Harris v. Jackson, No. 2004-SC-000121-DG.

• Decision Date: 18 May 2006
• Docket Number: No. 2004-SC-000121-DG.
• Citation: 192 S.W.3d 297
• Parties: Wilford M. HARRIS, Appellant, v. Maria B. JACKSON, Individually and as Parent and Guardian of Chadd Tyrese Malik Devine Jackson, Jr., Appellees.
• Court: Supreme Court of Kentucky

192 S.W.3d 297

Wilford M. HARRIS, Appellant, v. Maria B. JACKSON, Individually and as Parent and Guardian of Chadd Tyrese Malik Devine Jackson, Jr., Appellees.

No. 2004-SC-000121-DG.

Supreme Court of Kentucky.

May 18, 2006.

As Modified May 24, 2006.

W. Jonathan Sweeten, Andrew C. Self, Deatherage, Myers, Self & Lackey, Hopkinsville, Counsel for Appellant.

Walter Gregory Harvey, Norman E. Harned, Harned, Bachert & Denton, LLP, Bowling Green, Steven Craig Girsky, Clarksville, TN, Counsel for Appellee.

Opinion of the Court by Justice SCOTT.

The Appellant, Wilford M. Harris, deceased, moved for discretionary review of a Court of Appeals decision which reversed a Christian Circuit Court order dismissing the Appellee's action against him for failure to properly revive the action against the Appellant's personal representative within one (1) year of the Appellant's death pursuant to KRS 395.278. We granted discretionary review pursuant to RC 76.20(1).

The issue presented is best phrased by Appellant, "[t]he issue to be decided by the Court is whether the attorney for a deceased defendant has a duty to disclose the death of his client to opposing counsel. In deciding this issue, the Court will answer whether Appellant Wilford Harris, deceased, is estopped from obtaining a dismissal of the claim for failure to timely revive a lawsuit within one year from his death because his attorney did not give notice of the death."

FACTS

On June 3, 1999, the Appellant Wilford M. Harris (Harris) and Appellee, Maria B. Jackson (Jackson) were involved in an automobile accident in Christian County, Kentucky, wherein Harris rear-ended Jackson. Jackson was pregnant, full term, at the time of the accident. She thereafter delivered the child, Chadd Jackson, Jr., (Chadd), but alleges he suffered serious and permanent disabling injuries as a result of the trauma from the collision.

On March 23, 2000, Jackson, both individually and as Parent and Guardian of the infant, Chadd, filed this action in the Christian Circuit Court, against Harris, alleging personal injury claims both on behalf of her son and herself. Harris was insured by State Automobile Mutual Insurance Company (State Auto), under liability limits of $100,000.00 per person and $300,000.00 per accident. The defense of the claim was assigned to the Honorable W. Douglas Myers (Myers) of Hopkinsville, Kentucky, while the Appellee's plaintiff claim was handled by the Honorable Blaise E. Ferraraccio (Ferraraccio) and Steven C. Girsky (Girsky), both of Clarksville, Tennessee.

The litigation proceeded as would be expected, until May 25, 2001, with various pleadings and motions having been filed, interrogatories mailed and answered, as well as discovery depositions noticed and taken. Harris however, died on May 25, 2001.

At no time after this date, up until the motion to dismiss for lack of revivor was filed, was the Appellee, or her counsel, notified of Harris's death. This notwithstanding, significant activity in the case continued to occur, ostensibly on behalf of Harris (the client), albeit he was deceased.

Harris's State Auto policy, part E(B)(Duties After Accident), provided "a person seeking any coverage must cooperate with us in the investigation, settlement or defense of any claim or suit." Part A(A)(Liability Coverage) of the policy, provided, in pertinent part, "we will pay damages. . . for which any `insurer' becomes legally responsible because of an auto accident.. . . We will settle or defend, as we consider appropriate, any claim or suit asking for these damages. In addition to our limit of liability, we will pay all defense costs we incur. Our duty to settle or defend ends when our limit of liability for this coverage has been exhausted." (Emphasis added).

Aside from normal phone and personal conversations, e-mails and correspondence between counsel, the following litigation activities ostensibly occurred on behalf of Harris after his death:

1. The parties scheduled a mediation conference for September 7, 2001. Myers attended as representing Harris, along with Bob Crotinger, State Auto's claims representative. Settlement offers were made by State Auto, however no settlement was reached between the parties.

