Gailor v. Alsabi
| Decision Date | 18 February 1999 |
| Docket Number | No. 97-SC-191-DG,97-SC-191-DG |
| Citation | 990 S.W.2d 597 |
| Parties | Allen K. GAILOR, Public Administrator and Personal Representative of the Estate of Fred Whalen, Appellant. v. Hashim M. ALSABI, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
A. Campbell Ewen, David W. Son, Ewen, Bush & Kinney, Louisville, KY, for appellant.
David Bradley Mour, K. Tracy Rigor, Borowitz & Goldsmith, PLC, Louisville, KY, for appellee.
This action arises out of an automobile accident which occurred on June 3, 1991 on Taylor Boulevard in Louisville, Jefferson County, Kentucky. Two vehicles were involved in the accident, one owned and operated by Appellee Hashim M. Alsabi and the other owned and operated by Fred Whalen. Appellee was the named insured of a policy of insurance issued by Kentucky Farm Bureau Mutual Insurance Company, which paid $7,238.90 in basic reparation benefits (BRB) for chiropractic bills incurred by Appellee. It is stipulated that the last BRB payment was made on February 4, 1992. Fred Whalen was the named insured of a policy of liability insurance issued by Allstate Insurance Company.
Whalen died of natural causes at the age of eighty-two on February 5, 1992. His will was admitted to probate by the Jefferson District Court on March 2, 1992. In her petition for probate, Whalen's widow and sole beneficiary requested that she be appointed executrix of his estate. Instead, the district judge admitted the will to probate without appointing a personal representative. The probated will was filed as a public record in the office of the Jefferson County Court Clerk on March 10, 1992.
On February 3, 1994, Appellee filed this action against Fred Whalen and caused summons to issue against him at 2032 Lytle Street, Louisville, Kentucky, the address listed on the accident report. The summons was returned on February 16, 1994 with the notation that Whalen was deceased. Appellee's attorney asserts that he did not learn of Whalen's death until April 6, 1994. He did not move that the public administrator be appointed to administer Whalen's estate pursuant to KRS 395.390 until September 22, 1994. The appointment was made on November 17, 1994. On January 19, 1995, Appellee filed an amended complaint substituting the public administrator as party defendant in place of Whalen.
The trial court granted summary judgment 1 in favor of the administrator on grounds that the action was barred by limitations. The Court of Appeals reversed, holding that CR 15.03(2) permitted the relation back of the amended complaint to the date the original complaint was filed. We granted discretionary review.
As a general rule, a cause of action for personal injuries arising out of an automobile accident must be brought within two years after the date of injury or the last payment of basic reparation benefits. KRS 304.39-230(6). Thus, the period of limitations with respect to this cause of action expired on February 4, 1994, one day after the original complaint was filed. KRS 446.030(1)(a); Derossett v. Burgher, Ky., 555 S.W.2d 579 (1977). Although the action was filed within the period of limitations, the only defendant named in the complaint was deceased. Since the complaint did not name a party defendant over whom the circuit court could acquire jurisdiction, the complaint was a nullity. Ratliff v.. Oney, Ky.App., 735 S.W.2d 338 (1987); Mitchell v. Money, Ky.App., 602 S.W.2d 687 (1980). The amended complaint was filed long after the expiration of the period of limitations.
KRS 396.011 affords no relief in this case. Subsection (1) of that statute requires that a claim against an estate must be presented "within six (6) months after appointment of the personal representative...." Appellee notes that his amended complaint was filed within six months after the appointment of the public administrator. We need not address whether the filing of a complaint satisfies the requirement of a formal presentation of a claim; for KRS 396.011(1) clearly limits its applicability to claims against estates which are "not barred earlier by other statute[s] of limitations." KRS 396.011(2)(b) excludes from the operation of that statute "[t]o the limits of the insurance protection only, any proceeding to establish liability of the decedent or the personal representative for which he is protected by liability insurance." This only means that a claim of tort liability not preserved by a formal presentation of a claim within six months of the appointment of the personal representative is not barred, except to the extent that the claim exceeds the limits of any applicable liability insurance coverage. The purpose of the statute is to protect the personal estate of the decedent, not his insurance company. The statute does not purport to affect any other applicable statute of limitations. Whether Appellee did or did not present a formal claim to the public administrator within six months of his appointment is immaterial, because this claim was barred by KRS 304.39-230(6) nine months before the appointment was made. Nor does KRS 413.180 have any application to this case. That statute pertains only to an action filed by an estate, not an action filed against an estate.
