and executor of his parents’ estates. Duke’s reliance on Wood v. Wingfield, 816 S.W.2d 899 (Ky. 1991), is misplaced. In that case, the illegitimate child of the intestate decedent came forward eight years after his death, requesting a share of his estate. The court held that the "catch all" ten-year limitation period of KRS 413.160 applied to the claims of omitted heirs for personalty. 816 S.W.2d at 904. By contrast, there is no omitted or unknown heir in this case seeking a share of the decedents’ estates. 

 

Ragland v. Estate of DiGiuro, 352 S.W.3d 908 (Ky. App., 2011) – Oct. 22, 2010. – Rehearing Denied Jan. 19, 2011. – Discretionary Review Denied by Supreme Court Dec. 14, 2011.

The situation in Gaither is distinguishable from the issue and facts in this case and does not signify a change in the law with regard to this case. Gaither does nothing more than signify a change in case law which had previously held that KRS 413.180 did not apply to extend the one-year statute of limitations in wrongful death actions before the Board of Claims, a situation that is not applicable here. The Gaither Court merely recognized and applied the reasoning of the Supreme Court in Conner, which held that KRS 413.180 applied to wrongful death actions to allow personal representatives one year from the date of qualification in which to file an action. The Conner decision was rendered well before the appellate decisions rendered in this case. In fact, in the first appeal, the Court of Appeals discussed at length the Conner holding relied upon in the Gaither opinion and its applicability to the particular facts of this case before rendering its decision based upon public policy grounds.

 
 
Hammers v. Plunk (Ky. App., 2011)  – October 21, 2011 – 2010-CA-000279

Wrongful death claims are generally covered under the one-year period of limitations set forth in KRS 413.180(1) and personal injury claims are generally covered under the one-year limitations period set forth in KRS 413.140(1)(a). However, in a case where the MVRA is applicable, a longer two-year period of limitations will apply. Worldwide Equipment, Inc. v. Mullins, 11 S.W.3d 50, 59 (Ky. App. 1999). Indeed,[o]ur rules of statutory construction are that a special statute preempts a general statute, that a later statute is given effect over an earlier statute, and that because statutes of limitation are in derogation of a presumptively valid claim, a longer period of limitations should prevail where two statutes are arguably applicable. Id., quoting Troxell v. Trammell, 730 S.W.2d 525, 528 (Ky. 1987). The claims in No. 2010-CA-000279-MR arise out of an automobile accident which is covered under the MVRA. Therefore the claims raised by the Estate for wrongful death and by the minor children for personal injury are covered under the two-year limitations period set forth in KRS 304.39-230(6). This two-year limitations period began to run upon the date of the last basic or added reparation payment as this payment occurred subsequent to the decedent’s injury and death in the present case. Id.

However, the children’s loss of consortium claims are not subject to the two-year limitations period set forth in KRS 304.39-230(6) because "[l]oss of consortium is not a recoverable injury within the purview of the MVRA." Floyd v. Gray, 657 S.W.2d 936, 938 (Ky. 1983). Instead, loss of consortium claims are subject to the one-year statute of limitations under KRS 413.140(1)(a). At first glance, it would appear that these claims are now time-barred. However, the loss of consortium claims were raised by the children when they were still minors. Thus, their claims are not time-barred because the statute has been tolled due to their infancy. KRS 413.170. Likewise, the personal injury claims brought by the children would also have been tolled. Id.

 

Johnson v. University Medical Center, Inc., No. 2007-CA-002094-MR (Ky. App. 8/8/2008) (Ky. App., 2008)

     In the current case, Johnson is asserting a personal injury claim on Gafford’s behalf, not a wrongful death claim. But under the rule set out in Connor, KRS 413.180 applies to both personal injury and wrongful death claims. The Supreme Court in Reda Pump Co. v. Finck, 713 S.W.2d 818, 819-20 (Ky. 1986), noted, "We have long adhered to the rule in this jurisdiction that statutes will be construed according to the plain meaning of the words contained in the statute." It is abundantly clear in KRS 413.180 that the legislature intended that a personal representative be allowed to commence a personal injury action within one year after the qualification of the representative. Here, Johnson qualified as the decedent’s personal representative on February 22, 2007, and filed this action on July 11, 2007, well within the statutory limitations. Therefore, the trial court clearly erred in finding that the action was untimely filed.

        Accordingly, the order of the Jefferson Circuit Court is reversed.

 

Howard v. Masonic Homes of Kentucky, Inc., No. 2007-CA-001838-MR (Ky. App. 2/20/2009) (Ky. App., 2009)

      First, we will address Kentucky law as it relates to the statute of limitations for wrongful death actions. According to Kentucky Revised Statutes(KRS) 411.130(1), a wrongful death action "shall be prosecuted by the personal representative of the deceased[,]" but KRS 411.130 does not specifically establish a statute of limitations period for wrongful death. Instead, Kentucky case law has determined that KRS 413.180(1) mandates that such a wrongful death action be "commenced within one (1) year after the qualification of the representative." See Conner v. George W. Whitesides Co., 834 S.W.2d 652 (Ky. 1992). In Conner the Kentucky Supreme Court held that KRS 413.180 applied to wrongful death suits to save an action filed thirteen months after death when the appointment of a representative was accomplished on the same date suit was filed.

        This action was commenced by Della and Anna in their individual capacities, and therefore, they did not have standing to file this lawsuit under KRS 411.130. Anna was never qualified as Ernest’s personal representative, and the statute of limitations expired before Della filed the action in her capacity as Ernest’s personal representative.

        Applying the law to the present case, we observe that Della filed the wrongful death action within the one-year statute of limitations period. But Della made no attempt to amend the complaint, even after qualifying as Ernest’s personal representative, to reflect that she was suing in her capacity as personal representative. Given the parameters of the law, we do not believe that statutory or case law authorizes the dates to be manipulated here to the extent Della suggests to maintain the action. As the trial court noted in its June 28, 2007, order, no one yet had made any motion to amend the complaint so that the action could be initiated in Della’s capacity as personal representative. Furthermore, while initially the parties were acting pro se, on May 23, 2007, an attorney had filed an entry of appearance for Della. Still, even though Della was then represented by counsel, it was also well over one year from both Ernest’s date of death (January 23, 2006), and also Della’s appointment as personal representative (March 13, 2006).

     The second factor negating Della’s reasoning to allow an amendment of the pleadings is the standard of review that we must properly follow. We are mindful of the proposition that the trial court’s discretion in refusing amendments will not be disturbed unless it is clearly erroneous. See Lawrence v. Marks, 355 S.W.2d 162 (Ky. 1961). Although Della’s counsel made a motion to amend the complaint on July 5, 2007, it was after the court issued its June 28, 2007, order dismissing the complaint. The court, following this motion, heard from both parties. Then it entered its August 10, 2007, order, which overruled Della’s motion and sustained Masonic Homes’ motion to dismiss again. Apparently the court was persuaded by Della’s failure to amend the complaint prior to the June 28, 2007, decision. Notwithstanding the court’s lack of explanation for the August order, no evidence has been provided demonstrating that the court abused its discretion in any way. The decision of the Shelby Circuit Court is affirmed.

 

Conner v. George W. Whitesides Co., 834 S.W.2d 652 (Ky., 1992)

 Since KRS 413.140(1) is within the statutes listed in KRS 413.180, then the question becomes whether wrongful death claims naturally come within the purview of the latter statute. The former Court of Appeals addressed this question and concluded that the predecessors to KRS 413.180 did not apply to wrongful death claims. Faulkner’s Adm’r. v. Louisville & N.R. Co., 184 Ky. 533, 212 S.W. 130 (1919). See also, Totten v. Loventhal, Ky., 373 S.W.2d 421 (1963); Massie v. Persson, Ky.App., 729 S.W.2d 448 (1987). In the Totten and Massie cases, the respective courts held that KRS 413.180 does not apply to wrongful death claims, and in both cases wrongful death claims were dismissed where it was shown that the claims had not been filed within the statutory limit of one year. The Woodford Circuit Court and the Court of Appeals agreed with these authorities. Statutory changes to KRS 413.180 enacted in 1988 suggest that the exclusionary view taken in the above cases is inappropriate. The General Assembly has reenacted the inclusive reference to KRS 413.140 which the courts have stated expresses the wrongful death limitation but restricted the extension in KRS 413.180(2) to one year so that the effect of including the wrongful death limitation in KRS 413.140(1) within the reach of KRS 413.180(2) is a reasonable extension to two years from date of death.

    We have determined that Gaylor states the correct rule. The purpose of KRS 413.180 is to allow time for the appointment of a personal representative and then to give that personal representative time to evaluate claims and determine whether to pursue those claims. We believe wrongful death claims must come within the purview of the statute because to rule otherwise could continue existing confusion over varying time limitations. Personal injury and wrongful death claims may be prosecuted by the personal representative in one action as was done in this case. KRS 411.133. It is reasonable to conclude the General Assembly intended for the personal representative to have the same amount of time to prosecute all claims resulting from injury to the decedent including injuries resulting in death.

 

 Gaither v. Com., 161 S.W.3d 345 (KY, 2005)

       KRS 44.110(3) allows for a personal injury action to be brought within one year from the time it is discovered, or reasonably should have been discovered by the claimant, but in no event longer than two years from the date on which it actually occurred. This can easily be applied to wrongful death actions in that KRS 413.180 allows an action which would otherwise be barred by limitations to be brought within one year of qualification of the personal representative; however, in the event more than one year passes between the death and qualification of a representative, the representative is deemed to have qualified on the last day of the one-year period.14 Therefore, KRS 413.180 establishes that no covered action may be brought more than two years from the date of the decedent’s death, which precisely mirrors the two-year maximum contemplated in KRS 44.110(3). Because the statutes are harmonious, we, like the dissent in Gray, see no reason to create different classes of plaintiffs/personal representatives in wrongful death cases based on whether the death is alleged to have occurred as the result of the Commonwealth’s negligence or that of another party.

        Accordingly, we overrule our decision in Gray and hold that wrongful death actions against the Commonwealth may be pursued before the Board of Claims by a personal representative up to one year from the date of the qualification of the personal representative, with a maximum limitation of two years from the date of the death. Since Virginia Gaither’s claim before the Board of Claims was timely under this standard, we reverse and remand for further proceedings.

 

Johnson v. University Medical Center, Inc., No. 2007-CA-002094-MR (Ky. App. 8/8/2008) (Ky. App., 2008)

      In the current case, Johnson is asserting a personal injury claim on Gafford’s behalf, not a wrongful death claim. But under the rule set out in Connor, KRS 413.180 applies to both personal injury and wrongful death claims. The Supreme Court Reda Pump Co. v. Finck, 713 S.W.2d 818, 819-20 (Ky. 1986), noted, "We have long adhered to the rule in this jurisdiction that statutes will be construed according to the plain meaning of the words contained in the statute." It is abundantly clear in KRS 413.180 that the legislature intended that a personal representative be allowed to commence a personal injury action within one year after the qualification of the representative. Here, Johnson qualified as the decedent’s personal representative on February 22, 2007, and filed this action on July 11, 2007, well within the statutory limitations. Therefore, the trial court clearly erred in finding that the action was untimely filed. 

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KRS 413.190 Result of absence from the state or obstruction of action under KRS 413.090 to 413.160.

(1) If, at the time any cause of action mentioned in KRS 413.090 to 413.160 accrues against a resident of this state, he is absent from it, the period limited for the commencement of the action against him shall be computed from the time of his return to this state.

(2) 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. But this saving shall not prevent the limitation from operating in favor of any other person not so acting, whether he is a necessary party to the action or not.

Effective: October 1, 1942    History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. secs. 2531, 2532.

 
ANNOTATIONS:
 

Golden Oak Mining Co. v. Lucas (Ky. App., 2011) June 17, 2011 – 2008-CA-002148

Similarly, Golden Oak’s 1997 letter to the Cabinet, which the appellees claim misrepresented that "all the complaints from the [March 5, 1997] petition were] resolved," did nothing to obstruct the appellees’ discovery of their claim. Furthermore, presuming the representation to the Cabinet was false, did the appellees not know the truth? If so, how could it be said that appellees relied on the misrepresentation in good faith?

The fact is that the evidence appellees rely on to save them from the operation of the statute of limitations actually highlighted Golden Oak’s culpability. In any event, Golden Oak’s representations that it had fixed or would fix the problem is insufficient to trigger application of KRS 413.190(2). Addressing this very issue in the context of that statute, our Supreme Court said that "[m]ere statements by a defendant that it would fix the problem does not rise to the level of the statute [KRS 413.190(2)]." Davis v. All Care Medical, Inc., 986 S.W.2d 902, 906 (Ky. 1999).

Considering Emberton, the most recent case on the issue and one heavily relied upon by appellees, it is easy to see why the statute is inapplicable to the case sub judice. Golden Oak did not "actively conceal" its connection with the loss in water quality and the knowledge available to the appellees was in no way "sparse." Neither statutory estoppel under KRS 413.190(2) nor common law equitable estoppel is applicable to this case.

Our de novo review yields the conclusion that there were no genuine issues of material fact regarding when the appellees’ causes of action accrued. It could not have been later than 1997, more than five years before they brought their civil action against Golden Oak on February 7, 2003. Furthermore, the discovery rule is inapplicable to the facts of this case as are the concepts of statutory and equitable estoppel. Because the alleged nuisance or trespass committed by Golden Oak was permanent and discovered or discoverable more than five years before appellees brought their civil action against Golden Oak, those claims were also barred by the five-year statute of limitations.

For the reasons stated, the Letcher Circuit Court should have granted Golden Oak’s motion for summary judgment on limitations grounds. Therefore, we reverse

 

Metro Louisville/Jefferson County Gov’t v. Abma, 326 S.W.3d 1 (Ky. App., 2010)  – Sept. 4, 2009. – Rehearing Denied Jan. 28, 2010. – Discretionary Review Denied b Supreme Court Dec. 10, 2010

This is a companion case to Commonwealth v. Hasken, 265 S.W.3d 215 (Ky.App.2007). Both appeals stem from judicial and administrative claims filed by City of Louisville firefighters alleging miscalculation of overtime pay. Hasken, which began with the filing of a wage and hour law complaint with the Kentucky Labor Cabinet in May 2000, and ended with the denial of discretionary review by the Kentucky Supreme Court in October 2008, addressed only the statutory wage and hour law violation. In contrast, this appeal addresses only the state breach of contract claim.

Hasken had been rendered by a panel of this Court when this case was briefed, but it was pending in our Supreme Court on the City’s request for discretionary review. As a result, the proper overtime pay formula was a seminal issue in both Hasken and in the briefs filed in the case sub judice. However, when discretionary review was denied and Hasken became final, it became the law of the case that four of the five additional pay elements received by firefighters must be included in the overtime pay formula and that formula must be based on a forty-hour work week. Williamson v. Commonwealth, 767 S.W.2d 323 (Ky.1989) (law of the case doctrine prevents relitigation of issue raised and decided in prior appeal). In the wake of Hasken, there is nothing for us to decide regarding the cross-appeal and the City concedes the prime question now before us is whether the statute of limitations applicable to the breach of contract claim is five years or fifteen years.

Hasken held the circuit court correctly applied the five-year statute of limitations mentioned in KRS 413.120(2) to the wage and hour law violation because KRS Chapter 337 does not specify a separate statute of limitations for such a claim. Hasken also held there was no equitable tolling of the statute under KRS 413.190(2).

The second issue raised on appeal by the City, and now the prime issue raised in the wake of Hasken becoming final, is the appropriate statute of limitations governing the breach of contract claim. The City argues the firefighter’s claims should be limited to five years under KRS 413.120(2), the same as for the statutory violation. The firefighters disagree, maintaining they should have the benefit of the fifteen-year window provided in KRS 413.090(2) for actions on written contracts. In reviewing the record, we note that the City did not contest application of the fifteen-year statute of limitations in its response to the firefighter’s motions for partial summary judgment on the state law contract claims or in its motion to alter, amend or vacate the proposed judgment on the contract claims. Thus, whether that issue has been preserved for our review is questionable. With few exceptions, this Court does not review complaints unless they were first argued to the trial court and that court was given an opportunity to correct any error. Smith v. Commonwealth, 567 S.W.2d 304, 306 (Ky.1978). In this instance we have chosen to address the issue and we agree with the firefighters on the merits.

 

Fluke Corporation v. Lemaster, No. 2008-SC-000530-DG (Ky. 3/18/2010) (Ky., 2010)

  We accepted discretionary review in this products liability case to resolve whether the Court of Appeals properly adopted foreign authority and correctly held that equitable estoppel barred the product manufacturer’s statute of limitations defense because the manufacturer allegedly concealed product defects from government regulatory agencies. We also address whether the holding of the Court of Appeals properly expanded the discovery rule beyond the classes of cases currently recognized by Kentucky law.

        We conclude that the Court of Appeals erred by applying equitable estoppel to bar application of the statute of limitations because the product’s potential role in causing the accident that gave rise to this litigation was immediately evident from the accident itself, and the manufacturer’s alleged failure to disclose product defects to government agencies did not excuse the plaintiffs’ failure to exercise reasonable diligence to discover their cause of action and the identity of the tortfeasor within the time prescribed by the statute of limitations. We also refuse to extend application of the discovery rule to cases not involving latent injuries, latent illnesses, or professional malpractice and conclude that the Court of Appeals erred to the extent that it applied the discovery rule under the circumstances presented here. Because we conclude that the Court of Appeals improperly adopted foreign authority clearly in conflict with binding Kentucky precedent and erred in its application of the law to the facts of this case, we reverse the Court of Appeals and reinstate the trial court’s grant of summary judgment to the manufacturer.

 

Fn 9. Statutory estoppel clearly does not apply here since Fluke is not a resident of Kentucky. KRS 413.190 states:

(1) If, at the time any cause of action mentioned in KRS 413.090 to 413.160 accrues against a resident of this state, he is absent from it, the period limited for the commencement of the action against him shall be computed from the time of his return to this state.

(2) 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. But this saving shall not prevent the limitation from operating in favor of any other person not so acting, whether he is a necessary party to the action or not.

 

Emberton v. GMRI, Inc., No. 2007-SC-000443-DG (Ky. 10/29/2009) (Ky., 2009)

     This is an appeal from a Court of Appeals’ opinion reversing the Judgment of the Warren Circuit Court in favor of Appellant/ Cross-Appellee, Tim Emberton ("Emberton"), on the grounds that his personal injury action against Appellee/Cross-Appellant, GMRI Inc. ("GMRI"), was untimely filed and thus barred by the statute of limitations. For reasons that GMRI actively concealed Emberton’s probable cause of action, we hold that his suit was timely filed. Having also addressed GMRI’s cross-appeal, we reverse the decision of the Court of Appeals and reinstate the judgment of the Warren Circuit Court.

