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Wilkerson v. Hardin County12/17/2004
McANULTY, JUDGE, CONCURS.
MINTON, JUDGE, DISSENTS.
MINTON, JUDGE, DISSENTING
I respectfully dissent.
As a result of Bessie Wilkerson's death, the status of her personal injury claim in the circuit court was -- using terminology from Daniel v. Fourth and Market, Inc. -- in a state of limbo. This claim would remain in limbo until a personal representative took steps to revive the action under KRS 395.278. As discussed in Daniel, "reviver is not a simple matter of straightening up the record of a lawsuit." Id. at 688. " evivor is much in the nature of a new action as distinguished from an act done during the course of a proceeding...." Id. Since the claim was in limbo, not pending, when the insurer became insolvent, I do not agree that KRS 304.36.085 ever prevented Bessie Wilkerson's personal representative from taking steps to revive this action. This means that the mandatory time limitation for revival could not have been tolled by any stay, automatic or otherwise, created by KRS 304.36-085. So I would affirm the circuit court's dismissal.
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