The Risk Manager, Fall 2008

By LawReader Senior Editor Stan Billingsley

Editor’s Note: This article is one of a series that LawReader.com has agreed to provide for Lawyers Mutual’s newsletter as a bar service. LawReader.com provides Internet legal research service specializing in Kentucky law. For more about LawReader go to www.LawReader.com.

The Kentucky Court of Appeals in Frank v. Estate of Enderle (253 S.W.3d 570, (Ky. App., 2008)) confirmed the dismissal of a civil lawsuit because of the failure of the plaintiff’s attorney to revive the suit. The suit had been automatically abated upon the death of the defendant as required by Kentucky Civil Rule of Procedure 25.01, Death. The requirement to revive a suit is equally applicable when the plaintiff dies. The malpractice implications for an attorney who allows a dismissal to occur for failure to revive are obvious.

 

In Frank the Court of Appeals explained that:

When a party to litigation pending in a Kentucky court dies, the action is abated, unless and until the action is revived by substituting the decedent’s representative. As specified in CR 25.01(1), [i]f a party dies during the pendency of an action and the claim is not thereby extinguished, the court, within the period allowed by law, may order substitution of the proper parties. (Editor’s note: CR 25.01(2) lists parties to whom abatement does not apply.)

CR 25.01 must be read in tandem with KRS 395.278 which directs the "application to revive an action . . . shall be made within one (1) year after the death of a deceased party." Because KRS 395.278 is "a statute of limitation, rather than a statute relating to pleading, practice or procedure, and the time limit within this section is mandatory and not discretionary, "neither a court nor a party may extend the one-year statute of limitations…. Thus, if within one year of a litigant's death an action is not revived against the administrator of a decedent's estate and the administrator substituted as the real party in interest, then the suit must be dismissed.

 

The following Kentucky authority dealing with this issue embellishes the teaching of Frank:

  • Hammons v. Tremco Inc., 887 S.W.2d 336 (Ky. 09/01/1994) held that “dismissal is not discretionary with the court....” Snyder v.Snyder, Ky. App., 769 S.W.2d 70 (1989).
  • The mere appointment of a personal representative by the District Court does not toll the statute of limitations. The personal representative must take the additional step of filing a motion for substitution in order to effect a revival of the action. New Farmers Nat. Bank v. Thomas, 411 S.W.2d 672 (Ky., 1967)
  • “Upon the death of Louise Williams the cause of action survived to her personal representative. It was not necessary to bring a new suit. The same suit could be prosecuted in the name of the personal representative if he revived it in … time…. Once a limitation begins running the intervening infancy or other disability or another interested party does not stop the running of the limitation.” (emphasis added) Elkhorn Land & Co. v. Wallace, 232 Ky. 741, 24 S.W. 2d 560; 34 Am.Jur. 160, Limitation of Actions, sec. 199.”
  • An attorney may not withhold news of his client’s death from the opposing party or the court, in the hope of allowing the statute of limitations to run before revival. Harris v. Jackson, 2004-SC-000121-DG (Ky. 5/18/2006) citing Kentucky Bar Association v. Geisler, 938 S.W.2d 578, 580 (Ky. 1997).

Frank is highly recommended professional reading.