        This is a case arising from a restaurant exposing a customer to hepatitis A, causing him to contract the virus. Upon discovering the probable cause of his illness, the customer filed suit against the restaurant and one its employees, as well as against the local health department and several of its employees.1 I The customer asserted three claims against the restaurant sounding in negligence, products liability, and breach of warranty.

     This "tolling statute has been on our books for many years" and "is essentially a recognition in law of an equitable estoppel or estoppel in pais to prevent a fraudulent or inequitable resort to a plea of limitations." Adams v. Ison, 249 S. W.2d 791, 793 (Ky. 1952); see also Munday, 831 S.W.2d at 914 ("Long ago a tolling statute was enacted which provides that a resident of this State who absconds or conceals himself `or by any other indirect means obstructs the prosecution of the action’ shall not have benefit of the statute of limitation so long as the obstruction continues.") (quoting KRS 413.190(2)).

        For purposes of the statute, "though deception is involved, bad faith, evil design or an intent by the wrongdoer to deceive or mislead or defraud in the technical sense is not essential." Adams, 249 S.W.2d at 793. Rather, and in order to toll the limitations period, the concealment envisioned by KRS 413.190(2) must represent an "affirmative act" and "cannot be assumed" — i.e., it must be active, not passive. Id., accord Munday, 831 S.W.2d at 915. For this reason, we have held that the statute’s reference to "other indirect means" of obstruction of an action still requires an act or conduct that remains "affirmatively fraudulent": "The `other indirect means’ of obstruction… must consist of some act or conduct which in point of fact misleads or deceives plaintiff and obstructs or prevents him from instituting his suit while he may do so." Adams, 249 S.W.2d at 792 (citing Reuff-Griffin Decorating Co. v. Wilkes, 173 Ky. 566, 191 S.W. 443, 444 (Ky. 1917)); accord Gailor v. Alsabi, 990 S.W.2d 597, 603 (Ky. 1999). As a result, "mere silence… is insufficient" and cannot support its application. Gailor, 990 S.W.2d at 603; see also L.S. Tellier, Annotation, What constitutes concealment which will prevent running of statute of limitations, 173 A.L.R. 576 5th § 12 (2009) ("The rule is quite generally accepted, particularly in modern cases, that… an affirmative act on the part of the defendant tending toward concealment is necessary, and that passivity, such as silence on his part, is not sufficient, in order to constitute such a concealment as to toll the statute of limitations.").

        We note that the most commonly recognized exception to the affirmative act requirement applies where "a party remains silent when the duty to speak or disclose is imposed by law" upon that person. Gailor, 990 S.W.2d at 603 (citing Munday, 831 S.W.2d at 914) (emphasis added); see also Munday, 831 S.W.2d at 914 ("[W]here the law imposes a duty of disclosure, a failure of disclosure may constitute concealment under KRS 413.190(2), or at least amount to misleading or obstructive conduct."). In Munday, for example, a legal duty was imposed by statute. 831 S.W.2d at 915. In Adams, a fiduciary duty was imposed by virtue of the doctor-patient relationship. 249 S.W.2d at 793; see also Security Trust Co. v. Wilson, 307 Ky. 152, 210 S.W.2d 336, 339-40 (Ky. 1948) (fiduciary duty). And, in Secter, too, a legal duty was imposed by statute to disclose acts of "child abuse to law enforcement authorities." 966 S.W.2d at 290.

     Consequently, the limitations period began only when GMRI’s concealment was revealed or when Emberton should have discovered his cause of action by reasonable diligence. Adams, 249 S.W.2d at 793 ("The statute begins to run only when the fraud or concealment is revealed or the facts discovered or should have been discovered by the exercise of reasonable diligence by the injured" plaintiffl; see also Secter, 966 S.W.2d at 290 ("`Obstruction might also occur where a defendant conceals a plaintiffs cause of action so that it could not be discovered by the exercise of reasonable diligence."’) (quoting Rigazio, 853 S.W.2d at 297). Because the concealment was revealed to Emberton in May of 2004, the only question that remains is whether Emberton should have discovered his claim prior to that time.

 

Alexander v. Lakes, No. 2007-CA-001196-MR (Ky. App. 1/16/2009) (Ky. App., 2009)

     When interpreting KRS 413.190(2), this Court has stated that "[o]bstruction might also occur where a defendant conceals a plaintiff’s cause of action so that it could not be discovered by the exercise of ordinary diligence on the plaintiff’s part." Roman Catholic Diocese of Covington v. Secter, 966 S.W.2d 286, 290 (Ky. App. 1998)(quoting Rigazio v. Archdiocese of Louisville, 853 S.W.2d 295, 297 (Ky. App. 1993). Based on the undisputed facts of this case, we cannot conclude that obstruction occurred. The Lakes took possession and continued to reside and improve the property continuously since 1974. The deed was recorded in 1994, which is considered notice to the world. Any alleged fraud should have been discovered by ordinary diligence. Further, there is no evidence in the record that James Alexander and Beechum Lakes were anything more than business associates and friends. There is nothing to indicate that their relationship was of a confidential or fiduciary nature. The trial court did not err in dismissing the fraud claim.

    The statute of limitations for an action upon a contract not in writing is five years. KRS 413.190. The oral contract was made in 1974. Alexander does not specifically allege when the breach occurred. Assuming the breach occurred when the deed was filed, the action upon the contract is still outside the limitations period. Regardless, oral contracts for the sale of real property are unenforceable by virtue of the Statute of Frauds. KRS 371.010(6).

        Finally, Alexander argues that the trial court erred by dismissing her request for a declaration of rights with respect to the property. Although, the trial court did not explicitly make a declaration of rights, we find that the trial court made an implicit finding that Lakes’s claim of title was superior to the claim of Alexander. "It is not necessary that a declaratory judgment be in any particular form or that the phrase, `the court declares the rights of plaintiffs (or defendants) to be’, shall be used so long as the court actually passes upon or adjudges the issues raised by the pleadings." Carter v. Nance, 304. Ky. 256, 200 S.W.2d 247, 260 (1947). Alexander did not request any further or more specific findings. Reversal is unwarranted.

        For the foregoing reasons, the judgment of the Madison Circuit Court is affirmed.

 

Fayette County Board of Education v. Maner, No. 2007-CA-002243-MR (Ky. App. 5/22/2009) (Ky. App., 2009)

    Furthermore, "where the law imposes a duty of disclosure, a failure of disclosure may constitute concealment under KRS 413.190(2), or at least amount to misleading or obstructive conduct." Munday v. Mayfair Diagnostic Lab., Ky., 831 S.W.2d 912, 915 (1992). KRS 199.335, the statute in effect when these incidents occurred, imposed a legal duty on any person to report child abuse to law enforcement authorities. The Diocese failed to comply with this duty, and such failure constitutes evidence of concealment under KRS 413.190(2). In short, the trial court properly denied the Diocese’s directed verdict motion on this issue.

        Id. at 290 (emphasis added and footnotes omitted). Consequently, following the Court’s holding in Secter that where there is a statutory duty to report sexual abuse and a failure to so do, this constitutes evidence of concealment under KRS 413.190(2).

        Pursuant to Secter, there was evidence of concealment to allow tolling of the statute of limitations. There is no dispute in this case that Dr. Potts had a duty to report Carolyn’s suspicion of a sexual relationship between her minor daughter and two teachers. The Board’s own witness, Mary Browning, testified to this unequivocally. Although Dr. Potts could not recall a report from Carolyn, under a directed verdict standard, "[a]ll evidence which favors the prevailing party must be taken as true and the reviewing court is not at liberty to determine credibility or the weight which should be given to the evidence, these being functions reserved to the trier of fact. The prevailing party is entitled to all reasonable inferences which may be drawn from the evidence." Brooks, 132 S.W.3d at 798. Thus, Carolyn’s testimony that she told Dr. Potts that she believed the relationship between Lynne and Blackwell and Hubbard was of a sexual nature must be accepted as true for the purposes of a motion for a directed verdict. Thus, under Secter, Dr. Potts’ failure to report sexual abuse where he had a statutory duty to do so constitutes concealment, justifying tolling the statute of limitation.

      [m]erely because a state agency has waived its sovereign immunity for purpose of suit, it does not necessarily follow that the agency has also waived its immunity from liability for payment of interest in such suit. The fact that KRS 160.160 makes a board of education a body politic and subject to suit, does not divest the board of immunity regarding interest, absent a statutory provision. Since a state can be sued only with its consent, a statute waiving immunity must be strictly construed and cannot be read to encompass the allowance of interest unless so specified. See generally Brown v. State Highway Commission, 206 Kan. 49, 476 P.2d 233, 234 (1970); Annot., 24 ALR 2d 928 (1952). Furthermore, we do not believe that the general interest on judgment statute (KRS 360.040) applies to state agencies without an explicit declaration by the legislature or contract provisions expressly so stating.

        Based on the foregoing, we determine the trial court did not err in striking its prior order allowing post-judgment interest. 

Metro Louisville/Jefferson County Government v. Abma, No. 2007-CA-001417-MR (Ky. App. 9/4/2009) (Ky. App., 2009)

   Hasken held the circuit court correctly applied the five-year statute of limitations mentioned in KRS 413.120(2) to the wage and hour law violation because KRS Chapter 337 does not specify a separate statute of limitations for such a claim. Hasken also held there was no equitable tolling of the statute under KRS 413.190(2).

      For the foregoing reasons, we affirm the opinion and order entered by the Jefferson Circuit Court on June 16, 2006. We affirm in part, vacate in part, and remand for further proceedings consistent with this opinion, the judgment entered on September 21, 2006. Finally, we affirm the written order entered on June 17, 2007, denying the City’s motion to alter, amend or vacate the judgment entered on September 21, 2006.

 

Digiuro v. Ragland, No. 2003-CA-001555-MR (KY 6/25/2004) (KY, 2004)

BUCKINGHAM, JUDGE, DISSENTING.

        I conclude that neither the discovery rule nor KRS 413.190(2) affords the appellant any relief in the determination of whether its complaint was filed within the limitation period. Therefore, I respectfully dissent.***

        Since DiGiuro’s death occurred on July 17, 1994, and the civil action was filed on July 1, 2002, the statute of limitation set forth in KRS 413.140(1)(a) barred the complaint as untimely unless the appellant could show relief under either the discovery rule or KRS 413.190(2). The majority declines to state whether it believes the discovery rule should be extended to cases of this nature, and the majority does not address KRS 413.190(2) in any manner. Rather, the majority decides this case on public policy considerations, states that the victim’s family deserves a remedy, and declines to apply the one-year statute of limitation in KRS 413.140(1)(a) in any manner. I believe that neither the discovery rule nor KRS 413.190(2) save the complaint from being time-barred, and I believe that public policy considerations are generally best left for determinations by the legislature or by our supreme court.

 

Munday v. Mayfair Diagnostic Laboratory, 831 S.W.2d 912 (Ky., 1992)

A claim of equitable estoppel is widely utilized by parties who seek to avoid a statute of limitation defense. Long ago a tolling statute was enacted which provides that a resident of this State who absconds or conceals himself "or by any other indirect means obstructs the prosecution of the action" shall not have benefit of the statute of limitation so long as the obstruction continues. KRS 413.190(2). We have held that this tolling statute is simply a recognition in law of an equitable estoppel or estoppel in pais to prevent fraudulent or inequitable application of a statute of limitation.

 

Roman Catholic Diocese of Covington v. Secter, 966 S.W.2d 286 (KYCA, 1998)

The Diocese contends that no applicable exception applies to this rule and that Secter’s suit, brought seventeen years after the last inappropriate touching by Bierman, is thus clearly barred. Secter contends, however, that his complaint was timely filed under the discovery rule or, in the alternative, that the Diocese is estopped from relying on the statute of limitations due to fraudulent concealment by operation of KRS 413.190(2).

In the case sub judice, Secter does not allege memory loss and was aware of his injury (being sexually abused) within one year of his reaching the age of majority. Thus, his injury would not fall within the discovery rule under Rigazio, supra.

     The next issue is whether the trial court erred in allowing the jury to determine whether the statute of limitations was tolled under KRS 413.190(2) or whether the Diocese should have been granted a directed verdict on that issue.

     KRS 413.190(2) provides that  [w]hen 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 judgment of the Kenton Circuit Court is affirmed.

 

  Old Mason’s Home of Kentucky, Inc. v. Mitchell, 892 S.W.2d 304 (Ky. App., 1995)

     Having concluded that the applicable statute of limitations is that prescribed in KRS 413.245, it follows that Mason’s reliance upon KRS 413.190(2) is misplaced.    Notwithstanding the lack of applicability of KRS 413.190(2), Mason has completely failed to present even a scintilla of evidence that would justify invoking the tolling statute. Mason claims that Mitchell continued to inform it that he was investigating the cause of the problems. However, there is absolutely no evidence that Mitchell made any false representations, fraudulently concealed his alleged negligence, or made any promises in exchange for Mason’s forbearance in filing a claim. Mason’s allegations concerning Mitchell’s conduct, even if true, are legally insufficient to constitute the conduct required under KRS 413.190(2).

 

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KRS 413.220 Sureties who are discharged after seven years.

(1) A surety shall be discharged from all liability under any judgment or decree, after the lapse of seven (7) years without the issue of execution and prosecution in good faith for collection.

(2) A surety in any bond given in the course of any judicial proceeding shall be discharged from all liability on it unless suit is brought on it within seven (7) years after the cause of action accrues.

(3) A surety in any obligation or contract, other than those provided for in KRS 413.230, shall be discharged from all liability on it unless suit is brought on it within seven (7) years after the cause of action accrues.

Effective: October 1, 1942  History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. secs. 2548, 2549, 2551.   

 
ANNOTATIONS:
 

Com., Natural Resources and Environmental Protection Cabinet v. Kentucky Ins. Guar. Ass’n, 972 S.W.2d 276 (Ky. App., 1997)

The circuit court concluded that KRS 413.220(3), .250 and .270(2) must be read together as effecting an overall policy concerning limitation provisions and that the broad definition of "court" in KRS 413.270 is also applicable to KRS 413.220(3). We are unwilling to take this first very significant step of extending the reach of potentially all statutes of limitation to any body fitting within the expanded definition of "court" in KRS 413.270. However, there are other compelling grounds for concluding that although KRS 413.220(3) is not literally applicable it should and must be applied by analogy.

     Statutes of limitation in general are designed to bar stale claims arising out of transactions or occurrences which took place in the distant past. Armstrong v. Logsdon, Ky., 469 S.W.2d 342 (1971). They close the doors of the courts and are expressly intended "to be used as a blanket to smother the moribund claims" of plaintiffs and defendants.

In the final analysis perhaps the most persuasive evidence of the invalidity of the Cabinet’s attempts to limit the reach of KRS 413.220(3) to judicial proceedings is the practical application of that position.

 

Gil Ruehl Mech. v. Hartford Fire Ins. Co., 164 S.W.3d 512 (KY, 2004)

  Gil countered that KRS 413.220 represented the proper statute of limitation.2 Under KRS 413.220, an action against a surety upon a bond must be brought within seven years of filing the bond. As the mechanic’s liens were discharged upon filing the bond, Gil argued that KRS 413.220 was the applicable statute of limitations and that its action was timely filed.

        The circuit court agreed with Hartford that KRS 376.090 was the proper statute of limitations and that Gil’s action to enforce the mechanic’s lien release bond was untimely filed. By order entered June 10, 2003, the circuit court dismissed Gil’s action to enforce its claim against Hartford as surety on the release bond. This appeal follows.

    We are called upon to decide a single legal issue — whether KRS 413.220 or KRS 376.090 is the proper statute of limitations for an action to recover against the surety upon a mechanic’s lien release bond. For the reasons hereafter stated, we hold that KRS 376.090 provides the proper limitation period for an action to recover against the surety of a mechanic’s lien release bond.

 

 Chapman Drug Co., Inc. v. Green, 685 S.W.2d 204 (Ky. App., 1984)

        On August 2, 1967, Louis H. Green, appellees’ decedent, executed and delivered a promissory note to Hamilton National Bank. The note was evidence of a debt owed to the bank by Minnis Radio Center Drug, Inc. Green was president of the corporation and signed the front of the note in that capacity. He indorsed his signature on the back of the note, however, in his individual capacity. Appellant Chapman Drug Company, Inc., through its president, indorsed the back of the note immediately below Green’s signature. On November 10, 1967, appellant paid the bank the principal balance due on the note. Green died on December 22, 1978, and appellees were appointed co-executors of his estate. Appellant filed this action against appellees on June 17, 1981. It sought a judgment against Green’s estate for the amount it paid Hamilton National Bank to acquire title to the disputed note plus accrued interest. Appellees filed a motion for judgment on the pleadings on the ground that Green signed the note as an accommodation indorser, and thus, that the action against his estate was barred by the seven-year statute of limitations applicable to sureties, KRS 413.220(3). The court granted appellees’ motion and dismissed appellant’s action. This appeal followed.

    Next, appellant contends that by relying upon KRS 413.220(3), the statute of limitations applicable to sureties, the court impermissibly extended the scope of that statute by implication. This contention is without merit. At the time Article 3 of the Uniform Commercial Code was enacted in Kentucky, KRS 413.220(3) was in effect. The legislature left this statute unchanged and did not enact any new statute of limitations to govern actions arising under Article 3 of the Code. We conclude, therefore, that the legislature intended that KRS 413.220(3) would be the statute of limitations applicable to actions against persons who have acquired the status of a surety under Article 3 of the Code.        The court’s judgment is affirmed.

 

Dinsmore v. Warfield, 295 S.W.2d 566 (Ky., 1956)

     Appellant, J. S. Dinsmore, relied upon KRS 413.090(2), the 15-year statute of limitations, as a bar to recovery on the note. The other appellants did not sign the note but executed a mortgage on their property as security for its payment. They allege they signed the mortgage as sureties only and claim they are therefore discharged from all liability because suit was not brought within the time prescribed by KRS 413.220(3), the 7-year statute of limitations.

