Conner v. George W. Whitesides Co.
| Decision Date | 04 June 1992 |
| Docket Number | No. 90-SC-819-DG,90-SC-819-DG |
| Citation | 834 S.W.2d 652 |
| Parties | Prod.Liab.Rep.(CCH)P. 13,193 Rodney A. CONNER, Jr., Individually and as Executor of the Estate of Peggy J. Conner, Movant, v. GEORGE W. WHITESIDES COMPANY; Henkel Corporation; Celanese Corporation; Ciba-Geigy Corporation; and Allied Chemical Corporation, Respondents. |
| Court | United States State Supreme Court — District of Kentucky |
Robert E. Reeves, Reeves & Graddy, Lexington, for movant.
J. Peter Cassidy, Jr., Stoll, Keenon & Park, Lexington, William D. Grubbs, Peter N. Tassie, Woodward, Hobson & Fulton, Louisville, for respondent, George Whitesides Co.
Lively M. Wilson, Richard G. Griffith, Margaret M. Alfred, Stites & Harbison Lexington, for respondents, Henkel Corp., Celanese Corp., Ciba-Geigy Corp., and Allied Corp.
Movant, Rodney A. Conner, Jr., as Executor of the Estate of Peggy J. Conner, appeals from a partial summary judgment of the Woodford Circuit Court which held that movant's wrongful death claim was barred by the applicable statute of limitations. The trial court denied summary judgment as to a personal injury claim filed by the estate because that action was filed timely under applicable law. Presumably, because of its interlocutory nature, the trial court's decision as to the personal injury claim was not appealed. The Court of Appeals affirmed the trial court's summary judgment as to the wrongful death claim.
This appeal presents two issues to the Court. The first issue is whether KRS 413.180 applies to wrongful death claims. The second issue is whether the discovery rule applies to wrongful death claims. For the reasons stated hereafter, we hold that KRS 413.180 applies to wrongful death claims. Because of our decision on the first issue we need not address the second issue. We reverse the Court of Appeals.
Peggy Conner was an employee of Texas Instruments for many years. During the course of her employment, she was allegedly exposed to chemicals manufactured or supplied by the respondents. The primary contention of appellant's claim is that the exposure to these chemicals resulted in Peggy Conner's death.
Mrs. Conner was diagnosed with cancer on October 23, 1984. She died August 7, 1985. On September 25, 1985, an order was entered by the Woodford District Court probating Mrs. Conner's will and dispensing with administration of her estate since Rodney Conner, Jr., Mrs. Conner's husband, was the sole beneficiary. Mr. Conner was not appointed executor of the estate at that time.
Mr. Conner had suspicions as to the cause of his wife's death and apparently attempted to discover the possible connection between her exposure to chemicals at work and her illness. On July 15, 1986, Mr. Conner retained counsel. Mr. Conner states that the respondents' names were not determined until August 16, 1986. On September 23, 1986, Mr. Conner was appointed executor of Mrs. Conner's estate in an order of the Woodford District Court which purports to be a Nunc Pro Tunc Order relating back to the order entered on September 25, 1985. Also on September 23, 1986, the present suit was filed in the Woodford Circuit Court.
KRS 413.180 provides time limitations for a personal representative of the deceased to bring specified causes of action. In full, the statute provides:
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.
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.
Several older cases and our most recent case, Southeastern Ky. Baptist Hosp. v. Gaylor, Ky., 756 S.W.2d 467 (1988), are in conflict with these prior cases. In Gaylor, this Court quoted Drake v. B.F. Goodrich Co., 782 F.2d 638 (6th Cir.1986), as a "well summarized" statement of the law on the subject. Drake states, in pertinent part:
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.
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.
Mrs. Conner died on August 7, 1985. This is the date when the limitation period of KRS 413.140(1) began. McCollum v. Sisters of Charity of Nazareth Health Corp., Ky., 799 S.W.2d 15 (1990); Farmer's Bank & Trust Co. v. Rice, Ky., 674 S.W.2d 510 (1984). Arguably, Mr. Conner was appointed executor on September 25, 1985, and definitely he was appointed executor on September 25, 1986. The correct date depends on whether a Nunc Pro Tunc Order was permissible in the circumstance of this case. We need not decide this question. KRS 413.180(2) provides that if the personal representative is not appointed within a year after death but is appointed after that time, the one year anniversary of death is considered the date of appointment, and the personal representative has one year from the one year anniversary of death to commence a cause of action. The net effect of this statute in this case is to provide two years from the date of death to appoint a personal representative and commence a cause of action for wrongful death.
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.
The majority opinion, by applying KRS 413.180(2) to the case at bar, overextends previously established authority that grafted wrongful death actions within the purview of time limitations found in KRS 413.180(1).
Confusion over the applicability of time limitations set forth in KRS 413.180(1) and (2), originates in the blurred distinction between the...
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