2. Following the unsuccessful mediation, Jackson's counsel noticed a motion for trial for November 14, 2001. However, Jackson's counsel could not attend and instead, coordinated with Myers for his office to attend the hearing for all parties. Jackson's counsel gave him sixty-eight (68) days during the months of January through May of 2002 for which Jackson's counsel would be available for trial. An attorney from Myers's office did attend and manage the hearing and the matter was set by the Christian Circuit Court for pretrial on June 26, 2002 and trial for August 5-7, 2002. Paragraph three (3) of the Christian Circuit Court's order established that:

Discovery Compliance and witness disclosure shall be accomplished as quickly and efficiently as possible, with utmost good faith expected of counsel. Discovery/disclosure shall be pursed in a manner that does not delay resolution of the case or cause postponement of the trial. All disclosures anticipated under the civil rules shall be made sufficiently in advance of the pretrial conference to allow meaningful utilization by the other side. All discovery shall be completed at least ten days prior to the pretrial conference. Failure to file complete, accurate and timely information or failure to participate in discovery/disclosure as set out above may result in sanctions of the type contemplated by CR 37.02. (Emphasis added).

No notice was given at the pretrial conference, either to Jackson, her counsel, or the court, that Harris had died six months earlier.

3. Next on May 3, 2002, Myers served notice of an independent medical examination for Chadd on June 3, 2002, by Dr. Dennis O'Keefe in Bowling Green, Kentucky. The I.M.E. notice, noted the examination would be "at the expense of defendant Wilford M. Harris."

4. Then on May 9, 2002, Myers contacted the Kentucky Ethics telephone hotline personnel, per SCR 3.350, seeking advice in regards to his duties of disclosure. He was advised he did not have to take affirmative action adverse to his client, as long as his conduct did not amount to a fraud upon the court.

5. Myers followed the telephone conversation with a letter to the same ethical advisor on May 14, 2002. In this letter, Myers stated:

This letter is in follow-up to our conversation on May 9, 2002. As I indicated to you, I am involved in representing the defendant in this case. In this case, the defendant died approximately eleven months ago. To date, the plaintiff has made no effort to revive the claim. Notice of my client's death was published in the local newspaper. I have done nothing to conceal the death of my client from plaintiff's counsel, nor have I, in any way, misrepresented facts which would lead counsel to believe that he is still alive.

As I indicated to you in our telephone conversation, I am concerned with my ethical responsibilities in this case. While I hate to see another lawyer placed in the difficult position which I think is likely to develop, I sense that I have a duty to my client, and his estate, to remain silent and permit this case to take a posture where it can be dismissed because the action was not revived.

I would appreciate any insights that you have with respect to the ethical implications of this situation. (Emphasis added).

The official ethics response was, as follows:

This responds to your letter of May 14, a copy of which is attached.

You ask if you must tell the opposing attorney of the death of your client, so that the opposing attorney may react to deadlines, etc.

It is my opinion that you do not have to take affirmative action adverse to your client. However, I remind you of Rule of Professional Conduct 3.3(a)(2), which forbids your failure to disclose a material fact when disclosure is necessary to prevent a fraud upon the tribunal. If you are asked or otherwise required to respond to the court in this matter, you cannot misrepresent, by statement or by silence, that your client is deceased. (Emphasis added).

6. On May 23, 2003, Myers noticed the deposition of Jackson to be taken at his offices in Hopkinsville, Kentucky on June 20, 2002.

7. Thereafter, and sometime prior to June 3, 2002, Myers, as counsel for Harris, prepared and tendered an agreed order between all counsel, rescheduling the pretrial conference from June 26, 2002 to July 10, 2002.

8. Thereafter on June 10, 2002, Myers filed a Motion to Dismiss on behalf of the "defendant Wilford M. Harris, now deceased,. . ." seeking the dismissal of the action based upon the fact that Harris had died on May 25, 2001 and no revivor had been made. Attached to the motion was a copy of Harris's obituary, from Myers's file, which had appeared a year earlier in the local newspaper, The Kentucky New Era. Jackson responded with a Memorandum asking that the defendant be estopped from asserting limitations under KRS 395.278 due to the concealment of the fact of death.

By order entered July 10, 2002, the court dismissed the plaintiff's claims, for failure to revive pursuant to KRS 395.278. To this date, no estate has been opened for Harris, nor has any personal representative been appointed.

QUESTIONS RELATING TO JURISDICTION

This court can get all tied up in questions and answers regarding the court's jurisdiction in this matter, even to the point of questioning how any counsel could appear and file motions, briefs and a petition for discretionary review for a client that has been deceased for several years. See Kentucky Bar Ass'n v. Geisler, 938 S.W.2d 578 (Ky.1997)("When ... death occurs, however, the lawyer ceases to represent that identified client."), see also, Brantley v. Fallston General Hosp. Inc., 333 Md. 507, 636 A.2d 444 (Md.App. 1994)(where counsel's authority to file an appeal terminates upon...