      Since the action was instituted June 16, 1954, it was begun within the 15-year period, because no action accrued on the note until the date of maturity. Gould v. Bank of Independence, 264 Ky. 511, 94 S.W.2d 991. The appellants who did not sign the note but only mortgaged their property to secure the debt were not sureties within the meaning of the 7-year statute, since the 15-year statute of limitations applies to an action to enforce the lien under discussion. See Johnson v. Nelson, etc., 15 Ky.Law Rep. 495, and Craddock v. Lee, etc., 61 S.W. 22, 22 Ky.Law Rep. 1651.

        Wherefore, the motion for an appeal is overruled and the judgment is affirmed.   

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KRS 413.230 Sureties who are discharged after five years.

A surety for an executor, administrator, guardian or curator, or for a sheriff to whom a decedent’s estate has been transferred, shall be discharged from all liability to a distributee, devisee or ward when five (5) years have elapsed without suit after the cause of action accrued, and after the devisee, distributee or ward attained full age. But the failure of one to commence action in time shall not affect the right of another.

Effective: July 15, 1980  History: Amended 1980 Ky. Acts ch. 259, sec. 28, effective July 15, 1980. — Amended 1974 Ky. Acts ch. 299, sec. 7. — Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2550.   

ANNOTATIONS:  

Rison v. Shepherd, 299 Ky. 693 (KY, 1945)

Since we have reached the conclusion that the fraud was not committed by the administrator until he refused to account when called upon to do so on July 25, 1942, and as the suit was filed about six months thereafter, KRS 413.170 (tolling the statute of limitation during infancy), KRS 413.220 and 413.230 (limiting the right of action against the surety on an administrator’s bond to 5 years after the right of action accrues), have no application. ******

 

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KRS 413.240 Action against surety — When limitation does not run.

The limitations given in KRS 413.220 and 413.230 shall not apply to the time elapsed when there was no executor, administrator or other person authorized to commence an action, nor to the six (6) months during which an action cannot be brought against a personal representative, nor to any delay assented to by the surety in writing. If judgment is rendered for the plaintiff in any case provided for in those sections and it is afterwards reversed or arrested so that the plaintiff takes nothing by it, he may commence another action within one (1) year thereafter. If the surety absconds, conceals himself or by removal from the state or otherwise, obstructs or hinders his being sued the time of such obstruction shall not be counted as part of the time of limitation allowed by those sections. If the judgment is obstructed by appeal, supersedeas or injunction the time of such obstruction shall also be disallowed.

Effective: October 1, 1942  History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2552.

 
 
ANNOTATIONS:
 

Com., Natural Resources and Environmental Protection Cabinet v. Kentucky Ins. Guar. Ass’n, 972 S.W.2d 276 (Ky. App., 1997)

  The Cabinet’s third argument is that the statute of limitations does not apply because the violations giving rise to the bond forfeitures are unabated and continuing. In support of its position, the Cabinet relies primarily on several state and federal cases involving nuisance and trespass claims. To counter the Cabinet’s continuing violation theory, KIGA cites the exclusivity of the tolling provisions contained in KRS 413.240 and policy considerations favoring the conclusion that KRS 413.220(3) commenced to run upon issuance of the notices of noncompliance. Agreeing with KIGA’s position, the circuit judge referred to KRS 413.150 which applies the limitations provisions prescribed by Chapter 413 to the Commonwealth and private persons alike, "except where a different time is prescribed by statute." Emphasizing the General Assembly’s retention of a clearly articulated right to extend or change the limitation periods set out in Chapter 413, the trial judge found significant the lack of a statutory provision removing continuing violations from the periods set forth in KRS 413.220(3). He also noted that placing no time limitation on the Cabinet’s election to pursue a claim would greatly reduce the incentive for the Cabinet to act swiftly in such matters. We agree.

 

Curry v. Vanguard Ins. Co., 923 F.2d 484 (C.A.6 (Ky.), 1991)

 (Emphasis added.) Additionally, there is nothing in the organization of Chapter 413 of the Kentucky Revised Statutes to set sections 413.240 and 413.320, clearly referencing only legislatively mandated limitation periods, apart from section 413.310.

        Thus, in our view, Curry’s attempt to distinguish his situation from the Turner case would not be convincing to the Supreme Court of Kentucky. No Kentucky statute or case conclusively dictates the outcome in Curry’s situation. However, in light of Turner and of Kentucky’s policy favoring limitations of actions under insurance policies, we believe that the Kentucky Supreme Court would conclude that section 413.310 does not operate to toll a limitations period created by an insurance contract. We therefore hold that Curry’s action against Vanguard was barred by the one-year limitations period created by the insurance contract. 1

 

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KRS 413.241 Legislative finding — Limitation on liability of licensed sellers or servers of intoxicating beverages — Liability of intoxicated person.

(1) The General Assembly finds and declares that the consumption of intoxicating beverages, rather than the serving, furnishing, or sale of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or another person.

(2) Any other law to the contrary notwithstanding, no person holding a permit under KRS Chapters 241 to 244, nor any agent, servant, or employee of the person, who sells or serves intoxicating beverages to a person over the age for the lawful purchase thereof, shall be liable to that person or to any other person or to the estate, successors, or survivors of either for any injury suffered off the premises including but not limited to wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were sold or served, unless a reasonable person under the same or similar circumstances should know that the person served is already intoxicated at the time of serving.

(3) The intoxicated person shall be primarily liable with respect to injuries suffered by third persons.

(4) The limitation of liability provided by this section shall not apply to any person who causes or contributes to the consumption of alcoholic beverages by force or by falsely representing that a beverage contains no alcohol.

(5) This section shall not apply to civil actions filed prior to July 15, 1988.

Effective: June 25, 2013

History: Amended 2013 Ky. Acts ch. 121, sec. 103, effective June 25, 2013. —  Amended 1998 Ky. Acts ch. 121, sec. 36, effective July 15, 1998. — Created 1988 Ky. Acts ch. 434, sec. 1, effective July 15, 1988.

 
 
ANNOTATIONS:    
 

Carruthers v. Edwards (Ky. App., 2012) 2011-CA-001612-MR  August 10, 2012

The parties first dispute the continuing validity of the Dram Shop Act following this Court’s recent opinion Taylor v. King, 345 S.W.3d 237 (Ky. App. 2010). In Taylor, this Court declared unconstitutional KRS 413.241‘s provision governing proximate cause "to the extent it would prevent a fact-finder from determining whether an injury was a foreseeable consequence of a dram shop’s improper service of alcohol." Id. at 244. In so doing, we explained "the legislative finding regarding proximate causation in KRS 413.241(1) intrudes upon the fact-finding role of the courts[.]" Id. at 243. Accordingly, in light of Taylor, KRS 431.241(1)’s presumption or imputation of proximate cause no longer exists. Id.

 The relevant sections of KRS 413.241 "imposing liability upon a dram shop or its creation of a priority of liability between the dram shop and the intoxicated tortfeasor" however, remain unchanged. Id. at 244. KRS 413.241 still imposes a duty upon a dram shop and its employees, before selling or serving alcohol to a person, to use their powers of observation to perceive readily visible warning signs that a person is intoxicated, and to refrain from serving or selling alcohol to that patron. KRS 413.241(2). If the dram shop or its employees fail to perceive, or simply ignore, those warning signs, the dram shop may be held liable pursuant to KRS 413.241 provided the dram shop’s negligent conduct is also the proximate cause of the plaintiff’s injuries. Id.Taylor, 345 S.W.3d at 244.

In sum, while Taylor struck down as unconstitutional the presumption of proximate cause codified in KRS 423.241(1), it neither addressed nor held the remainder of KRS 413.241 unconstitutional. 345 S.W.3d at 244. Dram shop liability – under specifically delineated circumstances – still exists in this Commonwealth, as does the statutory limitation on liability. See KRS 413.241(2).

 

Fort Mitchell Country Club v. Lamarre (Ky., 2012) 2011-SC-000665-DG   December 20, 2012

Summaries:  Source: Justia
Timothy and Theresa LaMarre and their two children filed a personal injury action against Michael and Kimberly Plummer and the Fort Mitchell Country Club after a golf cart Mr. Plummer was driving accelerated while Mr. LaMarre was attempting to take his seat, resulting in serious injuries to Mr. LaMarre. The suit alleged the Club was liable for Mr LaMarre’s injuries as a result of Mr. Plummer’s negligence in driving a golf cart while intoxicated. The trial court granted summary judgment for the Club, finding that the Dram Shop Act applied and shielded the Club from any liability in the matter. The court of appeals reversed. The Club sought discretionary review. The Supreme Court reversed the decision of the court of appeals and reinstated the circuit court’s summary judgment order, holding that because the Club held an alcohol license under Kan. Rev. Stat 243.030, it was not liable for Mr. Plummer’s negligence unless one of the stated exceptions under the Act was met, and none of the exceptions were met in this case.

 

   The suit alleges that the Club was not entitled to the protection of KRS 413.241 (the Dram Shop Act) for two reasons. First, because the Club served alcohol after it was apparent Mr. Plummer was intoxicated. Secondly, it is alleged that the Club was not entitled to the protection because it was guilty of selling alcohol in violation of its special private club license.

Here, there is simply a total absence of any evidence that Mr. Plummer was intoxicated while at the Club so that "a reasonable person . . . should know that the person served is already intoxicated at the time of the serving." KRS 413.241(2).

SCOTT, J., DISSENTING: I must respectfully dissent from the majority’s conclusion for two reasons. First, I do not believe KRS 413.241—Kentucky’s Dram Shop Act—is applicable to the facts of this case. KRS 413.241 is applicable to "person[s] [and their employees] holding a permit under KRS 243.030, 243.040, [or] 243.050 . . . ." Appellant held a "special private club license" under KRS 243.270. The "special private club license" authorized Appellant "to exercise the privilege of a . . . distilled spirits and wine retail drink licensee . . . at the designated premises if the general public is excluded." KRS243.270. Admittedly, this permitted Appellant "to purchase, receive, possess, and sell distilled spirits and wine at retail by the drink for consumption on the licensed premises." KRS 243.250.

However, the evidence established that Appellant violated the terms of its license by providing Mr. Plummer a bottle of champagne to be consumed on or off of Appellant’s premises. Not being served by the drink, this sale was a clear violation of Appellant’s license. Being such, I cannot conceive (as does the majority) that the legislature intended the Dram Shop Act’s protections to extend to those who violate the licenses the Act was designed to protect.   

[U] Ohio Valley Bistros, Inc. v. Clymer (Ky., 2012) 2012-SC-000117-MR  November 21, 2012

On December 26, 2008, William Gerald Watson, a real party in interest, was injured in a single car accident while riding as a passenger in a car driven by Joseph Taylor. The two had been drinking that evening prior to the time of the accident. Watson filed suit in McCracken Circuit Court under Kentucky’s Dram Shop Statute (KRS 413.241). The suit was filed against Appellant, Ohio Valley Bistros, Inc., d/b/a T.G.I. Friday’s, and other establishments that had allegedly served Taylor alcohol that …  

Ohio Valley Bistros asserts that the only arguable relevance of its financial condition to this case is with respect to the issue of punitive damages; and it is uncertain, under recent case law, whether punitive damages are recoverable under KRS 413.241. More specifically, Ohio Valley Bistros points to an alleged "decisional conflict" between Jackson v. Tullar, 285 S.W.3d 290 (Ky. App. 2007) and Taylor v. King, 345 S.W.3d 237 (Ky. App. 2010).

The Court of Appeals, in Jackson, found that KRS 413.241(1) expressly denied the recovery of punitive damages. The court, in Taylor,did not dispute the holding in Jackson, but found the statute’s prohibition on the recovery of punitive damages to be unconstitutional. The Jackson court did not comment on the constitutionality of the statute, as that issue was not before it. We have never addressed the holdings in either Jackson or Taylor and how they might conflict.

 

Martin v. Elkins (Ky. App., 2012) 2011-CA-000862-MR September 21, 2012

However, the alleged tortious conduct in this case was an assault by Byrd on Martin, an act which occurred at another location and due to an automobile fender bender. This conduct was beyond the scope of reasonable foreseeability by Elkins. Wilkerson, 336 S.W.3d at 923. As previously stated, persons are generally entitled to assume that third parties will not commit intentional criminal acts. Id. Indeed, even the Dram Shop statutes, which are intended to be more stringent as they apply to businesses rather than individual social hosts, place the primary liability for injuries to third parties upon the intoxicated person rather than the business establishment. KRS 413.241(3); Isaacs v. Smith, 5 S.W.3d 500 (Ky. 1999).  

 

LaMarre v. Fort Mitchell Country Club (Ky. App., 2011) – June 24, 2011 –   2010-CA-000813

Appellants make three arguments to this court: 1) the motion for summary judgment was premature; 2) the protection of the Dram Shop Act is not an available defense to FMCC; and 3) genuine issues of fact exist which preclude summary judgment.

The Dram Shop Act states:

(1) The General Assembly finds and declares that the consumption of intoxicating beverages, rather than the serving, furnishing, or sale of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or another person. 

(2) Any other law to the contrary notwithstanding, no person holding a permit under KRS 243.030, 243.040, 243.050, nor any agent, servant, or employee of the person, who sells or serves intoxicating beverages to a person over the age for the lawful purchase thereof, shall be liable to that person or to any other person or to the estate, successors, or survivors of either for any injury suffered off the premises including but not limited to wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were sold or served, unless a reasonable person under the same or similar circumstances should know that the person served is already intoxicated at the time of serving.

(3) The intoxicated person shall be primarily liable with respect to injuries suffered by third persons.

(4) The limitation of liability provided by this section shall not apply to any person who causes or contributes to the consumption of alcoholic beverages by force or by falsely representing that a beverage contains no alcohol.

(5) This section shall not apply to civil actions filed prior to July 15, 1988.

KRS 413.241(held to be unconstitutional to the extent that it prohibits recovery of punitive damages by Taylor v. King, 2010 WL 3810797 (Ky. App. 2010) (2009-CA-001599-MR)(not yet final; motion for discretionary review of Kentucky Supreme Court pending).

In support of their argument that FMCC is not entitled to protection under the Dram Shop Act, Appellants assert that FMCC’s service of alcohol to Mr. Plummer was in violation of its alcohol permit, therefore exempting it from the Act’s protection. Appellants cite to Sixty-Eight Liquors, Inc. v. Colvin, 118 S.W.3d 171 (Ky. 2003), in which the Kentucky Supreme Court held that a dram shop which sells alcohol to a minor does not enjoy the protections of the Act. The trial court, in disagreeing with Appellants’ argument, distinguished the Sixty-Eight Liquors case as being applicable to only those situations in which an establishment had sold alcohol to a minor. The trial court went on to conclude that "the only exception carved out from that broad limitation of liability is the aforementioned language pertaining to sale to a person not over the lawful age to purchase alcohol." Our interpretation of the Dram Shop Act is not so broad.

As Appellants point out, and as the trial court found, FMCC did not have a retail package license. Instead, FMCC possessed a special private club license, pursuant to KRS 243.270, which only permits the distribution of retail alcoholic drinks. "A distilled spirits and wine retail drink license shall authorize the licensee to purchase, receive, possess, and sell distilled spirits and wine at retail by the drink for consumption on the licensed premises." KRS 243.250 (emphasis added). The evidence indicates that FMCC sold Mr. Plummer a bottle of champagne to be consumed off the premises. "A retail drink license shall not authorize the licensee to sell distilled spirits or wine by the package." Id. The language of the licensing statutes is clear that the licenses are not interchangeable. Nonetheless, the evidence indicates that FMCC treated them as such. We do not believe it was the intent of the legislature to offer protection of the Dram Shop Act to establishments which distribute alcohol in direct violation of their license(s). To so hold would clearly stifle the interest of all alcohol licensing laws as well as the Dram Shop Act itself. Accordingly, the trial court’s determination that FMCC was entitled to protection of the Dram Shop Act was incorrect, making it possible for Appellants to produce evidence at trial supporting a judgment in their favor. See James Graham Brown Foundation, 814 S.W.2d at 276.

Assuming arguendo that FMCC had not acted in direct contravention of its license, summary judgment would still be inappropriate. The trial court erred  when it determined that there was no evidence that the FMCC employees knew or should have known that Mr. Plummer was intoxicated. The trial court based its finding on the fact that the LaMarres had not believed Mr. Plummer to be intoxicated and that a police officer who investigated the accident saw no indication of Mr. Plummer’s intoxication. Setting aside the question of whether the police officer actually spoke to Mr. Plummer that night, this is not the appropriate test to determine whether the FMCC employees knew or should have known if Mr. Plummer was intoxicated. Instead, the appropriate test is whether "a reasonable person under the same or similar circumstances should know that the person served is already intoxicated at the time of serving." KRS 413.241(emphasis added). Mr. Plummer’s dinner guests, who had also been consuming alcohol, could arguably be neither reasonable nor under the same or similar circumstances as the employees who were not consuming alcohol. Furthermore, a police officer filing a report at a later-occurring accident would not be privy to Mr. Plummer’s condition at the time he was served the fourth bottle of alcohol. Accordingly, genuine issues of material fact exist whether FMCC employees knew or should have known that Mr. Plummer was intoxicated, making summary judgment improper.

Assuming arguendo that FMCC had not acted in direct contravention of its license, summary judgment would still be inappropriate. The trial court erred when it determined that there was no evidence that the FMCC employees knew or should have known that Mr. Plummer was intoxicated. The trial court based its finding on the fact that the LaMarres had not believed Mr. Plummer to be intoxicated and that a police officer who investigated the accident saw no indication of Mr. Plummer’s intoxication. Setting aside the question of whether the police officer actually spoke to Mr. Plummer that night, this is not the appropriate test to determine whether the FMCC employees knew or should have known if Mr. Plummer was intoxicated. Instead, the appropriate test is whether "a reasonable person under the same or similar circumstances should know that the person served is already intoxicated at the time of serving." KRS 413.241. Mr. Plummer’s dinner guests, who had also been consuming alcohol, could arguably be neither reasonable nor under the same or similar circumstances as the employees who were not consuming alcohol. Furthermore, a police officer filing a report at a later-occurring accident would not be privy to Mr. Plummer’s condition at the time he was served the fourth bottle of alcohol. Accordingly, genuine issues of material fact exist whether FMCC employees knew or should have known that Mr. Plummer was intoxicated, making summary judgment improper.

Because we have already held that the grant of summary judgment was inappropriate, it is not necessary for us to address Appellants’ argument that it was granted prematurely. We further note that our holding pertains only to the trial court’s grant of summary judgment and has no bearing on Appellants’ ability to succeed on the merits of their claim.