Appellee's primary argument has always been the one which was adopted by the Court of Appeals, i.e., that the amended complaint of January 19, 1995 related back to the date of the filing of the original complaint, February 3, 1994, thus was not barred by limitations. CR 15.03(2) provides as follows:
An amendment changing the party against whom a claim is asserted relates back if the condition of paragraph (1) is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (a) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (b) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. (Emphasis added.)
The period of limitations expired on February 4, 1994. Fred Whalen had been deceased for almost two years when this action was filed. The administrator of his estate did not exist as a legal entity until November 17, 1994, more than nine months after the expiration of the period of limitations.
[T]he relation back rule mandates that the party to be named in an amended pleading knew or should have known about the action brought against him. CR 15.03(2)(b). Actual, formal notice may not be necessary. Cf. Funk v. Wagner Machinery, Inc., Ky.App., 710 S.W.2d 860 (1986). Nevertheless, knowledge of the proceedings against him gained during the statutory period must be attributed to the defendant.
Nolph v. Scott, Ky., 725 S.W.2d 860, 862 (1987).
Although Appellee's attorney filed in the record a copy of a letter he mailed to Allstate enclosing a copy of the complaint, that letter is dated February 4, 1994, the last day of the period of limitations, and presumably did not arrive in Allstate's office on the same day it was mailed. (Unlike other correspondence from Appellee's attorney to Allstate, this letter does not contain the notation that it was sent "VIA TELECOPIER.") Regardless, Allstate was not named as a party defendant in either the complaint or the amended complaint; thus, CR 15.03(2)(b) could not apply to it.
Appellee's reliance on Richardson v. Dodson, Ky., 832 S.W.2d 888 (1992) is misplaced. In that case, the plaintiff sued the proper defendants within the period of limitations. His error was that he brought the action in his own name instead of as administrator of the decedent's estate. He was permitted to amend his complaint to correct the error after the expiration of the period of limitations. The defendants had notice of the institution and nature of the action within the period of limitations. Obviously, they were not prejudiced by the amendment, thus CR 15.03(2) applied. In this case, Appellee did not sue the proper defendant; and the proper defendant (the administrator) could not have had notice within the period of limitations, because he had not yet been appointed.
Appellee suggests that Allstate should be estopped to rely on the issue of limitations, because its claims adjuster, Peggy Smith, failed to inform Appellee's attorney of Fred Whalen's demise. We note at the outset that this issue is not preserved for review. The Court of Appeals decided this case solely on the basis that CR 15.03(2) permitted the relation back of the amended complaint to the date the original complaint was filed. With respect to this issue, the Court of Appeals stated: "It is of no consequence that at the time Alsabi filed the litigation he was not aware of Whalen's death." Slip op., p. 3. Appellant requested review only of the issues of limitations and the effect of CR 15.03(2). Appellee did not file a cross-motion for discretionary review. As was stated in Commonwealth, Transportation Cabinet, Department of Highways v. Taub, Ky., 766 S.W.2d 49 (1988):
We will not address issues raised but not decided by the Court below. It is the rule in this jurisdiction that issues raised on appeal but not decided will be treated as settled against the appellant in that court upon subsequent appeals unless the issue is preserved by cross-motion for discretionary review. CR 76.21(1); Nashville, C. & St.L. Ry. Co. v. Banks, 168 Ky. 579, 182 S.W. 660 (1916); and Eagle Fluorspar Co. v. Larue, 237 Ky. 263, 35 S.W.2d 303 (1931). In this case, counsel for Taub argued that the Secretary of Transportation is without power to certify a road for condemnation which is not in the six-year plan or expressly authorized by the General Assembly. This issue was touched upon by Taub in the Court of Appeals but not commented upon by the Court in its opinion. As such, the issue is deemed to have been decided adversely to Taub...
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