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Jackson v. Harris11/7/2003
REVERSING AND REMANDING
Maria Jackson appeals from an order of the Christian Circuit Court dismissing her lawsuit, filed on behalf of herself and her infant son, against Wilford Harris for failure to substitute Harris's estate as a party within one year of his death. Upon reviewing the facts in this case, we conclude that Harris's attorney had an ethical duty to disclose the death of his client and that his failure to do so caused Jackson to rely on her belief that Harris was alive to her detriment. Consequently, we reverse the trial court and remand this case with instructions that Jackson be allowed to amend her complaint to substitute Harris's estate as a party.
Jackson, who was carrying a full term fetus, was involved in an automobile accident on June 3, 1999, when her car was rear ended by Harris's car. Jackson's child sustained serious and permanently disabling injuries. She filed a personal injury suit, on behalf of herself and her infant son, against Harris in the Christian Circuit Court on March 23, 2000. Interrogatories and requests for discovery were served along with the complaint. Depositions were taken from the parties, physicians, and the officer who investigated the accident. Harris died on May 25, 2001, a fact that was concealed from Jackson until Harris's attorney filed a motion to dismiss her claim for failure to substitute the estate as a party within one year of Harris's death. After a hearing, the trial court granted the motion to dismiss the action, and this appeal followed.
Jackson first argues that the rules of statutory construction require us to infer a notice requirement within Kentucky Revised Statute (KRS) 395.278 which limits the time period within which a suit can be revived following the death of a party. The statute reads as follows:
An application to revive an action in the name of the representative or successor of a plaintiff, or against the representative or successor of a defendant, shall be made within one (1) year after the death of a deceased party.
The language of the revivor statute is clear and unambiguous. Moreover, Jackson is unable to cite us to any Kentucky case law interpreting the statute to include a requirement that an opposing party be notified of the death of a defendant. Consequently, this argument is unpersuasive.
Jackson, however, correctly points out that a party may be estopped from asserting the right to a dismissal under KRS 395.278. Daniel v. Fourth and Market, Inc., Ky., 445 S.W.2d 699 (1968); Hammons v. Tremco, Inc., Ky., 887 S.W.2d 336 (1994). In the case sub judice, Jackson argues that Harris is estopped from requesting dismissal for failure to revive the action within one year of his death because his attorney violated an ethical duty by failing to inform Jackson's counsel of Harris's death. This failure to disclose caused Jackson to rely on her belief that Harris was alive and, furthermore, detrimentally impacted Jackson in that she failed to file a motion to revive her claim within the statutorily prescribed period. In analyzing this argument, we need to first examine some of the actions that took place after Harris's death in May 2001.
Harris's attorney, Honorable Doug Myers, cut out his former client's obituary and saved it for over a year, attaching it at last to his motion to dismiss. In the interim, Myers participated in mediation on September 7, 2001, after which Harris's auto insurer offered to settle the case. The case failed to settle; consequently, Jackson filed a motion to set the case for trial on September 20, 2001, and provided a list of dates when counsel would be available. Myers sent an associate to the November 14 hearing with hi
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