For the foregoing reasons, the April 19, 2010, order of the Kenton Circuit Court is reversed. 

Taylor v. King, 345 S.W.3d 237 (Ky. App., 2010)

After the enactment of KRS 413.241, the Kentucky Supreme Court addressed the application of the Dram Shop Act in DeStock No. 14, Inc. v. Logsdon, 993 S.W.2d 952 (Ky.1999). In that case, the Kentucky Supreme Court examined the language of KRS 413.241 and concluded that liability may be imposed upon a dram shop despite the statute’s express declaration that a dram shop’s actions cannot, as a matter of law, be considered the proximate cause of any injury inflicted by an intoxicated person. Id. at 957. Under this liability-without-causation scheme, the dram shop’s liability is based upon its own negligence if it sold or served intoxicating beverages to a person when a reasonable person under the same or similar circumstances would know that he is already intoxicated. However, causation for the third party’s damages is imputed based upon the liability of the intoxicated tortfeasor. Furthermore, the Court further found that the statute creates a priority of liability by holding the consuming party primarily liable, and the dram shop secondarily liable with regard to indemnity. Id. See also Sixty–Eight Liquors, Inc. v. Colvin, 118 S.W.3d 171, 174 (Ky.2003).

However, DeStock did not address whether punitive damages could be recovered against a dram shop for a claim under the Act. That issue remained unresolved until the recent decision in Jackson v. Tullar, supra, in which this Court addressed, among other things, whether punitive damages may be awarded against a dram shop for a violation of KRS 413.241. This Court first noted that a plaintiff cannot recover punitive damages against a defendant unless that defendant’s conduct was  [345 S.W.3d 242] the proximate cause of any injury to the plaintiff. Id. at 297, citing  Fowler v. Mantooth, 683 S.W.2d 250 (Ky.1984). However, KRS 413.241(1) expressly precludes a finding that the actions of the dram shop were the proximate cause of the injury to the third party. The Court went on to note that the General Assembly provided that a dram shop may be liable for compensatory damages without proximate causation, but it did not specifically allow for recovery of punitive damages. Consequently, the Court concluded that punitive damages are not available under the Dram Shop Act. Jackson, supra, at 297–98.

In Williams v. Wilson, supra, the Kentucky Supreme Court held that the doctrine precluded the General Assembly’s attempt to abolish the common-law remedy for punitive damages based upon gross negligence. Id. at 267. Likewise, the Estate [345 S.W.3d 243] contends that the Dram Shop Act is unconstitutional to the extent that it prohibits recovery of punitive damages against a dram shop based on its gross negligence or reckless actions. Based on the interpretation of the jural rights doctrine as set out in Williams v. Wilson, we are compelled to agree.

There are no cases prior to Grayson which address whether punitive damages could be recovered against a dram shop. It is arguable that punitive damages were not available prior to Grayson, because dram shop liability was based upon violation of specific statutory duties. However, Grayson extended liability by holding that a dram shop may be liable based upon breach of a common-law duty of care. Williams v. Wilson recognized that there is a long-established common-law right to recover punitive damages arising from gross negligence, recklessness, or wantonness. Williams, supra at 263–64. By adopting a negligence standard of care as applied to dram shops in Grayson, the Supreme Court opened dram shop claims to the full range of damages recoverable in any negligence claim.

Skyline urges that the General Assembly has the prerogative to make a public policy determination that the consumption, rather than the serving of intoxicating beverages, is the proximate cause of any injury inflicted by an intoxicated person upon himself or another person. We agree that in most situations, the formulation of public policy is a matter within the purview of the legislature. However, that prerogative is circumscribed by the limits imposed by the Kentucky Constitution. Section 54 of the Kentucky Constitution prohibits the General Assembly from limiting recovery for wrongful death, personal injury, or injury to property. Under the jural rights doctrine, the General Assembly cannot enact any limitation on recovery of a common-law right of action for wrongful death or personal injury. We conclude that the General Assembly’s adoption of a proximate causation standard runs afoul of the limits imposed by the Kentucky Constitution.

Since Grayson, Kentucky courts have recognized that not every injury will be a foreseeable consequence of the dram shop’s improper service of alcohol. See Isaacs v. Smith, 5 S.W.3d 500 (Ky.1999), holding that a shooting was not a foreseeable consequence of sale of alcohol; and Priest ex rel. Estate of Priest v. Black Cat, Inc., 74 S.W.3d 769 (Ky.App.2001), holding that genuine issues of material fact existed as to whether minor’s drowning was a foreseeable result of the illegal sale of alcohol.

Nevertheless, the Kentucky Supreme Court has held that it is clearly foreseeable that an intoxicated patron who thereafter operates his motor vehicle may injure a third party. Isaacs v. Smith, supra at 503.

In any case, Kentucky’s common law has entrusted the determination of legal causation to the courts. By attempting to set out a contrary definition of proximate causation, the General Assembly has intruded into the purview of the judiciary. Consequently, we must find that KRS 413.241(1) is unconstitutional to the extent that it would prevent a fact-finder from determining whether an injury was a foreseeable consequence of a dram shop’s improper service of alcohol.

Since we have found that KRS 413.241(1) is unconstitutional as a violation of the jural rights and the separation-of-powers doctrines, we need not address the Estate’s remaining constitutional arguments. Furthermore, the Estate does not challenge the Act’s standard for imposing liability upon a dram shop or its creation of a priority of liability between the dram shop and the intoxicated tortfeasor. Thus, any issue regarding the constitutionality of these provisions is not before this Court.

Rather, we hold only that KRS 413.241 may not be constitutionally interpreted as prohibiting a recovery of punitive damages against a dram shop or establishing the standard for proximate cause. However, we emphasize that a recovery of punitive damages in such a case must be based on the actions of the dram shop, not of the intoxicated tortfeasor. While the liability of the intoxicated tortfeasor remains relevant to determine the dram shop’s liability for compensatory damages, it is not relevant to an award of punitive damages against the dram shop. The factual determination is whether the dram shop’s violation of its common-law and statutory duties amounted to gross negligence, fraud, oppression, or malice. The trial court may determine the sufficiency of the evidence on this issue and on any issues relating to legal causation. However, if the trial court determines that there are genuine issues of material fact on these issues, the matters must be submitted to the jury. [345 S.W.3d 245]

Accordingly, the judgment of the Christian Circuit Court is reversed, and this matter is remanded for further proceedings on the merits of the Estate’s claim for punitive damages as set out in this opinion.

 

Jackson v. Tullar, No. 2005-CA-001006-MR (Ky. App. 6/1/2007) (Ky. App., 2007)

      In DeStock # 14, Inc. v. Logsdon, 993 S.W.2d 952 (Ky. 1999), the Kentucky Supreme Court examined the language of KRS 413.241 and concluded that liability may be imposed upon a dram shop despite the statute’s express declaration that a dram shop’s actions cannot, as a matter of law, be considered the proximate cause of any injury inflicted by an intoxicated person. Id. at 957. Under this liability without causation scheme, liability is imputed to the dram shop for injuries to a third person if the dram shop’s employees sold or served intoxicating beverages to a person when a reasonable person under the same or similar circumstances would know that he is already intoxicated. If the reasonable person test under KRS 413.241(2) is met, the sale or service can be considered a substantial factor in the accident. See Sixty-Eight Liquors, Inc. v. Colvin, 118 S.W.3d 171, 174 (Ky. 2003)

     Since it has been legislatively determined in KRS 413.241(1) that DeStock’s negligence did not proximately cause Reid’s and Alvey’s injuries, comparative fault and apportionment are inapplicable to a determination of DeStock’s liability. As far as Reid and Alvey are concerned, KRS 413.241(2) imputes Logsdon’s liability to DeStock and recovery can be had against either or both. However, as between Logsdon and DeStock, KRS 413.241(3) declares Logsdon to be primarily liable and DeStock only secondarily liable, which entitles DeStock to the remedy of indemnity.

 

DeStock #14, Inc. v. Logsdon, 993 S.W.2d 952 (KY, 1999)

     While stopped at a red light, an automobile operated by Christopher Reid and occupied by Heather Alvey was struck in the rear by an automobile operated by James Logsdon. The collision pushed Reid’s vehicle forward, causing it to collide with a third vehicle which was also stopped at the red light. Reid and Alvey -both were injured as a result of the collision and brought this action in the McCracken Circuit Court seeking damages against Logsdon. They also sued DeStock #14, Inc., d/b/a Applebee’s Neighborhood Grill & Bar, asserting liability under Kentucky’s dram shop statute, KRS 413.241. DeStock cross-claimed against Logsdon for indemnity for any sums which it might be required to pay in damages to Reid and/or Alvey.

     The two statutes at issue here both were enacted during the 1988 regular session of the General Assembly and both took effect on the same date, July 15, 1988. KRS 411.182 addresses tort actions in general; KRS 413.241 addresses actions against dram shops in particular. Statutes enacted at the same session of the legislature are entitled to equal dignity and should be construed so as to give effect to both. Sumpter v. Burchett, 304 Ky. 858, 202 S.W.2d 735 (1947). When two statutes deal with the same subject matter, one in a broad, general way and the other specifically, the specific statute prevails. Land v. Newsome, KY., 614 S.W.2d 948 (1981). Applying these rules of construction, we conclude that KRS 411.182 does not require apportionment of liability between the drunken driver and the dram shop in an action brought under KRS 413.241. (Of course, evidence of fault on the part of Reid would require an apportionment of liability between him and Logsdon, and DeStock’s liability would be limited to the percentage of causation attributable to Logsdon.)

 

DeStock #14, Inc. v. Logsdon, 993 S.W.2d 952 (KY, 1999)

      As introduced in the 1988 General Assembly, House Bill 570, which would become KRS 413.241, was almost identical to the Louisiana drain shop statute cited supra, See 1988 Ky. House Journ. 1050-51. The legislative declaration with respect to proximate cause in KRS 413.241(1) is also found in section A of the Louisiana statute, as well as in the South Dakota and Georgia dram shop statutes cited supra. Also like the Louisiana statute, the initial version of House Bill 570 did not contain the last clause in section (2); thus, the bill would have abrogated Grayson, supra, to the extent that Grayson extended dram shop liability to the sale or service of intoxicating beverages to a person already intoxicated. Subsequent amendments to House Bill 570 culminated in the inclusion of the last clause of section (2), which effectively reinstated the holding in Grayson.2 The "proximate cause" declaration in section (1), and the "primarily liable" language in section (3) remained essentially intact.

            ******* There is a distinction between causation and liability. Section (1) of the statute declares that the sale or service of intoxicating beverages to Logsdon by DeStock’s employees was not a proximate cause of Reid’s and Alvey’s injuries. However, section (2) imputes Logsdon’s liability to DeStock, if DeStock’s employees sold or served intoxicating beverages to Logsdon when a reasonable person under the same or similar circumstances should have known that he was already intoxicated (and, of course, if that fact was a substantial factor in causing him to be intoxicated at the time of the accident, and if his intoxication was a substantial factor in causing the accident). If so, both DeStock and Logsdon are liable for the injuries sustained by Reid and Alvey; but, pursuant to section (3), Logsdon is primarily liable and DeStock only secondarily liable. Thus, KRS 413.241 dispelled the suggestion in Grayson that the dram shop anti the drunken driver ought to be considered in pari delicto.

      Since Logsdon and DeStock were not in pan delicto and Logsdon is primarily liable and DeStock only secondarily liable to Reid and Alvey, DeStock will be entitled to indemnity against Logsdon for any sums it is required to pay in damages to them. Lexington Country Club v. Stevenson, Ky., 390 S.W.2d 137, 143 (1965). "[t]he wrongdoer less culpable than another may recover over although the wrong of each contributed to bring about the injury." Middlesboro Home Tel. Co. v. Louisville & N.R. Co., supra, 284 S.W. at 105. Unlike the situation presented in Crime Fighters Patrol v. Hiles, Ky., 740 S.W.2d 936 (1987), we are not required in this case to address the policy issue of whether the dram shop ought to be deemed in pari delicto with the drunken driver or whether it ought to be only secondarily liable, because that policy issue was decided by the legislature when it enacted KRS 413.241.

      4. DeStock shall be entitled to a judgment against Logsdon for indemnity for the amount of any judgment rendered against it in favor of Reid and/or Alvey.

        LAMBERT, C.J.; JOHNSTONE, KELLER, STUMBO, WINTERSHEIMER, JJ., and Special Justice W. DAVID DENTON, concur.

 

Colvin v. Sixty-Eight Liquors, Inc., 2001 KY 187 (KYCA, 2001)

   While the trial court held that Sixty-Eight Liquors was secondarily liable to claims made by third parties and was entitled to seek indemnity from Colvin to the extent it was required to satisfy its secondary liability to those third parties, it also held that Sixty-Eight Liquors had no liability to Colvin because the accident was proximately caused by his conduct and not by the illegal sale of the beer to Colvin. See KRS 413.241(1). In doing so, the trial court made no mention of the wording in KRS 413.241(2).

       Concerning the issue of indemnity, we hold that Sixty-Eight Liquors clearly has a valid claim against Colvin for indemnity relative to claims made by injured third persons against Sixty-Eight Liquors. DeStock, 993 S.W.2d at 958; also, KRS 413.241(3).   However, Sixty-Eight Liquors has no indemnity claim against Colvin under the statute for any liability it may have to Colvin due to his injuries and death. Indemnity has been defined as "the right of a party who is secondarily liable to recover from the party who is primarily liable for reimbursement of expenditures paid to a third party[.]" BLACK’S LAW DICTIONARY 772 (7th Ed. 1999). Furthermore, KRS 413.241(3) clearly states that the buyer/driver’s primary liability applies to injuries suffered by third persons. Surely, the General Assembly did not intend to allow a minor to have a valid claim under these circumstances, yet also provide the dram shop with a right of indemnity on that claim.

   The judgment of the Marion Circuit Court is reversed, and this case is remanded for proceedings consistent with this opinion.

 

Sixty-Eight Liquors v. Colvin, No. 2001-SC-0830-DG (Ky. 10/23/2003) (Ky., 2003)

     At issue is whether KRS 413.241(1) defeats the dram shop claim of a minor who unlawfully purchases and consumes alcoholic beverages because section (1) of the statute declares consumption to be the proximate cause of the injuries.

   Upon the plain language of KRS 413.241 and persuasive decisional law, we have no doubt that a minor has a valid claim against the dram shop that sells him alcohol thereby causing or contributing to his injuries. In DeStock, this Court examined the legislative history of KRS 413.241 and reasoned that the result should be the same whether the sale or service of alcohol is to a minor or to an intoxicated person.

        In fact, sections (1) and (3) could never have been intended to completely immunize dram shops from liability; for even the original version of House Bill 570 did not purport to abrogate dram shop liability with respect to a sale or service to a minor. There is no reason to assume that the legislature intended one result with respect to a sale or service to a minor and a different result with respect to sale or service to an intoxicated person.

This is so because the statutory assignment of proximate cause requires that the purchaser be over the age for lawful purchase. If the purchase is lawful and a reasonable seller would not believe the purchaser to be intoxicated, the plain language of sections (1) and (2) relieves a dram shop of liability. A legal sale is required for a dram shop to be shielded from liability under KRS 413.241.

      ******The Court of Appeals was also correct in its conclusion that Sixty-Eight Liquors has no indemnity claim against the Colvin Estate for liability it may have to the Estate due to Colvin’s injuries and death. The statute assigns primary and secondary liability only with respect to injuries suffered by third parties. It would be absurd to construe the statute in a manner that would allow a minor to have a valid claim under the circumstances presented here, yet also grant the dram shop the right of indemnity from the minor’s estate on that claim.

        For the foregoing reasons, we affirm the Court of Appeals.

 

Dubord v. Gmri, Inc., 52 F.Supp.2d 779 (W.D. Ky., 1999)

   The notion that Kentucky courts would not recognize the claim Dubord makes in this case is buttressed by the provisions of KRS 413.241(2), in which the Kentucky General Assembly barred first-party claims by overage persons against sellers of alcoholic beverages for injuries such persons inflict upon themselves as a result of being intoxicated. We are convinced that this constraint would also be applied to those persons 18 to 21 years of age, based upon the legislative purpose clearly set out in KRS 413.241(1).

 The New York Court of Appeals has opined that:

        Recognizing a private right of action in favor of the intoxicated youth … would be inconsistent with the evident legislative purpose underlying the scheme … to utilize civil penalties as a deterrent while, at the same time, withholding reward from the individual who voluntarily became intoxicated for his or her own irresponsible conduct.         ****** We believe the Kentucky courts would say the same.

CONCLUSION

        As a matter of law, Dubord’s claims in this case are barred. The motion of the defendant, GMRI, Inc., for summary judgment will be granted by separate order. 

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KRS 413.242 Prerequisite to action against purchaser or selling agent of equine interest.

Before a party possessing a security interest or lien against an equine interest that has been sold without the debt to the party being discharged may bring an action against the purchaser or selling agent of the equine interest, the secured party shall pursue a remedy against the debtor to the point where a judgment is rendered on the merits or the suit is dismissed with prejudice.

Effective: July 1, 2001  History: Created 2000 Ky. Acts ch. 408, sec. 184, effective July 1, 2001.  

 

NO ANNOTATION FOR THIS STATUTE 

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KRS 413.243 "Professional services" defined.

As used in KRS 413.245, "professional services" means any service rendered in a profession required to be licensed, administered and regulated as professions in the Commonwealth of Kentucky, except those professions governed by KRS 413.140.

Effective: July 15, 1980 History: Created 1980 Ky. Acts ch. 159, sec. 1, effective July 15, 1980.

 
ANNOTATIONS: 

GWR Development, Inc. v. Gregory, No. 2009-CA-000097-MR (Ky. App. 5/21/2010) (Ky. App., 2010)

     The sole issue to be determined in this appeal is whether the trial court correctly found GWR’s complaint was untimely filed. It is undisputed that Louisville Planning and Engineering renders professional services as that term is defined in KRS 413.243. It is further undisputed that this action is brought as a professional negligence claim and that KRS 413.245 sets the limitations period for bringing such actions at "one year from the date of the occurrence or from the date when the cause of action was, or reasonably should have been, discovered by the party injured." The parties disagree as to whether GWR knew or reasonably should have known of the existence of its cause of action more than one year prior to the filing of the instant complaint. In determining the propriety of the trial court’s ruling, we are required to assess the facts in the light most favorable to GWR and resolve all doubts in its favor as it is the party opposing the summary judgment motion. Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991) (adopting Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985)). We have reviewed the record and conclude the trial court correctly granted summary judgment. Therefore, we recite the trial court’s findings verbatim and hereby adopt them as our own.

