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Jackson v. Harris11/7/2003
Harris's death and did not disclose the death to Jackson or her attorney, " ere negotiations looking toward amicable settlement do not afford a basis for estoppel to plead limitations." Gailor, supra at 603.
"An estoppel may arise to prevent a party from relying on a statute of limitation by virtue of a false representation or fraudulent concealment." Munday v. Mayfair Diagnostic Laboratory, Ky., 831 S.W.2d 912, 914 (1992). The Kentucky Supreme Court in the Munday case further held that the application of estoppel generally requires "some act or conduct which in point of fact misleads or deceives plaintiff and obstructs or prevents him from instituting his suit while he may do so." Id., quoting Adams v. Ison, Ky., 249 S.W.2d 791 (1952). Although proof of fraud generally requires an affirmative act by the party charged, " n exception to this general rule may be found in a party's silence when the law imposes a duty to speak or disclose." Munday, supra. Because Harris's attorney had no duty to speak or disclose, I conclude that Harris was not estopped from raising the failure to comply with KRS 395.278 as a defense and from procuring an order of dismissal from the circuit court. In short, I would affirm the court's order.
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