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

• Decision Date: 25 June 2004
• Docket Number: No. 2003-CA-001555-MR.
• Parties: MICHAEL L. DIGIURO, ADMINISTRATOR OF THE ESTATE OF TRENT DIGIURO, Appellant v. SHANE RAGLAND, Appellee.
• Court: United States State Supreme Court (Kentucky)

Page 1

MICHAEL L. DIGIURO, ADMINISTRATOR OF THE ESTATE OF TRENT DIGIURO, Appellant v. SHANE RAGLAND, Appellee.

No. 2003-CA-001555-MR.

Court of Appeals of Kentucky.

June 25, 2004.

Appeal from Fayette Circuit Court, Honorable Laurance B. Vanmeter, Judge, Action No. 02-CI-02669.

F. Thomas Conway, Nicole H. Pang, Louisville, Kentucky, Brief for Appellant.

J. Guthrie True, Johnson, Judy, True & Guarnieri, LLP, Frankfort, Kentucky, Brief for Appellee.

Before: BUCKINGHAM, DYCHE, and TAYLOR, Judges.

OPINION

DYCHE, Judge.

In this matter, we are asked to review summary judgment entered on behalf of appellee, Shane Ragland, by the Fayette Circuit Court. We reverse.

Trent DiGiuro, a student at the University of Kentucky, was killed by a single gunshot wound on July 17, 1994, while sitting on his front porch during a party celebrating his twenty-first birthday. His murder went unsolved for many years. However, in January of 2000, Shane Ragland was identified by his ex-girlfriend as Trent's killer. According to the affidavit of Detective Don Evans, Shane murdered Trent because Trent had prevented Shane from becoming a member of a campus fraternity.

Shane was arrested for Trent's murder on July 14, 2000. A preliminary hearing was held on July 19, 2000; the trial court found probable cause to believe that Shane had committed the crime. Shane was thereafter indicted on August 29, 2000, by a grand jury of the Fayette Circuit Court. On March 27, 2002, a jury found him guilty of Trent's murder, and he was sentenced to thirty years in prison.

Trent's father, Michael L. DiGiuro, was appointed Administrator of Trent's estate on April 24, 2001, and he filed the instant action for wrongful death on July 1, 2002.¹ Initially, the case was assigned to Circuit Court Judge Gary Payne, who, without comment, denied a motion to dismiss the case as being time-barred. This matter was then transferred to Judge VanMeter, who determined on summary judgment that the wrongful death action was indeed time-barred.

The trial court's rationale was that Trent's estate should have:

discovered "not only that [Trent] has been injured but also that his injury may have been caused by the defendant's conduct," and based on the fact that after the arrest, preliminary hearing and indictment, the defendant was no longer concealed or obstructing prosecution of a wrongful death action, this Court is unable to escape the conclusion that the plaintiff knew or should have known no later than July 19, 2000, the date of the preliminary hearing in Fayette District Court, not only that he had been injured, but that his injury may been have caused by the defendant's conduct. The case law is clear that certainty is not required, and the presence or absence of a criminal proceeding or conviction of the defendant has no bearing on the running of the statute of limitations for a civil action based on the same facts and circumstances.

(T.R. p. 254)(emphasis in original).

Mr. DiGiuro has appealed this ruling, arguing that this action should not be barred as untimely and that the time for bringing it should have been tolled until Shane was convicted. We are faced with a difficult issue borne from an unsettling factual background.

"At common law, when the tortfeasor killed, rather than seriously injured his victim, he was immune from civil action. Wrongful death statutes were therefore adopted to reverse this result." Conner v. George W. Whitesides Co., Ky., 834 S.W.2d 652, 655 (1992) (Stephens, C.J., dissenting). Kentucky has had several versions of wrongful death statutes, some of which have included time limitations. The present version of Kentucky's wrongful death statute does not, however. It states as follows:

Whenever the death of a person results from an injury inflicted by the negligence or wrongful act of another, damages may be recovered for the death from the person who caused it, or whose agent or servant caused it. If the act was willful or the negligence gross, punitive damages may be recovered. The action shall be prosecuted by the personal representative of the deceased.

KRS 411.130(1).

