Everley v. Wright

• Decision Date: 22 December 1993
• Docket Number: No. 92-CA-1890-MR,92-CA-1890-MR
• Parties: Rose EVERLEY, Administratrix of the Estate of Harry Everley, Deceased, Appellant, v. Robert WRIGHT, CRNA; Dr. J. Ross; and Ohio County Hospital, Inc., Appellees.
• Court: Kentucky Court of Appeals

Page 95

872 S.W.2d 95

Rose EVERLEY, Administratrix of the Estate of Harry Everley Deceased, Appellant, v. Robert WRIGHT, CRNA; Dr. J. Ross; and Ohio County Hospital, Inc., Appellees.

No. 92-CA-1890-MR.

Court of Appeals of Kentucky.

Dec. 22, 1993 Discretionary Review Denied by Supreme Court April 13, 1994.

Larry W. Cook, Russellville, for appellant.

Byron L. Hobgood, Patricia G. Creager, Franklin, Gordon & Hobgood, Madisonville, for Robert Wright.

Scott P. Whonsetler, Jacobson, Maynard, Tuschman & Kalur, Louisville, for Dr. Ross.

Stephen B. Lee, Ronald G. Sheffer, Paul Marcum Willis, Sheffer, Hoffman, Thomason & Morton, Owensboro, for Ohio Co. Hosp.

Before EMBERTON, HOWERTON and JOHNSTONE, JJ.

OPINION

HOWERTON, Judge.

Rose Everley's wrongful death suit was dismissed by the Ohio Circuit Court on the basis that, at the time of trial, Mrs. Everley had never been appointed the personal representative of her husband's estate and thus she could not properly bring the action. No personal representative having been appointed before the statute of limitations had run on the claim, the suit was time-barred. Reviewing the law, we reluctantly affirm.

Harry Everley was admitted to the Ohio County Hospital for surgery to take place on January 28, 1989. Within two hours after surgery, he suffered a cardiac arrest and died in his hospital room. The clock for any malpractice claim began ticking.

An order dispensing with administration of his estate was filed with the Ohio District Court on May 30, 1989. On January 17, 1990, Rose Everley brought this suit, alleging negligence on the part of the surgeon, the anesthetist, and the hospital. She sought damages for wrongful death and loss of consortium. At trial, her claim for loss of consortium was dismissed because her husband had died only two hours after the surgery, and a claim for loss of consortium is recoverable only from the period of time between the injury and the death or recovery. Loew v. Allen, Ky., 419 S.W.2d 734 (1967); 2 J. Merritt, Ky. Practice Sec. 1397 (1984).

The case proceeded to trial on June 30, 1992. On July 1, at the close of Mrs. Everley's evidence, the appellees made a motion for a directed verdict because there was no proof in the record that Mrs. Everley had ever qualified as personal representative of her husband's estate. When this allegation was verified by reference to the probate record, the trial court orally granted the motion and the jury was discharged. Mrs. Everley then obtained a nunc pro tunc order on July 7, 1992, setting aside the order of May 30, 1989, dispensing with administration of the estate, and appointing Mrs. Everley as executrix of her deceased husband's estate. This order purported to relate the appointment back to May 30, 1989. Then her counsel filed a motion to alter, amend, or vacate the order of dismissal. On July 16, 1992, the trial court entered its written directed verdict in which it stated, "The record of this action and the evidence showed that this action had not been filed by any Personal Representative within the appropriate Statute of Limitations time period. Therefore, the wrongful death action was lost since it was not asserted within the appropriate period of limitations." On July 24, 1992, Mrs. Everley moved to amend her complaint pursuant to CR 15.01, but no amended complaint appears of record. That same date, the court denied her motion to vacate the directed verdict entered July 16, 1992. Thereafter, she retained new counsel and filed a notice of appeal. An order was entered August 17, 1992, vacating so much of the nunc pro tunc order as appointed her personal representative on May 30, 1989, and instead made the appointment effective July 6, 1992. No appeal was taken from that order. After other post-judgment motions were made pursuant to CR 60.02, and the appeal was abated, the trial court denied all motions. This appeal then proceeded.

The only issue on appeal is whether the entry of a directed verdict was proper. In ruling on a motion for a directed verdict, the trial court is to consider the evidence in the strongest possible light in favor of the party opposing the motion. A directed verdict must not be entered unless there is "a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ." Taylor v. Kennedy, Ky.App., 700 S.W.2d 415, 416 (1985); Mason v. Keltner, Ky.App., 854 S.W.2d 780 (1992). In the present case, it was undisputed that Mrs. Everley had not been appointed administrator at the time of trial.

A case similar to this is Connor v. George W. Whitesides Co., Ky., 834 S.W.2d 652 (1992). Connor held that KRS 413.180 applied to wrongful death suits to save an action filed 13 months after death when the appointment of a representative was accomplished on the same date suit was filed. KRS 413.180 provides (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. (Emphasis added.)

The statute establishing a cause of action for wrongful death, KRS 411.130, is not included or specifically mentioned in KRS 413.090 through KRS 413.160. KRS 413.140 sets forth what actions must be brought within one year. Included are personal injury claims and actions for medical negligence. KRS 413.140(1)(a), (e). KRS 413.140 has been interpreted to supply a limitations period in wrongful death actions since KRS 411.130 does not mention a time period. Carden v. Louisville & N.R.R., 101 Ky. 113, 39 S.W. 1027 (1897). Since KRS 413.140 is within the statutes mentioned in KRS 413.180, our Supreme Court has interpreted the latter to include and apply to wrongful death actions. KRS 413.180 has been further construed to "provide two years from the date of death to appoint a personal representative and commence a cause of action for wrongful death." Connor, 834 S.W.2d at 655.

In Connor, Mrs....