        Thus, the undisputed facts establish that [GWR] knew long before October 24, 2005, that the overhead electrical lines existed and would have to be removed at its expense. …. Thus, even viewing the evidence in a light most favorable to [GWR], the Court finds that [GWR] should reasonably have discovered the facts giving rise to this lawsuit prior to October 24, 2005. Accordingly, the statute of limitations expired prior to the filing of the Complaint, and Defendants are entitled to judgment as a matter of law. 

 

Gardiner Park Development v. Matherly Land Surveying, Inc., No. 2003-CA-002017-MR (KY 4/29/2005) (KY, 2005)

 "Professional services" is defined in KRS 413.243 as meaning, "any service rendered in a profession required to be licensed, administered and regulated as professions[.]" Obviously the definition of professional services in KRS 413.243 is only marginally helpful.

 

Plaza Bottle Shop, Inc. v. Al Torstrick Ins. Agency, Inc., 712 S.W.2d 349 (Ky. App., 1986)

  The sole issue for our consideration in this appeal is whether the services rendered by an insurance agent are "professional services" as contemplated by the statute. KRS 413.243 defines "professional service" as "any service rendered in a profession required to be licensed, administered and regulated as professions in the Commonwealth…." (Emphasis added.) It is significant to the issue before us that the statute does not provide that such services include any services rendered in a trade or occupation required to be licensed. The mere fact that one is licensed or regulated by the state does not make his services "professional" within the purview of this statute.

 

Old Mason’s Home of Kentucky, Inc. v. Mitchell, 892 S.W.2d 304 (Ky. App., 1995)

    In our opinion, the trial court properly concluded the statute-of-limitations provisions of KRS 413.245 governed this action. At all times relevant herein, Mitchell was providing architectural services, albeit pursuant to a contract, for Mason. KRS 413.243 defines "professional services" to mean "… [a]ny service rendered in a profession required to be licensed, administered and regulated as professions in the Commonwealth of Kentucky,…." By law, architects are required to be licensed in this Commonwealth.

      A judgment confirming the arbitration award in this action would be contrary to the law. The undisputed facts demonstrate the statute of limitations expired prior to the filing of the action. As a matter of law, Mitchell was entitled to judgment.

  Accordingly, for all the foregoing reasons, the order of the Shelby Circuit Court dismissing Mason’s complaint is affirmed

        All concur. 

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KRS 413.245 Actions for professional service malpractice.

Notwithstanding any other prescribed limitation of actions which might otherwise appear applicable, except those provided in KRS 413.140, a civil action, whether brought in tort or contract, arising out of any act or omission in rendering, or failing to render, professional services for others shall be brought within one (1) year from the date of the occurrence or from the date when the cause of action was, or reasonably should have been, discovered by the party injured. Time shall not commence against a party under legal disability until removal of the disability.

Effective: July 15, 1980  History: Created 1980 Ky. Acts ch. 159, sec. 2, effective July 15, 1980.

 
ANNOTATIONS:
 

[U] Eriksen v. Kerrick, Stivers, Coyle & Van Zant, P.L.C. (Ky. App., 2013) 2011-CA-001879-MR   June 14, 2013

William C. Eriksen, P.S.C., filed a legal malpractice complaint against Kerrick, Stivers, Coyle & Van Zant, P.L.C., D. Michael Coyle, and H. Brent Brennenstuhl (collectively "Appellees"), claiming they provided negligent legal representation, committed legal malpractice and breached their employment contract in resolving a debt dispute with a former Eriksen employee. The Hardin Circuit Court granted Appellee’s motion for summary judgment, finding the action was barred by the statute of limitations contained in KRS 413.245.Having reviewed the record, the briefs and the law, we affirm.

…. The sole question here is whether the complaint alleging legal malpractice was timely filed. Both parties agree KRS 413.245 states the applicable statute of limitations for filing a legal malpractice claim—one year "from the date of the occurrence or from the date when the cause of action was, or reasonably should have been, discovered by the party injured." Thus, there are two potential dates on which the statute of limitations begins to run. Eriksen claims the missed breach of contract claims were timely under both the "occurrence" and "discovery" windows, and the failure to find and use the 2002 tax return was timely filed under the "discovery" window.

We turn now to the "discovery" window. The moment Eriksen knew, or by exercising due diligence should have known, it had been injured by Appellees’ action or inaction, the time for filing a malpractice complaint began to run. In this scenario, Eriksen knew, or should have known, of a problem as early as August 2006 when trial occurred. It then had one year from finality of the trial order and judgment (November 13, 2006) to file the malpractice claim. By not filing the complaint until November 10, 2009, Eriksen was well outside the statute of limitations expressed in KRS 413.245.

 

[U] Estate of Lamb v. Wehrman & Wehrman (Ky. App., 2012) 2011-CA-001566-MR October 26, 2012

The Estate argues that the trial court erred in ruling that the Statute of Limitations in her professional service malpractice action against Wehrman & Wehrman and Brinker commenced at the latest on March 18, 2009, when the Estate became aware that tax returns had not been timely filed. Rather, it maintains that the statutory period for bringing the action commenced at a later date when the amount of damages became fixed and certain. The Estate argues that the court erred in dismissing the action as time-barred. For the reasons stated below, we affirm the Order on appeal.

The issue before us is not the occurrence date of the alleged service malpractice (thus invoking the first prong of KRS 413.245), but rather the date of discovery (thereby invoking the second prong). We characterize the issue as follows: for the purpose of determining the discovery date under KRS 413.245, is the date the plaintiff discovers the cause of action or the amount of fixed damages controlling? We conclude that the date the cause of action was discovered is controlling, and find that the circuit court did not err in so concluding. We first note that KRS 413.245states in unambiguous terms that the controlling date is the date the cause of action was, or should have been, discovered. "[A] civil action . . . arising out of any act or omission in rendering . . . professional services . . . shall be brought within one (1) year . . . from the date when the cause of action was, or reasonably should have been, discovered by the party injured." KRS 413.245. (Emphasis added). We find as persuasive the Appellees’ assertion that, based on everything that Niedt knew, one may look for the earliest date on which the Estate could have maintained an action against the Appellees for professional service malpractice – and it is this date upon which the Estate can reasonably be said to have discovered the cause of action.

 

Abel v. Austin, No. 2009-CA-000465-MR (Ky. App. 5/28/2010) (Ky. App., 2010)

        Thus, because the statute of limitations begins to run for one year on either the date of occurrence or the date of discovery, Kentucky’s statute of limitations is actually longer than Alabama’s statute of limitations. Alabama’s "discovery" provision is only six months and subject to a four-year cap, while Kentucky’s discovery provision is one year and subject to no cap. Consequently, pursuant to KRS 413.320, since Alabama’s statute of limitations is shorter than Kentucky’s statute, it should be used as the measuring criterion for the two Alabama appellees.

      In fact, the accrual rule is relatively simple: "[A] cause of action is deemed to accrue in Kentucky where negligence and damages have both occurred. . . . [T]he use of the word `occurrence’ in KRS 413.245 indicates a legislative policy that there should be some definable, readily ascertainable event which triggers the statute." Michels v. Sklavos, 869 S.W.2d 728, 730 (Ky. 1994)(quoting Northwestern Nat. Ins. Co. v. Osborne, 610 F.Supp. 126, 128 (D. C. Ky. 1985)) (alterations in original). But, even though the action may have accrued in Kentucky, nothing mitigates against a determination that the action also accrued in Alabama. Beasley Allen’s and Langston’s actions, including the disposition of the settlement funds, only occurred in Alabama. Therefore, we are not persuaded by appellants’ line of reasoning with regard to the "accrual" issue. The pertinent events related to the Alabama attorneys were processed, settled, reviewed, and confirmed by an Alabama court. Similarly, Beasley Allen and Langston never met with any of the appellants because they sent the settlement funds from Alabama to Kentucky via Austin for distribution.

      Clearly, KRS 413.120 is inapplicable unless appellees’ actions were intentional given that fraud must be intentional. Next, we observe that KRS 413.120(12) specifically refers to fraud and mistake, not misrepresentation as averred by the appellants in their complaint. In the case at hand, appellants are alleging that the appellee attorneys committed certain misrepresentations relating to the communication between them and their clients. This type of misrepresentation is different from fraud.

     In addition, the plain language of KRS 413.245 says that it applies to "a civil action, whether brought in tort or contract, arising out of any act or omission in rendering, or failing to render, professional services for others[.]" And the language expressly preempts "any other prescribed limitation of actions which might otherwise appear applicable[.]" See KRS 413.245. Notably, the language of the statute also encompasses any action for perceived fraud between an attorney and client. Thus, the trial court correctly interpreted the appellants’ misrepresentation count as a claim, which is based on the rendering of professional services and, thus, falls under the limitations statute KRS 413.245. To conclude, we hold that appellants’ claims of misrepresentation are under the limitations purview of KRS 413.245 because this statute applies to civil actions, whether in tort or contract, that arise out of the rendering of professional services.

CONCLUSION

        Based on the foregoing, the judgment of the Fayette Circuit Court is affirmed.

 

GWR Development, Inc. v. Gregory, No. 2009-CA-000097-MR (Ky. App. 5/21/2010) (Ky. App., 2010)

     The sole issue to be determined in this appeal is whether the trial court correctly found GWR’s complaint was untimely filed. It is undisputed that Louisville Planning and Engineering renders professional services as that term is defined in KRS 413.243. It is further undisputed that this action is brought as a professional negligence claim and that KRS 413.245 sets the limitations period for bringing such actions at "one year from the date of the occurrence or from the date when the cause of action was, or reasonably should have been, discovered by the party injured." The parties disagree as to whether GWR knew or reasonably should have known of the existence of its cause of action more than one year prior to the filing of the instant complaint. In determining the propriety of the trial court’s ruling, we are required to assess the facts in the light most favorable to GWR and resolve all doubts in its favor as it is the party opposing the summary judgment motion. Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991) (adopting Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985)). We have reviewed the record and conclude the trial court correctly granted summary judgment. Therefore, we recite the trial court’s findings verbatim and hereby adopt them as our own.

        Thus, the undisputed facts establish that [GWR] knew long before October 24, 2005, that the overhead electrical lines existed and would have to be removed at its expense. …. Thus, even viewing the evidence in a light most favorable to [GWR], the Court finds that [GWR] should reasonably have discovered the facts giving rise to this lawsuit prior to October 24, 2005. Accordingly, the statute of limitations expired prior to the filing of the Complaint, and Defendants are entitled to judgment as a matter of law.

 

Gardiner Park Development v. Matherly Land Surveying, Inc., No. 2003-CA-002017-MR (KY 4/29/2005) (KY, 2005)

 As noted above, the trial court found that KRS 413.245 was the correct statute of limitations, thus, all claims against MLS, Matherly, and Comer were barred. In its opinion the circuit court declined to address whether land surveying services qualified as professional services under KRS 413.245. Instead it found that because engineers are considered to be professionals under the statute and Comer was indisputably an engineer, KRS 413.245 applied.

 
 

 Matherly Land Surveying v. Gardiner Park, 230 S.W.3d 586 (Ky., 2007)

In March 2003, MLS filed a motion to dismiss, for a declaration of rights, and for summary judgment. MLS argued in these motions that the one year statute of limitations for professional services under KRS 413.245 applied to all claims made by Gardiner. WHF filed a cross motion for summary judgment arguing that Gardiner’s claims were actually for breach of contract and hence the fifteen year statute of limitations provided for in KRS 413.090 was applicable. WHF further argued that land surveyors were not professionals under KRS 413.245, and that even if KRS 413.245 was applicable, the suit was not time barred because the alleged damages were not "fixed and nonspeculative."

        The record appears undisputed that MLS, a professional engineering company, was performing engineering services while undertaking the Gardiner Park project, and that such services were supervised and controlled by Comer, a licensed engineer employed by MLS. Furthermore, it appears that, as a result of the alleged failure by Comer, as supervising engineer, to timely complete [230 S.W.3d 589] certain aspects of the project, the alleged breach on the part of MLS occurred. As such, it appears that the one-year statute of limitations under KRS 413.245, is applicable.  

Old Mason’s Home of Kentucky, Inc. v. Mitchell, 892 S.W.2d 304 (Ky. App., 1995)

 In our opinion, the trial court properly concluded the statute-of-limitations provisions of KRS 413.245 governed this action. At all times relevant herein, Mitchell was providing architectural services, albeit pursuant to a contract, for Mason. KRS 413.243 defines "professional services" to mean "… [a]ny service rendered in a profession required to be licensed, administered and regulated as professions in the Commonwealth of Kentucky,…." By law, architects are required to be licensed in this Commonwealth. *****  Mitchell was a registered licensed architect who owned and operated his own business. **** Mitchell is certainly a professional and it is not disputed that he was performing duties consistent with his profession. We conclude the services he rendered and Mason’s cause of action against him fall within the purview of the statute. 

 

 Plaza Bottle Shop, Inc. v. Al Torstrick Ins. Agency, Inc., 712 S.W.2d 349 (Ky. App., 1986)

 Summary judgment was granted, as stated hereinbefore, on the ground that the action was barred by the provisions of KRS 413.245. Clearly, the appellant’s cause of action began to run in November of 1980 when it was informed there was no liquor liability coverage, not when the insurer declared or when it was determined it had no duty to defend or, as appellant urges, not when the judgments were rendered in the wrongful death actions. Thus, the trial court’s judgment would be sound if KRS 413.245 were applicable; however, we do not believe it is and we reverse.

 

Schultz v. Cooper Builder, Inc., 134 S.W.3d 618 (Ky. App., 2003)

The discovery rule contained in KRS 413.245 is a clearly worded default rule governing the date upon which a period of limitations begins. The parties in this case made a deliberate election to replace that date with a date certain for the accrual of any action. Neither the courts nor the legislature have found such private deviations from the statute to be unconscionable or violative of public policy. On the contrary, the courts have specifically sanctioned the validity of such provisions as part and parcel of the freedom of parties to fashion their own agreements. Mitchell is the controlling authority, and we do not find any justification or compelling circumstances in this case to depart from its holding.

        For the foregoing reasons, we conclude that the trial court did not err in dismissing Schultz’s complaint against Weber. Accordingly, the judgment of the Jefferson Circuit Court is affirmed. 

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KRS 413.246 Action for damages based on professional services rendered by licensed home inspector.

(1) An action for damages, whether brought in contract or tort, or on any other basis, based on professional services that were rendered or that should have been rendered by a licensed home inspector under KRS 198B.700 to 198B.738 shall not be brought, commenced, or maintained unless the action is filed within one (1) year of the time that the claimant knew or should have known of a deficient inspection and damages and injuries resulting therefrom.

(2) Nothing in this section creates any duty to a third party that is not available under common law.

Effective: July 15, 2008   History: Repealed, reenacted, and amended 2008 Ky. Acts ch. 100, sec. 10, effective July 15, 2008. — Created 2004 Ky. Acts ch. 109, sec. 18, effective July 13, 2004.  Formerly codified as KRS 198B.734

 

NO ANNOTATION FOR THIS STATUTE 

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KRS 413.247 Definitions.

As used in KRS 413.248, unless the context otherwise requires:

(1) "Apparently wholesome food" means food that meets all standards of quality established by local, county, state, and federal agricultural and health laws and regulations, even though the food is not readily marketable due to appearance, age, freshness, grade, size, surplus, or other condition, but does not include canned goods that are leaking, swollen, dented on a seam, or no longer airtight.

(2) "Nonprofit organization" means an incorporated or unincorporated organization that has been established and is operating for religious, charitable, or educational purposes and that does not distribute any of its income to its members, directors, or officers.

(3) "Intentional misconduct" means conduct that the person acting knows is harmful to the health or well-being of another person.

(4) "Donate" means to give without requiring anything of monetary value from the donee.

(5) "Person" means an individual, corporation, partnership, organization, or association.

Effective: April 2, 1982  History: Created 1982 Ky. Acts ch. 304, sec. 1, effective April 2, 1982.

 

NO ANNOTATION FOR THIS STATUTE   

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KRS 413.248 Liability of donor for damages resulting from condition of donated food.

(1) A person, including an individual, corporation, partnership, organization, association, or retail food establishment, who donates apparently wholesome food to a nonprofit organization for distribution to the needy is not subject to civil or criminal liability that arises from the condition of the food, unless an injury or death results from an act or omission of the donor which constitutes gross negligence, recklessness, or intentional misconduct.

(2) A nonprofit organization that distributes apparently wholesome food to the needy at no charge and that substantially complies with applicable local, county, state, and federal laws and regulations regarding the storage and handling of food for distribution to the public is not subject to civil or criminal liability that arises from the condition of the food, unless an injury or death results from an act or omission of the organization that constitutes gross negligence, recklessness, or intentional misconduct.

(3) This section does not create any liability.

Effective: July 12, 2006  History: Amended 2006 Ky. Acts ch. 64, sec. 3, effective July 12, 2006. — Created 1982 Ky. Acts ch. 304, sec. 2, effective April 2, 1982.

 

NO ANNOTATION FOR THIS STATUTE

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KRS 413.249 Action relating to childhood sexual abuse or childhood sexual assault.

(1) As used in this section:

(a) "Childhood sexual assault" means an act or series of acts against a person less than eighteen (18) years old and which meets the criteria defining a felony in KRS 510.040, 510.050, 510.060, 510.070, 510.080, 510.090, 510.110, 529.100 where the offense involves commercial sexual activity, 529.110 where the offense involves commercial sexual activity, 530.020, 530.064, 531.310, or 531.320. No prior criminal prosecution or conviction of the civil defendant for the act or series of acts shall be required to bring a civil action for redress of childhood sexual assault;

(b) "Childhood sexual abuse" means an act or series of acts against a person less than eighteen (18) years old and which meets the criteria defining a misdemeanor in KRS 510.120, KRS 510.130, KRS 510.140, or KRS 510.150. No prior criminal prosecution or conviction of the civil defendant for the act or series of acts shall be required to bring a civil action for redress of childhood sexual abuse;

(c) "Child" means a person less than eighteen (18) years old; and

(d) "Injury or illness" means either a physical or psychological injury or illness.