Kentucky courts have routinely applied a one-year statute of limitations period to wrongful death cases using the general limitation period in KRS 413.140. Conner, 834 S.W.2d at 654. The Court in Conner cited Carden v. Louisville & N.R. Co., 101 Ky. 113, 39 S.W. 1027 (1897), for this holding. However, in the Carden case, the relevant statute at that time, the Death Act, included an express one-year statute of limitations, whereas the current statute does not. See Nichols v. Chesapeake & O. Ry. Co., 195 F. 913, 917 (6^th Cir. 1912).

KRS 413.140 reads as follows:

(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 . . . .

Clearly, however, KRS 413.140 on its face does not include wrongful deaths. Nonetheless, the Supreme Court of Kentucky has held that "[d]eath is simply the final injury to a person." Conner, 834 S.W.2d at 654.

KRS 413.180 provides the time limitations for a personal representative of the deceased to bring a cause of action. This statute provides in relevant part that:

(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.

This statute on its face limits its scope to actions "mentioned" in KRS 413.090 to 413.160, which does not include the wrongful death statute. Nonetheless, the Court in Conner, 834 S.W.2d at 653-54, held that, although the wrongful death statute was not explicitly included in KRS 413.180, wrongful death actions fall under its umbrella because KRS 413.140 has long been recognized as establishing a one-year limitation for wrongful death actions, and it is specifically included in KRS 413.180.

Having reviewed the relevant statutes at issue, our attention now turns to statutory construction factors and the purpose of statutes of limitations. "Although the previous rule in Kentucky was that statutes of limitations should be strictly construed, Newby's Adm'r v. Warren's Adm'r, 277 Ky. 338, 126 S.W.2d 436 at 437 (1939), KRS 446.080 provides that `[a]ll statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature . . . .'" Plaza Bottle Shop, Inc. v. Al Torstrick Ins. Agency, Inc., Ky. App., 712 S.W.2d 349, 351 (1986). Nonetheless, statutes of limitations should not be "lightly evaded" either. Munday v. Mayfair Diagnostic Lab., Ky., 831 S.W.2d 912, 914 (1992) (citing Fannin v. Lewis, Ky., 254 S.W.2d 479, 481 (1952)).

"`The cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature.'" Travelers Indemnity Co. v. Reker, Ky., 100 S.W.3d 756, 763 (2003) (quoting Kentucky Ins. Guar. Ass'n v. Jeffers, Ky., 13 S.W.3d 606, 610 (2000)). We "must consider `the intended purpose of the statute — the reason and spirit of the statute — and the mischief intended to be remedied.'" Commonwealth v. Kash, Ky. App., 967 S.W.2d 37, 43-44 (1997) (quoting City of Louisville v. Helman, Ky., 253 S.W.2d 598, 600 (1952)). "The Kentucky General Assembly and [the Supreme] Court [of Kentucky] have long recognized the value of statutes which `bar stale claims arising out of transactions or occurrences which took place in the distant past.'" Munday, supra at 914 (citing Armstrong v. Logsdon, Ky., 469 S.W.2d 342, 343 (1971)).

The Supreme Court of the United States has stated that "`[s]tatutes of limitation find their justification in necessity and convenience rather than in logic. . . . They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost.'" Mills v. Habluetzel, 456 U.S. 91, 102 (1982) (quoting Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314 (1945)).

There can be no doubt that statutes of limitations can be arbitrary and sometimes operate to halt legitimate claims. See Simmons v. South Central Skyworker's, Inc., 936 F.2d 268, 270 (1991) (citing Schiavone v. Fortune, 477 U.S. 21, 31 (1986)). However, to prevent such a harsh application, both the courts and the legislature have carved out exceptions to this rule. We quote from Munday, 831 S.W.2d at 914-915 on this as follows:

Parties are at liberty to contract for a limitation period less than the period fixed by statute. Johnson v. Calvert Fire Ins. Co., 298 Ky. 669, 183 S.W.2d 941 (1945). Likewise, after a cause of action has accrued, parties may, by agreement, extend the time for filing the action beyond the time in which the limitation would otherwise run. Bankokentucky Co.'s Receiver v. National Bank of Kentucky's Receiver, 281 Ky. 784, 137 S.W.2d 357, 369 (1939). An estoppel may arise to prevent a party from relying on a statute of limitation by virtue of a false representation or fraudulent concealment. Cuppy v. General Accident Fire and Life Assurance Corp., Ky., 378 S.W.2d 629 (1964). And for persons under a legal disability, the running of the statute of limitations ordinarily does not commence until the disability is removed....