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Wilkerson v. Hardin County12/17/2004
REVERSING AND REMANDING
Appellant Charles Wilkerson, the Executor of the Estate of Bessie Wilkerson, (Wilkerson), appeals a Hardin Circuit Court ruling on the expiration of the Statute of Limitations for reviving a cause of action. We reverse the order of the Hardin Circuit Court, and remand the action.
Wilkerson's decedent was an elderly woman. While in the hospital for medical care, Bessie Wilkerson fell out of bed and broke her hip. Bessie filed an action for medical negligence. The hospital claimed sovereign immunity, and this claim was appealed. In an opinion dated August 9, 2002, this Court held that the hospital could not properly claim sovereign immunity, and the action was remanded for trial. During the pendency of the appellate action, Bessie Wilkerson passed away. Her date of death was July 16, 2002.
Charles Wilkerson was appointed Executor of Bessie's Estate. On July 21, 2003, the defendants in Bessie's lawsuit made a motion that the action be dismissed as it had not been revived by her personal representative within a year of Bessie's death. In his response to the motion to dismiss, Wilkerson informed the court that the insurer for the defendants/appellees had become insolvent on June 20, 2003. Charles noted that as a matter of law, this insolvency stayed the action for a period of six months. Wilkerson attached a letter from counsel for Appellees to Wilkerson's lawyer as an exhibit to his response to the motion to dismiss. This letter stated that the insurer was insolvent, and that counsel for Appellees could take no further action in the case at that time. Counsel for Appellees also stated that he would be filing a motion for a stay based on the insolvency. That letter was dated May 13, 2003. The formal order of liquidation and insolvency was entered in Virginia on June 20, 2003. The record shows that all parties had notice of entry of this order.
The Hardin Circuit Court dismissed the action on August 20, 2003, in reliance upon KRS 395.278, the Statute imposing a time limit for revival of a personal injury action in which the plaintiff is deceased. The court held that "Plaintiff's personal representatives have failed to revive Plaintiff's action within one year of her death on July 16, 2002." Charles' post-judgment motion to set aside the Court's order and to revive the action after that date was denied.
Charles Wilkerson notes that in June, 2003, less than a year after Bessie died, the insurance carrier for the defendant hospital became insolvent. He argues that KRS 304.36-085 tolled the time limit imposed by KRS 395.278, and granted him an additional six months within which to revive the action. KRS 304.36-085 provides:
All proceedings in which the insolvent insurer is a party or is obligated to defend a party in court in this state shall, subject to waiver by the association in specific cases involving covered claims, be stayed for six (6) months and any additional time that may be determined by the court from the date that the insolvency is determined or an ancillary proceeding is instituted in the state, whichever is later, to permit proper defense by the association of all pending causes of action.
Id. Wilkerson asserts that this Statute clearly stayed Bessie Wilkerson's action against the hospital, and provided him an additional six months in which to revive the action following her death. Wilkerson claims that after the court and parties received the insolvency order on June 30, 2003, the defendants were barred from taking any action with regard to Bessie's case for six months. Wilkerson argues that a mandatory stay tolls the Limitations period for the term provided by law.
App
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