(2) A civil action for recovery of damages for injury or illness suffered as a result of childhood sexual abuse or childhood sexual assault shall be brought before whichever of the following periods last expires:

(a) Within five (5) years of the commission of the act or the last of a series of acts by the same perpetrator;

(b) Within five (5) years of the date the victim knew, or should have known, of the act; or

(c) Within five (5) years after the victim attains the age of eighteen (18) years.

(3) If a complaint is filed alleging that an act of childhood sexual assault or childhood sexual abuse occurred more than five (5) years prior to the date that the action is commenced, the complaint shall be accompanied by a motion to seal the record and the complaint shall immediately be sealed by the clerk of the court. The complaint shall remain sealed until:

(a) The court rules upon the motion to seal;

(b) Any motion to dismiss under CR 12.02 is ruled upon, and if the complaint is dismissed, the complaint and any related papers or pleadings shall remain sealed unless opened by a higher court; or

(c) The defendant files an answer and a motion to seal the record upon grounds that a valid factual defense exists, to be raised in a motion for summary judgment pursuant to CR 56. The record shall remain sealed by the clerk until the court rules upon the defendant’s motion to close the record. If the court grants the motion to close, the record shall remain sealed until the defendant’s motion for summary judgment is granted. The complaint, motions, and other related papers or pleadings shall remain sealed unless opened by a higher court.

Effective: June 25, 2013

History: Amended 2013 Ky. Acts ch. 25, sec. 20, effective June 25, 2013. — Amended 2007 Ky. Acts ch. 19, sec. 9, effective June 26, 2007. — Created 1998 Ky. Acts ch. 577, sec. 1, effective July 15, 1998.

 
ANNOTATIONS:
 

Kincaid v. Kincaid (Ky. App., 2011)September 2, 2011 – 2009-CA-002202

Fn 4. Our discussion does not apply to cases that the legislature has designated as confidential. See KRS 625.045 provides that voluntary termination of parental rights cases shall be confidential; KRS 199.570(1)(a) provides that adoption proceedings shall be confidential; KRS 610.320(3) provides that juvenile records must be confidential; and KRS 413.249(3) provides that certain childhood sexual assault or abuse cases shall be kept confidential.

 

Knaus v. Great Crossings Baptist Church, Inc., No. 2009-CA-000141-MR (Ky. App. 2/12/2010) (Ky. App., 2010)

 The trial court agreed with the Knauses that KRS 413.140(1)(a) was the applicable statute of limitations. It held that KRS 413.249(2) was inapplicable, (although entitled "Action relating to childhood sexual abuse or childhood sexual assault") because the statute contains no indication that it is applicable to third parties (such as a church employer).

        We agree with the trial court that the action herein is based upon personal injury, and thus, is subject to the one-year limitations period under KRS 413.140(1)(a). Roman Catholic Diocese of Covington v. Secter, 966 S.W.2d 286 (Ky. App. 1998). We likewise find KRS 413.249(2) to be inapplicable, as our Courts have previously held that this statute does not apply to claims against third parties, but only to the perpetrator him or herself. Roman Catholic Bishop of Louisville v. Burden, 168 S.W.3d 414, 418 (Ky. App. 2004). As far more than one year has elapsed since the occurrence of the acts giving rise to the Knauses’ claims, we must address the running and tolling of the statute.   

 

Roman Catholic Bishop of Louis. v. Burden, 168 S.W.3d 414 (KY, 2005)

     In its brief, the Archdiocese raises two issues as to why it was entitled to a summary judgment. First, the Archdiocese argues that the tolling provisions of KRS 413.190 do not apply to KRS 413.249, and second, that even if KRS 413.140 were to apply, the one-year limitations period began to run in 1988 and thus Burden’s claim was time barred.

        Because we have determined that the Opinion and Order denying the motion for summary judgment is interlocutory and non-appealable at this time, we must dismiss the appeal. However, this does not mean that that circuit court’s ruling regarding the applicable statute of limitations cannot be appealed once a final judgment has been entered, as that is a question of law.

 

McGinnis v. Roman Catholic Diocese of Covington (Ky. App., 2003)

  A civil action for damages suffered as a result of child sexual abuse or assault shall be brought before the expiration of the latest time periods specified in KRS 413.249(2):

(a) Within five (5) years of the commission of the act or the last of a series of acts by the same perpetrator;

(b) Within five (5) years of the date the victim knew, or should have known, of the act; or

(c) Within five (5) years after the victim attains the age of eighteen (18) years.

        McGinnis filed his action well beyond the time periods specified. The last act of alleged abuse occurred in 1984, and the complaint was not filed until 2002. At the time McGinnis filed his action he knew, or should have known, of the abuse as evidenced by his 1993 letters sent to Bishop Williams and the hiring of counsel. Finally, McGinnis turned eighteen in 1987, again beyond the time provision in KRS 413.249(2)(c).

     The trial court correctly ruled that McGinnis’s claim is barred by the statute of limitations.

  SCHRODER, JUDGE, DISSENTING.

        There are issues of fact regarding tolling. I would reverse and remand to at least allow discovery into the appellees’ knowledge of prior abuse, or the potential for such by this particular priest, and the concealment, if any.

 

Roman Cath. Diocese of Lexington v. Noble, 92 S.W.3d 724 (Ky., 2002)

       Concurrent with filing the amended complaint, the plaintiffs filed a motion to seal the entire court record pursuant to KRS 413.249(3). This motion required the clerk of the court to seal the entire record until the trial court ruled on the motion to seal. The Dioceses responded to the amended complaint by moving to strike certain allegations contained in the amended pleading. Additionally, the Dioceses moved that any allegations struck from the amended complaint be permanently sealed independent of the plaintiffs’ motion to seal the record under KRS 413.249. Before the trial court could rule on the motion to seal or the motion to strike, the Lexington Herald-Leader moved to intervene in order to contest the plaintiffs’ motion to seal the record. In the motion to intervene, the Herald-Leader alleged, inter alia, that KRS 413.249 was unconstitutional.

VIII. Conclusion

      The trial court erred in concluding that it did not have the discretion to seal the stricken allegations in question or to physically remove the material from the record.

       The Court of Appeals erred in making an initial determination that sealing the stricken allegations would have been an abuse of discretion. Therefore, we reverse the Court of Appeals and remand this case to the Fayette Circuit Court to reconsider–consistent with this opinion–the Dioceses’ motion to seal the stricken allegations or to remove them from the record. Further, we order that the stricken allegations–including any repetition of those allegations in the Court of Appeals’ record or in this Court’s record–remain sealed until the Fayette Circuit Court rules. Finally, we hereby dissolve our order of August 26, 2002, granting the Diocese intermediate relief.   

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PROVISIONS FOR APPLICATION OF LIMITATIONS

 

KRS 413.250 When action commences.

An 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.

Effective: October 1, 1942  History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2524.   

ANNOTATIONS:
 

Hausman’s Adm’R v. Poehlman, 314 Ky. 453 (KY, 1951)

    Assuming the appellee to be correct in asserting that the original service did not give the court jurisdiction over the appellee, we do not think this to be the determining point in the case. KRS 413.250 provides: "An 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."

     In the present case the facts fail to show that the first summons was not issued in good faith in spite of the fact that by exercising greater diligence than was exercised the correct address of the appellee could have been discovered. The appellant sought the appellee’s address from an official agency which in the normal course of events should have had the correct address. The summons was issued and immediately placed in the process of execution with an apparent intention to have it served and notice given to the appellee in due course.

        The judgment is reversed for proceedings consistent with this opinion.

 

Nanny v. Smith, 2006-SC-000833-DG (Ky. 8/21/2008) (Ky., 2008)

     KRS 413.250 provides that "[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."

       Nanny complied with the spirit of the law and should not be punished for the clerk’s failure to promptly perform official duties mandated by statute and court rule. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.   

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KRS 413.260 Effect of injunction or other restraint on limitation.

(1) If the doing of an act necessary to save any right or benefit is restrained or suspended by injunction or other lawful restraint, vacancy in office, absence of an officer or his refusal to act, the time covered by the injunction, restraint, vacancy, absence or refusal to act shall not be counted in the application of any statute of limitations.

(2) When the collection of a judgment or the commencement of an action is stayed by injunction, the time of continuance of the injunction shall not be counted as part of the period limited for the collection of the judgment or the commencement of the action.

Effective: October 1, 1942  History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. secs. 2535, 2544.   

 
ANNOTATIONS:
 

Rogers v. Palm Beach Company, Inc. (Ky., 2003)

  KRS 413.260 provides:

        If the doing of an act necessary to save any right or benefit is restrained or suspended by injunction or other lawful restraint, . . . the time covered by the injunction, restraint, . . . shall not be counted in the application of any statute of limitations.

     The claimant cites no bad faith or fraud on the part of her employer. The employer gave notice of the bankruptcy and a stay to the claimant. It was the duty of claimant to find out and pursue her claim, because it is the law that the worker’s compensation claims may be litigated at the same time as bankruptcy proceedings.

        Therefore, the opinion of the Court of Appeals is affirmed.

 

Fannin v. Lewis, 254 S.W.2d 479 (Ky., 1952)

  Finally, it is insisted that the facts in this case bring appellee within the provisions of KRS 413.260(1), which provides:****

   We do not think the words ‘restrained or suspended’, as used in the statute, should be given the broad meaning which was ascribed to them in this case. Statutes of limitation are denominated as statutes of repose and rest upon a sound public policy tending to the peace and welfare of society. ***** Their provisions should not be lightly evaded. We do not think the facts shown in this case amount to a restraint or suspension of appellee’s right to file this suit within the statutory period.

        The lower court should have sustained appellant’s plea of limitations and dismissed the petition.  

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KRS 413.265 Validity of agreements extending limitations periods.

Written agreements entered into in good faith and at arms length to extend limitations periods for the filing of civil actions, including agreements entered into prior to July 15, 1988, shall be valid and enforceable according to their terms.

Effective: July 15, 1988  History: Created 1988 Ky. Acts ch. 268, sec. 1, effective July 15, 1988.

 

NO ANNOTATION FOR THIS STATUTE

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KRS 413.270 Effect of judgment of no jurisdiction — Application to administrative agencies.

(1) If an action is commenced in due time and in good faith in any court of this state and the defendants or any of them make defense, and it is adjudged that the court has no jurisdiction of the action, the plaintiff or his representative may, within ninety (90) days from the time of that judgment, commence a new action in the proper court. The time between the commencement of the first and last action shall not be counted in applying any statute of limitation.

(2) As used in this section, "court" means all courts, commissions, and boards which are judicial or quasi-judicial tribunals authorized by the Constitution or statutes of the Commonwealth of Kentucky or of the United States of America.

History: Amended 1958 Ky. Acts ch. 54, sec. 1. — Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2545.

 
ANNOTATIONS:
 

Coghill v. Commonwealth ex rel. Ky. Unemployment Ins. Comm’n (Ky. App., 2013) 2012-CA-000428-MR   June 14, 2013

Doris Coghill appeals the order of the Perry Circuit Court dismissing her complaint seeking judicial review of the determination of the Kentucky Unemployment Insurance Commission (KUIC) which affirmed the ALJ’s denial of unemployment insurance benefits. We affirm.

On May 4, 2011, Coghill filed a second and nearly identical complaint in the Perry Circuit Court again seeking judicial review of the KUIC’s October 26, 2010 denial of unemployment insurance benefits (2011-CI-00218). Coghill claimed that, despite the requirement in KRS 341.450 that a verified complaint for judicial review be filed within twenty (20) days after the date of the KUIC’s decision, her appeal was nevertheless timely pursuant to the "savings statute" found in KRS 413.270. Coghill also argued that KUIC should not be permitted to participate in any argument regarding dismissal of the action. The circuit court again dismissed Coghill’s complaint and rejected her argument regarding KUIC’s participation in the matter. Coghill now appeals.

 

Nelson County Bd. of Educ. v. Forte, 337 S.W.3d 617, 267 Ed. Law Rep. 387 (Ky., 2011)

An argument can be made that the Board of Claims, having been given exclusive and primary jurisdiction over such actors when they are acting in a discretionary manner, should have preferred jurisdiction to say whether it has jurisdiction or not. But this negates the fact that Section 112(5) of the Kentucky Constitution provides that “the Circuit Court shall have original jurisdiction of all justiciable causes not vested in some other court.” (Emphasis added.) As this Court held in Yanero, “[t]he Board of Claims … is not a court, for purposes of this section of the constitution,” id. although in some instances it is defined by a statute as a court in relation to the statute, see KRS 413.270.

Consequently, if a governmental agency is acting in a proprietary manner, or an official or public employee is acting negligently in the performance of a ministerial duty, then the action against such parties must commence in circuit court. On the other hand, arguably if a litigant believed the actions complained of were unquestionably governmental and discretionary, then the action could commence in the Board of Claims, because there would not be a justiciable question for a circuit court. But the litigant could find the Board in disagreement with his assessment of the claim, and still have to seek recourse in circuit court. And the Board of Claims would have taken initial jurisdiction to determine the nature of the claim, which it would never have had, if it found the actions were not governmental.

In no case should the claim be filed in both, as it was here. This creates a redundancy, and wastes valuable judicial resources, not to mention complicating timing and procedural matters.

Thus, the soundest course is to commence the action in circuit court. A court’s authority to determine its jurisdiction is grounded directly in the constitution, rather than statute. And while the constitution does give the legislature the right to determine when and how the Commonwealth may be sued, it cannot act in derogation of other constitutional grants of authority. Settling jurisdictional questions in the circuit court first complies with the constitutional mandate, and the purpose of the Board of Claims Act to address only those claims that are otherwise barred by immunity.

And this is where KRS 413.270 has the most direct applicability. KRS 413.270(1) provides that if an action is commenced in due time and good faith in any court of this state, and the court determines it does not have jurisdiction, then the plaintiff has 90 days to commence a new action in the proper court. KRS 413.270(2) specifically provides that as used in this statute, “court” means “boards which are judicial or quasi-judicial tribunals authorized by the … statutes of the Commonwealth of Kentucky.” Unlike in Section 112(5) which allows justiciable causes to be brought only in the courts, this statute clearly allows the Board of Claims to be accessed after an action is dismissed in the circuit court for lack of jurisdiction. And while it may be argued that this would apply to the circuit court if the Board of Claims determined it did not have jurisdiction, it cannot be said that the Board of Claims was ever a proper forum in the first instance for claims of proprietary or negligent ministerial actions. By beginning such claims in the circuit court rather than in the Board of Claims, there is no risk that the Board of Claims will exercise jurisdiction it does not have.

Thus the action filed in the Board of Claims in this case was a “nullity,” as described in Yanero. Since these questions had been raised in the circuit court, the filing in the Board was premature. Until the circuit court determined whether the acts at issue were proprietary or governmental, the Board was not free to assume jurisdiction. The Board, rather than deciding the question of the timeliness of the action, should have dismissed it for lack of jurisdiction, or at least held it in abeyance until the resolution of the circuit court action. This disposition is sound, because it avoids the possibility of conflicting determinations between the Board of Claims and the circuit court, and a possible “race” to see which entity will rule first. This also avoids the problem of a circuit court declining to follow a Board of Claims decision until it makes its own ruling on the immunity question, which it is required to do.

Consequently, the Court of Appeals did not err when it dismissed this “appeal,” because the Nelson County Board of Education was an indispensable party in this case. Mr. Forte’s notice of appeal was jurisdictionally defective.

 

Travis v. Admin. Office of the Courts (Ky. App., 2011) – September 23, 2011- 2010-CA-001165

Fn 2. Although Travis’s arguments appear identical to those brought by Judge Nance, this Court will refrain from adjudicating the effect of the Supreme Court’s ruling in Nance upon the merits of Travis’s action. As this opinion indicates, such a task is reserved solely for the Supreme Court. Further, because Travis’s action is subject to potential restoration after the rendering of this opinion, she suffers no prejudice by our failure to address the merits of her action. See KRS 413.270; see also Cherry v. Augustus, 245 S.W.3d 766, 775 (Ky. App. 2006) (holding that the 90-day period under the savings statute begins to run upon the final appellate ruling that determines the disputed issue of jurisdiction).

 

St. Luke Hosp., Inc. v. Straub, 354 S.W.3d 529 (Ky., 2011) – Oct. 27, 2011

 
Source: Justia

Shannon Straub was arrested by a police officer, who took her to a hospital emergency department for examination. After Straub became combative, hospital personnel physically restrained Straub, gowned her, applied restraints, drew blood, and extracted a urine sample. After suing unsuccessfully in federal court, Straub brought an action in the state trial court against Defendants, the emergency room doctor, the hospital, its employees, the police officer, and the city. In her complaint, Straub alleged that Defendants violated her rights under the Kentucky Constitution and asserted various common law tort claims. The trial court dismissed before trial Straub’s claims that the hospital defendants deprived Straub of her due process interests under the Kentucky Constitution. After a trial, a jury returned a verdict for all Defendants. The court of appeals reversed. At issue on appeal was whether an individual can bring a civil action for money damages under Ky. Rev. Stat. 446.070 on the basis of an alleged violation of a provision of the Kentucky Constitution. The Supreme Court reversed and reinstated the trial court’s judgment, holding that section 446.070 does not provide money damages for alleged violations of the state Constitution.

 

In light of our decision that KRS 446.070 does not create a private cause of action for alleged violations of the state constitution and our decision to reinstate the judgment of the trial court, we do not need to reach a decision as to: (1) whether a one year statute of limitations bars claims not raised in federal court, (2) whether Straub filed her state court action prematurely under KRS 413.270, and (3) whether a punitive damages instruction was permissible.

III. CONCLUSION.

For the foregoing reasons, we reverse the decision of the Court of Appeals and reinstate the judgment of the trial court.

 

Burger v. Western Kentucky Navigation, Inc., No. 2009-CA-001249-MR (Ky. App. 6/11/2010) (Ky. App., 2010)

      David and Earline Burger appeal from an order entered by the Livingston Circuit Court dismissing their personal injury claim against Western Kentucky Navigation, Inc. (WKN) on the grounds that it was barred by res judicata. The Burgers argue that, rather than res judicata, the previous case was dismissed because of lack of jurisdiction and to quash service of process. Further, they maintain that the trial court erred by failing to apply the provisions of KRS 413.270 so as to determine that the statute of limitations was tolled and the action timely filed. WKN counters that the Illinois court dismissed the case on the merits and, therefore, the court did not err when it dismissed the Burgers’ case on the basis of the doctrine of res judicata. We concur with the trial court that KRS 413.270 is inapplicable; however, because the Illinois court’s order dismissing WKN was unclear as to whether the dismissal was based on a lack of jurisdiction or for failure to state a claim, res judicata will not act as a bar to the Burgers’ case. Accordingly, we reverse and remand to the trial court.

    The Burgers argue on appeal that the case was only dismissed in Illinois for lack of jurisdiction and that, under KRS 413.270, the Livingston Circuit Court has jurisdiction and the case should not have been dismissed. And, as the case was dismissed in Illinois on jurisdictional and procedural grounds, res judicata is not pertinent because the case was not dismissed on the merits. WKN contends both that KRS 413.270 is not applicable to the Burgers’ case and also that the case should be dismissed on grounds of res judicata.

    It is our conclusion that the Livingston Circuit Court carefully examined the pleadings and the pertinent law but erred in dismissing the Burgers’ case under CR 12.02(f). Therefore, for the foregoing reasons, the judgment of the Livingston Circuit Court is reversed, and this matter is remanded for further proceedings consistent with this opinion.

 

Nelson County Board of Education v. Forte, No. 2008-CA-001958-MR (Ky. App. 10/9/2009) (Ky. App., 2009)

    Under KRS 413.270(1), an action that is timely filed in good faith but later dismissed for lack of jurisdiction may be refiled in the proper court within ninety days. KRS 413.270(2) defines "court" as including all "boards" exercising judicial or quasi-judicial authority as authorized by this Commonwealth’s statutory law.

        Here, it is axiomatic that the Board of Claims qualifies as a "board" within the meaning of KRS 413.270(2). The Board of Claims was created by legislative enactment and certainly exercises judicial or quasi-judicial authority. Thus, we hold that the term "court" as used in KRS 413.270(1) is broad enough to include the Board of Claims. Concomitantly, we also conclude that the tolling provision of KRS 413.270(1) is applicable to an action filed in the Board of Claims.

        In the case sub judice, a dismissal of the tort action by the Nelson Circuit Court upon immunity grounds may certainly be tantamount to a dismissal for lack of jurisdiction under KRS 413.270, thus arguably triggering the tolling provision of KRS 413.270(1). However, the Board of Claims’ dismissal of the instant action with prejudice would potentially bar appellees from later refiling an action in the Board of Claims under the tolling provision of KRS 413.270(1).  As such, the circuit court was understandably troubled by the Board of Claims’ dismissal of appellees’ action. We, thus, do not believe the circuit court erred by vacating and remanding to the Board of Claims. Upon remand to the Board of Claims, we think the Board of Claims should reconsider its dismissal in light of the tolling provision of KRS 413.270(1).

        We view any remaining issues raised by the Board of Education as either moot or without merit.

 

Commonwealth v. Douglas, No. 2007-CA-000647-MR (Ky. App. 7/18/2008) (Ky. App., 2008)

   We disagree, however, that KRS 413.270 was not intended to apply to suits against the Commonwealth. The statute provides for tolling where a court determines that it has no jurisdiction of an action, timely filed in good faith, and allows such action to be transferred to the appropriate court. KRS 413.270(1). Subsection (2) clearly defines courts as "all courts, commissions, and boards which are judicial or quasi-judicial tribunals authorized by the Constitution or statutes of the Commonwealth of Kentucky[.]" The Board of Claims, which functions as a judicial or quasi-judicial body, is clearly encompassed within this definition. Because KRS 44.072 vests "exclusive jurisdiction" to hear claims against the Commonwealth with the Board, the circuit court’s original order dismissing the Estate’s suit against Chandler Medical Center as barred by sovereign immunity amounted to a recognition of lack of jurisdiction. Thus, the dismissal of the Estate’s claim by the circuit court for lack of jurisdiction properly triggered the tolling provisions of KRS 413.270 and allowed the claim to be refiled with the Board of Claims within ninety days.

        Even stronger support for this interpretation of KRS 413.270 may be found in KRS 44.110, which establishes the one-year statute of limitations for filing an action with the Board. KRS 44.110(1). Subsection (5), which deals with claimants who are under legal disability to file suit states in relevant part that, in such cases,  a guardian or next friend or committee or other qualified representative shall bring such action in the Board of Claims on behalf of such person within the same time limitation set forth herein or the claim is barred, notwithstanding KRS 413.170 and 413.280.

        KRS 44.110(5) (emphasis supplied). Clearly, the General Assembly chose to limit the tolling provisions of KRS 413 as they applied to a person under a legal disability. No such language was added to KRS 44.110 to exempt it from the tolling provision in KRS 413.270. "[W]e are required to give the words of the statute written by the legislature their plain meaning. To do so restricts us from adding restrictive language . . . where it does not now exist." Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky. 1984). KRS 413.270(1) specifically states that the tolling provision applies to actions commenced in "any court of this state" and we are forbidden to carve out exceptions from the plain meaning of these words.

        Chandler Medical Center next contends that, even if KRS 413.270 applied to actions against the Commonwealth, the Estate failed to prove compliance with the requirement that its timely filing in the wrong court was done in good faith. KRS 413.270(1). Application of the principle of sovereign immunity to our state universities as departments or agencies of the Commonwealth has been recognized for at least a quarter of a century. Rooks v. University of Louisville, 574 S.W.2d 923, 925 (Ky.App. 1978). Thus, Chandler Medical Center claims the Estate could not have believed in good faith that it could pursue a cause of action against the University of Kentucky, or the medical center which it operates, except by filing a claim with the Board of Claims under KRS 44.072. However, shortly thereafter, the issue of sovereign immunity was clouded by actions of the General Assembly, such as setting up a medical malpractice insurance fund for the University of Kentucky. Dunlap v. University of Kentucky Student Health Services Clinic, 716 S.W.2d 219 (Ky. 1986). In Dunlap, the Kentucky Supreme Court found that the existence of the medical malpractice insurance fund evinced a legislative intent to create a partial waiver of sovereign immunity, allowing a student who suffered an injury after being vaccinated for the flu, to pursue a negligence claim against the university’s medical center in Fayette Circuit Court. Dunlap, 716 S.W.2d at 222. More recently, the Kentucky Supreme Court recognized that "the decisions of Kentucky appellate courts have not at all times been entirely consistent as to which entities are entitled to immunity derived from Section 231 of the Constitution of Kentucky[.]" Withers v. University of Kentucky, 939 S.W.2d 340, 344 (Ky. 1997). A year after the Estate filed suit in the Fayette Circuit Court, the Withers decision acknowledged that defining the extent of sovereign immunity had caused the Court to struggle for decades. Given the difficulty which this issue has presented to the highest court in our Commonwealth, we are unwilling to accept Chandler Medical Center’s argument that the Estate could not have been acting in good faith when it timely filed the original action in the Fayette Circuit Court.

        For the foregoing reasons, the order of the Fayette Circuit Court affirming the Board of Claims is affirmed.

 

Straub v. St. Luke Hospital, Inc., No. 2007-CA-000443-MR (Ky. App. 12/19/2008) (Ky. App., 2008)

  In a cross-appeal, the appellees first assert that all claims against security guards Harris and Pretot and against nurse Fey should have been summarily dismissed from the circuit court action on the basis of the one year statute of limitations under KRS 413.140. Second, they argue that Straub’s claims of assault and battery should have been summarily dismissed under KRS 413.140. Third, appellees assert that the Campbell Circuit Court action was not properly filed within the ninety-day window provided by KRS 413.270. Finally, appellees argue that the trial court erroneously gave a jury instruction on punitive damages.

        Upon a thorough review of the record in this matter, we affirm in part, reverse in part, and remand this matter back to the trial court for additional proceedings not inconsistent with this opinion.

    We agree that both KRS 413.270 and the case law cited preserve a Plaintiff’s cause of action when the conditions are met. However, neither the cited law, nor any law of which we are aware, supports such an argument as it relates to non-defendants. We hold that if Straub wished to join any of these three defendants to this action, she should have done so within one year from the time she became aware that a cause of action existed. Instead, Straub fully litigated this matter in federal court while declining to join these defendants, despite the passage of several years time, and despite being fully aware of their involvement in the events at issue.

        While KRS 413.270 would preserve Straub’s right to bring the action in state court against the defendants following the conclusion of her federal action, it does not entitle her to add an entirely new group of defendants of whom she was already aware and against whom she previously declined to file an action. Had Straub wished to join Harris, Pretot, and Fey to an action, she should have done so within one year from the date of discovery of their involvement in the events at issue. Underhill v. Stephenson, 756 S.W.2d 459 (Ky. 1988).

 

Smith v. Dollar General Stores, Ltd., No. 2003-CA-002632-MR (KY 10/7/2005) (KY, 2005)

       Having concluded that KRS 413.270(1) applies to a dismissal upon improper venue, we now turn to appellee’s alternative argument that a dismissal upon forum non conveniens is separate and distinct from a dismissal for improper venue; therefore, KRS 413.270(1) should be narrowly interpreted as applying to only a dismissal for improper venue and not to a dismissal based upon forum non conveniens.

        As to the proper application of KRS 413.270(1), we view any distinction between a dismissal upon improper venue and a dismissal upon forum non conveniens to be merely illusory. We arrive at this conclusion by reliance upon Seymour Charter Buslines, Inc. v. Hopper, 111 S.W.3d 387 (Ky. 2003). In that case, the Supreme Court commented that the term "improper venue," as utilized in KRS 452.105, encompassed a dismissal upon forum non conveniens.

 Accordingly, we hold that KRS 413.270(1) is applicable to a dismissal based upon forum non conveniens and conclude that KRS 413.270(1) applies to the instant action.3 Thus, the circuit court erred by dismissing the instant action as time-barred by KRS 413.140.

        For the foregoing reasons, the order of the Casey Circuit Court is reversed and this cause remanded for proceedings not inconsistent with this Opinion.

 

Dollar General Stores, Ltd. v. Smith, 237 S.W.3d 162 (Ky., 2007)

    We begin with a brief review of KRS 413.270, a statute providing for a ninety-day saving period where claims are brought in a court having no jurisdiction. By its terms, the statute applies to claims brought "in due time and in good faith" and which are adjudged to have been brought in a court with "no jurisdiction." While the statutory language speaks to jurisdiction, this Court has long held that dismissal for improper venue also triggers the saving statute.

      We have considered Dollar General’s argument that KRS 413.270 should be read literally and its contention that P. & J. Leasing and Shircliff are distinguishable, but we do not agree. There is no reasonable explanation for the Legislature to have acted to save claims brought in an improper jurisdiction, but denied the saving provision to claims brought in an improper venue. As such, we can only conclude with the Shircliff court that the General Assembly used the term "jurisdiction" broadly to include the concept of place as well as the concept of power.6 Accordingly, we reaffirm the views expressed in D. & J. Leasing and Shircliff.7

       The doctrine of forum non conveniens is not deeply embedded in Kentucky law. It has been touched upon from time to time through the years, but has rarely appeared as an issue on appeal. However, the doctrine of forum non conveniens was thoroughly considered in Beaven v. McAnulty, where this Court granted a writ of prohibition holding that the trial court acted beyond its jurisdiction in transferring a civil action from the Jefferson Circuit Court to the Marion Circuit Court on grounds of forum non conveniens. Beaven concluded with the view that "Kentucky’s doctrine of forum non conveniens only empowers a trial court to dismiss or stay an action before it. As the trial court did not have the power to transfer the action to Marion County, it was acting beyond its jurisdiction when it did so, and a writ of prohibition is an appropriate remedy."

          While there are fundamental distinctions between the concepts of jurisdiction and venue, the former relating to the power of courts to adjudicate and the latter relating to the proper place for the claim to be heard, there is no such fundamental distinction between venue and forum non conveniens. In general, venue derives from a statutory mandate as to which county or counties is the proper place for a claim to be heard. Forum non conveniens presupposes proper venue, but posits that another county where venue would be proper also is a more convenient forum, and calls for a discretionary ruling by a trial court to that effect. Thus forum non conveniens is a subdivision of venue requiring the exercise of trial court discretion. Surely it must follow that a dismissal on grounds of forum non conveniens would be, of necessity, a venue based dismissal resulting in applicability of the saving statute, KRS 413.270. Notwithstanding language in Beaven to the contrary, in the future, cases should not be dismissed on grounds of forum non conveniens.

      With enactment of KRS 452.105, the General Assembly made it clear that venue should be transferred in a proper case, and that the action should not be dismissed. We now hold that the same rule applies where the trial court determines that another forum would be a more convenient place for the litigation. The General Assembly showed no concern for the idea in Beaven that one court could not force a case upon another court. Undoubtedly, this view is correct. Kentucky has one unified Court of Justice. All trial courts and appellate courts are a part of that Court of Justice, and in it is vested the judicial power of the Commonwealth.

        For the foregoing reasons, we affirm the Court of Appeals and remand this case to the Casey Circuit Court for further consistent proceedings.

 

Commonwealth v. Douglas, No. 2007-CA-000647-MR (Ky. App. 7/18/2008) (Ky. App., 2008)

    We disagree, however, that KRS 413.270 was not intended to apply to suits against the Commonwealth. The statute provides for tolling where a court determines that it has no jurisdiction of an action, timely filed in good faith, and allows such action to be transferred to the appropriate court. KRS 413.270(1). Subsection (2) clearly defines courts as "all courts, commissions, and boards which are judicial or quasi-judicial tribunals authorized by the Constitution or statutes of the Commonwealth of Kentucky [.]" The Board of Claims, which functions as a judicial or quasi-judicial body, is clearly encompassed within this definition. Because KRS 44.072 vests "exclusive jurisdiction" to hear claims against the Commonwealth with the Board, the circuit court’s original order dismissing the Estate’s suit against Chandler Medical Center as barred by sovereign immunity amounted to a recognition of lack of jurisdiction. Thus, the dismissal of the Estate’s claim by the circuit court for lack of jurisdiction properly triggered the tolling provisions of KRS 413.270 and allowed the claim to be refiled with the Board of Claims within ninety days.

          Even stronger support for this interpretation of KRS 413.270 may be found in KRS 44.110, which establishes the one-year statute of limitations for filing an action with the Board. KRS 44.110(1). Subsection (5), which deals with claimants who are under legal disability to file suit states in relevant part that, in such cases, a guardian or next friend or committee or other qualified representative shall bring such action in the Board of Claims on behalf of such person within the same time limitation set forth herein or the claim is barred, notwithstanding KRS 413.170 and 413.280.

        KRS 44.110(5) (emphasis supplied). Clearly, the General Assembly chose to limit the tolling provisions of KRS 413 as they applied to a person under a legal disability. No such language was added to KRS 44.110 to exempt it from the tolling provision in KRS 413.270. "[W]e are required to give the words of the statute written by the legislature their plain meaning. To do so restricts us from adding restrictive language . . . where it does not now exist.

     Chandler Medical Center next contends that, even if KRS 413.270 applied to actions against the Commonwealth, the Estate failed to prove compliance with the requirement that its timely filing in the wrong court was done in good faith. KRS 413.270(1).    Application of the principle of sovereign immunity to our state universities as departments or agencies of the Commonwealth has been recognized for at least a quarter of a century. Rooks v. University of Louisville, 574 S.W.2d 923, 925 (Ky.App. 1978). Thus, Chandler Medical Center claims the Estate could not have believed in good faith that it could pursue a cause of action against the University of Kentucky, or the medical center which it operates, except by filing a claim with the Board of Claims under KRS 44.072. However, shortly thereafter, the issue of sovereign immunity was clouded by actions of the General Assembly, such as setting up a medical malpractice insurance fund for the University of Kentucky. **** In Dunlap, the Kentucky Supreme Court found that the existence of the medical malpractice insurance fund evinced a legislative intent to create a partial waiver of sovereign immunity, allowing a student who suffered an injury after being vaccinated for the flu, to pursue a negligence claim against the university’s medical center in Fayette Circuit Court. Dunlap, 716 S.W.2d at 222. More recently, the Kentucky Supreme Court recognized that "the decisions of Kentucky appellate courts have not at all times been entirely consistent as to which entities are entitled to immunity derived from Section 231 of the Constitution of Kentucky[.]" Withers v. University of Kentucky, 939 S.W.2d 340, 344 (Ky. 1997). A year after the Estate filed suit in the Fayette Circuit Court, the Withers decision acknowledged that defining the extent of sovereign immunity had caused the Court to struggle for decades. Given the difficulty which this issue has presented to the highest court in our Commonwealth, we are unwilling to accept Chandler Medical Center’s argument that the Estate could not have been acting in good faith when it timely filed the original action in the Fayette Circuit Court.

        For the foregoing reasons, the order of the Fayette Circuit Court affirming the Board of Claims is affirmed.

 

Straub v. St. Luke Hospital, Inc., No. 2007-CA-000443-MR (Ky. App. 12/19/2008) (Ky. App., 2008)

**** appellees assert that Straub’s claims under the Kentucky Constitution are barred by the applicable statute of limitations, because Straub never made such claims in the federal action. We disagree. Each of the claims asserted by Straub under the Kentucky Constitution carries a one-year statute of limitations. Million v. Raymer, 139 S.W.3d 914 (Ky. 2004). However, as previously stated herein, Straub filed her state complaint within thirty days of the dismissal of her federal complaint. Thus, pursuant to KRS 413.270, the limitations period for her state law claims did not expire between the filing of the two complaints. The statute of limitations with respect to her state law claims was tolled during the pendency of her federal action and subsequent federal appeal. Finally, as noted herein, any new claims or amendments would relate back to the original complaint in this action, as they are based entirely on the same transaction or occurrence set forth in the original complaint. See KRCP 15.03.

 

Blair v. Peabody Coal Co., 909 S.W.2d 337 (Ky. App., 1995)

    Kentucky’s highest court applied KRS 413.270 when holding that the applicable statute of limitations did not bar the refiling of a state court action within three months of a federal appellate decision which affirmed the judgment of the District Court for the Eastern District of Kentucky that it lacked jurisdiction over the action. Our court specifically determined that for purposes of KRS 413.270, "a Federal court in this state is a ‘court of this state.’ " (Emphasis added.) Id. at 387. See also Ex parte Schollenberger, 96 U.S. 369, 24 L.Ed. 853 (1877); Merko v. Sturm & Dillard Co., 233 F. 68 (6th Cir.1916), cert. denied, 242 U.S. 630, 37 S.Ct. 14, 61 L.Ed. 536 (1916). However, we have found no Kentucky case which specifically addresses the issue of whether a federal court located outside of Kentucky constitutes a court "of" this state for purposes of KRS 413.270. Andrew v. Bendix Corporation, 452 F.2d 961 (6th Cir.1971), cert. denied, 406 U.S. 920, 92 S.Ct. 1773, 32 L.Ed.2d 119 (1972). (Ohio savings statute had no application where the previous action was dismissed in the District of Columbia.)

As noted by appellee, however, appellant’s example is not analogous to the situation before us since the KRS 413.270(1) reference to "any court of this state" pertains only to the place in which an action is commenced, rather than to the location of the court to which an appeal might be taken.

        The court’s order is affirmed.

 

D. & J. Leasing, Inc. v. Hercules Galion Products, Inc., 429 S.W.2d 854 (Ky., 1968)

 In the truest sense, D. & J.’s dismissal of its action in the McCracken Circuit Court was anything but voluntary; it had to get out of that court in order to get into the right one, and promptly did so thereafter. We do not find it necessary to decide whether the six months saving-period of the Code or the ninety-day period of KRS 413.270 governs, because D. & J.’s filing in the Jefferson Circuit Court was in time under either.

        The judgment is reversed.

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KRS 413.280 Person under more than one disability.

When two (2) or more disabilities exist in the same person at the time the cause of action accrues, the limitation does not attach until they are all removed.

Effective: October 1, 1942  History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2538.

 

NO ANNOTATION FOR THIS STATUTE

 

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KRS 413.290 Limitations only to residents — Notice.

Limitations shall not begin to run in favor of persons coming temporarily into this state, but shall attach only in favor of actual residents in good faith, and after notice to the person to be affected thereby.

Effective: October 1, 1942 History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2533.

 
ANNOTATIONS:
 

Rockwood v. Huey, 348 S.W.2d 915 (Ky., 1961)

   The question involved in this case is whether KRS 413.290 suspends the running of the 1-year statute of limitations (KRS 413.140) as to defendants who were nonresidents of Kentucky at the time the cause of action arose. The trial court ruled that it does not, and we concur.

 

Boughton v. Shoulders, 116 F.Supp. 391 (W.D. Ky., 1953)

     It is contended that the one year statute of limitation does not apply because of the provisions of KRS 413.290. This section reads as follows:

        "Limitations shall not begin to run in favor of persons coming temporarily into this state, but shall attach only in favor of actual residents in good faith, and after notice to the person to be affected thereby."

        This section has no application to the facts in the case at bar. The plaintiff is not the debtor. The only purpose of the statute is to protect a creditor against the action of a resident debtor who leaves the state and remains away from the state temporarily for the purpose of giving the statute time to run. That is, "* * * that when a cause of action accrues against a resident of this state, and he, by departing therefrom, obstructs the prosecution of the action, the time of the continuance of his absence from the state shall not be computed as any part of the period within which the action may be commenced.

 

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KRS 413.300 Plaintiff a citizen of enemy country.

If the plaintiff is an alien and a subject or citizen of a country at war with the United States, the time of the continuance of the war shall not be counted as part of the period limited for the commencement of an action.

Effective: October 1, 1942  History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2534.

 

NO ANNOTATION FOR THIS STATUTE

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KRS 413.320 Cause of action barred here if barred where it accrued.

When a cause of action has arisen in another state or country, and by the laws of this state or country where the cause of action accrued the time for the commencement of an action thereon is limited to a shorter period of time than the period of limitation prescribed by the laws of this state for a like cause of action, then said action shall be barred in this state at the expiration of said shorter period.

History: Amended 1942 Ky. Acts ch. 206, secs. 1 and 2. — Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2542.

 
ANNOTATIONS:
 

Abel v. Austin, No. 2009-CA-000465-MR (Ky. App. 5/28/2010) (Ky. App., 2010)

        Thus, because the statute of limitations begins to run for one year on either the date of occurrence or the date of discovery, Kentucky’s statute of limitations is actually longer than Alabama’s statute of limitations. Alabama’s "discovery" provision is only six months and subject to a four-year cap, while Kentucky’s discovery provision is one year and subject to no cap. Consequently, pursuant to KRS 413.320, since Alabama’s statute of limitations is shorter than Kentucky’s statute, it should be used as the measuring criterion for the two Alabama appellees.

      In fact, the accrual rule is relatively simple: "[A] cause of action is deemed to accrue in Kentucky where negligence and damages have both occurred. . . . [T]he use of the word `occurrence’ in KRS 413.245 indicates a legislative policy that there should be some definable, readily ascertainable event which triggers the statute." Michels v. Sklavos, 869 S.W.2d 728, 730 (Ky. 1994)(quoting Northwestern Nat. Ins. Co. v. Osborne, 610 F.Supp. 126, 128 (D. C. Ky. 1985)) (alterations in original). But, even though the action may have accrued in Kentucky, nothing mitigates against a determination that the action also accrued in Alabama. Beasley Allen’s and Langston’s actions, including the disposition of the settlement funds, only occurred in Alabama. Therefore, we are not persuaded by appellants’ line of reasoning with regard to the "accrual" issue. The pertinent events related to the Alabama attorneys were processed, settled, reviewed, and confirmed by an Alabama court. Similarly, Beasley Allen and Langston never met with any of the appellants because they sent the settlement funds from Alabama to Kentucky via Austin for distribution.

      Clearly, KRS 413.120 is inapplicable unless appellees’ actions were intentional given that fraud must be intentional. Next, we observe that KRS 413.120(12) specifically refers to fraud and mistake, not misrepresentation as averred by the appellants in their complaint. In the case at hand, appellants are alleging that the appellee attorneys committed certain misrepresentations relating to the communication between them and their clients. This type of misrepresentation is different from fraud.

     In addition, the plain language of KRS 413.245 says that it applies to "a civil action, whether brought in tort or contract, arising out of any act or omission in rendering, or failing to render, professional services for others[.]" And the language expressly preempts "any other prescribed limitation of actions which might otherwise appear applicable[.]" See KRS 413.245. Notably, the language of the statute also encompasses any action for perceived fraud between an attorney and client. Thus, the trial court correctly interpreted the appellants’ misrepresentation count as a claim, which is based on the rendering of professional services and, thus, falls under the limitations statute KRS 413.245. To conclude, we hold that appellants’ claims of misrepresentation are under the limitations purview of KRS 413.245 because this statute applies to civil actions, whether in tort or contract, that arise out of the rendering of professional services.

CONCLUSION

        Based on the foregoing, the judgment of the Fayette Circuit Court is affirmed.

 

Koeppe v. Great Atlantic & Pacific Tea Co., 250 F.2d 270 (C.A.6 (Ky.), 1957)

 In holding that the statute of limitations of New Jersey controlled, Judge Brooks, in his opinion, commented upon all of the Kentucky statutory provisions heretofore discussed in the instant case, and he considered KRS 413.320, both before and after its amendment in 1942, as did the Court of Appeals of Kentucky in the Ley case. He pointed out that the Kentucky cases, subsequent to Labatt v. Smith & Whitney, 4 Ky.Law Rep. 422, had departed from the rule announced in that case; and he emphasized that in spite of all the observations which were indulged in in the Ley case, to the effect that the law of the forum governed in the application of statutes of limitations, nevertheless, the decision in that case was based upon a construction of KRS 413.090– the statute of limitations on judgments– and not upon a construction of KRS 413.320 governing actions other than upon judgments, which was therein involved– the action being one for personal injuries, as is the instant case. Remarking that although he might be satisfied that the Court of Appeals of Kentucky, if called upon the construe KRS 413.320, would, in the future, hold that the lex fori would control in such a case, the court concluded that it could not anticipate such a ruling; that it was bound by the construction presently placed upon the statute; and that the rule that the statute of limitations in the state where the action accrued would apply, even though the action would be barred under the Kentucky statute, was still controlling.

  In conclusion, it is to be emphasized that John Shillito Co. v. Richardson, 102 Ky. 51, 42 S.W. 847, and Smith v. Baltimore & Ohio R. Co., 157 Ky. 113, 162 S.W. 564, laid down the rule that, under KRS 413.320, where a cause of action has arisen in another state or country between residents of such state or country, or between them and residents of another state or country, the statute of limitations where the action accrued is to be applied, even though the action would be barred under the Kentucky statute of limitations. The subsequent amendment of the statute, in our opinion, did not affect the rule theretofore announced; and no Kentucky decision has held that it did.

        The above mentioned rule remains unchanged by any subsequent adjudication of the Court of Appeals of Kentucky.

        The plaintiff-appellant in this case was, at the time her cause of action accrued, a resident of New York. The cause of action accrued in New York.

        Under the cases last above cited, the statute of limitations of the State of New York applies, even though the action would be barred under the Kentucky statute of limitations.

 

Albanese v. Ohio River-Frankfort Cooperage Corp., 125 F.Supp. 333 (W.D. Ky., 1954)

       Plaintiff, Albert Albanese, a resident of New Jersey, brought this action against the defendant, Ohio River-Frankfort Cooperage Corporation, a Kentucky corporation, for recovery of damages for personal injuries arising out of an accident which occurred in the State of New Jersey on March 14, 1952.

      The issue to be decided here is whether effect should be given to the statute of New Jersey where the action accrued or to the statute of Kentucky where this action was instituted. This requires consideration of both Section 2542, Carroll’s Kentucky Statutes, 1936 Edition and its amendment and reenactment in 1942 as KRS 413.320.

    The motion to dismiss is overruled and the plaintiff will prepare an appropriate order.

 

Ellis v. Anderson, 901 S.W.2d 46 (Ky. App., 1995)

   Ellis first asserts that KRS 413.320 is unconstitutional because it violates his fundamental right to interstate travel by limiting his right to sue in Kentucky upon causes of action which arise in other states while traveling there. KRS 413.320 is known in jurisprudence as a "borrowing statute" because it "borrows" the limitation period of another state where a cause of action accrues when that period is shorter than Kentucky’s to bar the action from being brought in Kentucky. "The effect of the statute is that the foreign statute of limitations shall prevail only when the time provided thereby is shorter than the period provided by the Kentucky statute of limitations."

        Based upon the well-established authority of the United States Supreme Court’s opinion in Bendix which found ORC 2305.15(A) to be an unconstitutional burden upon interstate commerce as applied to out-of-state corporate defendants and the subsequent application of the Bendix decision by Ohio federal and state courts in Tesar and Gray to out-of-state individual defendants, we hold that ORC 2305.15(A) did not toll the two-year limitation period imposed by ORC 2305.10 and borrowed by Kentucky under KRS 413.230 within which Ellis was required to sue upon his cause of action for bodily injury.

   As a result, we further hold that the Kenton Circuit Court properly granted summary judgment to Anderson based upon the issues raised herein. Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991). Accordingly, the judgment of the Kenton Circuit Court is affirmed.

        All concur.

 

Stivers v. Ellington, No. 2003-CA-001291-MR (KY 7/16/2004) (KY, 2004)

      Under the above statute, the Kentucky statute of limitations is controlling, unless the limitation period is shorter in the state where the action arose. Seat v. Eastern Greyhound Lines, Ky. 389 S.W.2d 908 (1965). Therefore, we must initially determine the applicable statute of limitations in Colorado and in Kentucky. After such determination is made, KRS 413.320 mandates that the shorter statute of limitations is to be applied.******

        The parties agree the applicable Colorado statute of limitations is two years and is found in Colo. Rev. Stat. §13-80-102(1)(a). There is, however, disagreement concerning the applicable Kentucky statute of limitations.

Accordingly, we are of the opinion the applicable limitation period is one year as enunciated in KRS 413.140. As the Kentucky statute of limitations period of one year is shorter than the Colorado limitations period of two years, KRS 413.320 mandates that the Kentucky statute of limitations applies. We, thus, conclude appellants were time barred from filing their complaint in the Fayette Circuit Court.

        For the foregoing reasons, the order of the Fayette Circuit Court is affirmed.

 

Seat v. Eastern Greyhound Lines, Inc., 389 S.W.2d 908 (Ky., 1965)

       In this case KRS 413.320 does not apply. The Illinois statute provides for a two year period. In Kentucky the limit is one year. Applying the law of the forum, the action was brought too late and was properly dismissed.

        The judgment is affirmed.

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KRS 413.330 Action on judgment barred here if barred where rendered — Exception.

If, by the laws of any other state or country, an action upon a judgment or decree rendered in that state or country cannot be maintained there by reason of the lapse of time, and the judgment or decree is incapable of being otherwise enforced there, an action upon it may not be maintained in this state, except in favor of a resident thereof who has had the cause of action from the time it accrued.

Effective: October 1, 1942   History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2541.

 
ANNOTATIONS:
 

Ley v. Simmons, 249 S.W.2d 808 (Ky., 1952)

     This is an action to enforce a judgment obtained in Florida in 1930. The defendant pleaded the statute of limitations. The applicable Florida statute is 20 years. Florida Statutes 95.11(1), F.S.A.  The statute of limitations in Kentucky is 15 years. KRS 413.090(1). Under the Kentucky statute the action is barred. Under the Florida statute it is not.

The lower court applied the Kentucky statute and dismissed the petition.

We conclude that in an action brought in this state to enforce a judgment of a court of another state whose statute of limitations is for a longer period than ours, the statute of limitations of this state should govern. This is in accord with the great weight of authority, and we think the rule is sound. The trial court having so decided, the judgment is affirmed.

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KRS 413.340 Exceptions as to chapter.

The provisions of this chapter shall not apply to an express trust that is both continuing and subsisting, nor to an action by a vendee of real property in possession to obtain a conveyance. For purposes of this subsection, a subsisting trust is an express trust with respect to which the trustee is acting within its powers and with respect to which no beneficiary has a cause of action against the trustee.

Effective: July 15, 1998  History: Amended 1998 Ky. Acts ch. 196, sec. 26, effective July 15, 1998. — Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2543.

 
ANNOTATIONS:
 

First Kentucky Trust Co. v. Christian, 849 S.W.2d 534 (Ky., 1993)

    Insofar as it applies to trusts, KRS 413.340 has little if any significance. It says and means merely that limitations will not run until there is a cause of action. A "subsisting trust" against which limitations do not run is neither more nor less than a trust in which the trustee is acting within his powers and the cestui que trust has no cause of action against him.

      K.R.S. 413.340 does provide "The provisions of this chapter shall not apply to a continuing and subsisting trust, nor to an action by a vendee of real property in possession to obtain a conveyance." Therefore, it is the holding of this Court that an action against a trustee for breach of fiduciary duty where the trust is continuing and subsisting and no repudiation has occurred may be brought any time during the existence of the trust pursuant to K.R.S. 413.340 and K.R.S. 386.735.

      The argument by the trust company that the 15-year statute of limitations for breach of a written contract applies here is unconvincing. Certainly an express trust was created by contract, but we believe in this case the proper cause of action for breach of a fiduciary duty is controlling as an equitable rather than a technically legal action.

        The decision of the Court of Appeals is affirmed and this matter is remanded to the circuit court for trial on the merits.   

Redding v. Main, 303 Ky. 41 (KY, 1946)

It is argued by counsel for appellee that this case falls within the saving provisions of KRS 413.340, which reads:

        "The provisions of this chapter shall not apply to a continuing and subsisting trust, nor to an action by a vendee of real property in possession to obtain a conveyance."

The action was commenced more than five years after the execution of the deed, and the plaintiffs sought to avoid the effect of the limitation statutes by invoking section 2543 of the Kentucky Statutes, now KRS 413.340. They contended that the power and authority vested in the executor to sell the land constituted a continuing and subsisting trust as contemplated by the statute. Their contention was rejected, and the court, in its opinion, quoted with approval the following from Robinson’s Committee v. Elam’s Executor, 90 Ky. 300, 14 S.W. 84:

        "The trusts intended to be embraced by the statute, and to be excepted out of the limitation, are those of an exclusively equitable character, where the trustee has a right to hold the estate, and the cestui que trust has no right to sue for it."

 It follows from what has been said that the trial court erred in holding that the statute of limitations did not apply, and in overruling the defendant’s motion for judgment on the pleadings.

        The motion for an appeal is sustained, the appeal granted, and the judgment reversed for proceedings consistent herewith.

 

Potter v. Connecticut Mut. Life Ins. Co., 361 S.W.2d 515 (Ky., 1962)

 This case involves the running of limitations, despite the alleged saving effect of KRS 413.340, when a trustee purports to hold under a trust arrangement inconsistent with the right of immediate and exclusive possession theretofore vested in some of the beneficiaries of the purported trust.

 Insofar as it applies to trusts, KRS 413.340 has little if any significance. It says and means merely that limitations will not run until there is a cause of action. A ‘subsisting trust’ against which limitations do not run is neither more nor less than a trust  in which the trustee is acting within his powers and the cestui que trust has no cause of action against him.

    Where, however, the latter has a right of action, and forbears to exercise it, the letter of our statute, as well as the policy of our law, gives the opposing party the right to rely upon the lapse of time.’ Robinson’s Committee v. Elam’s Ex’x, 1890, 90 Ky. 300, 14 S.W. 84. Since KRS 413.120 defines the period of limitation by reference to the accrual of the cause of action, KRS 413.340 merely gilds the lily.

       Granted, then, for the sake of argument that the will of Charles Potter created a trust, the trouble with the position of the appellants here is that the trust that was subsisting, and which operated to obstruct their right of immediate possession upon Ruth Potter’s death, was not the same trust created by the will. That trust had come to an end with the death of Ruth Potter. All agree that if Mutual had withheld the corpus under a claim of right in itself, the statute would have run. We see no difference in that the claim was made in behalf of beneficiaries whose color of title did not derive from the will. Their claim, asserted by the trustee, was just as inimical to and inconsistent with the fee simple title and immediate possessory rights of Josephine and Richard as a claim by the trustee in its own right would have been.

        We hold, therefore, that the cause of action of the remaindermen to recover possession of the estates vested in them by the will of Charles Potter accrued upon the death of Ruth Potter, the life tenant, and is barred by the statute of limitations. 

Smith v. King (Ky. App., 2003)

The trial court found that KRS 413.340 created an exception to the fifteen-year statute of limitation contained in KRS 413.010 and 413.090. KRS 413.340 provides that the statute of limitations does not apply to "an action by a vendee of real estate in possession to obtain a conveyance."5 In response, Smith contends that KRS 413.340 does not apply because King is not a vendee of real property. But as noted above, the trial court found otherwise, and that finding was supported by substantial evidence. Furthermore, there is no question that King has been continually in possession of the property. Accordingly, the trial court correctly held that King’s claim was not barred by the statute of limitations.

 

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