Barbara Ann Ditto v. Jerry T. Mucker ( 2022 )

RENDERED: NOVEMBER 18, 2022; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1488-MR
BARBARA ANN DITTO AND
ROBERT E. MURRAY, JR. APPELLANTS
APPEAL FROM BRECKINRIDGE CIRCUIT COURT
v. HONORABLE KENNETH H. GOFF, II, JUDGE
ACTION NO. 17-CI-00222
JERRY T. MUCKER APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CETRULO, AND GOODWINE, JUDGES.
CETRULO, JUDGE: Appellants appeal an order from the Breckinridge Circuit
Court dismissing their lawsuit for failure to revive their personal injury action
within one year of the death of the Appellee. We affirm.
I. BRIEF HISTORY
On November 7, 2015, Robert E. Murray, Jr. and Barbara Ann Ditto
(collectively, “the Appellants”) were involved in a two-vehicle accident with
Appellee Jerry Mucker (“Mucker”). In November 2017, the Appellants filed a
complaint in circuit court claiming Mucker acted negligently while driving his
vehicle. First Chicago Insurance Company (“First Chicago”), Mucker’s vehicle
insurer, represented him in the action.
On September 16, 2020, the parties held an unsuccessful mediation.
At the end of mediation, Appellants’ counsel informed First Chicago that Mucker
had recently died of COVID-19. Thereafter, First Chicago contacted Mucker’s
niece who confirmed he had died one week prior, on September 9, 2020. Then,
First Chicago filed a notice of death of defendant with service to the Appellants.
No personal representative was appointed for the deceased Mucker; no estate was
opened for Mucker.
On September 24, 2021, First Chicago filed a motion for summary
judgment, claiming the Appellants had one year from Mucker’s death to substitute
a personal representative for him to revive the action, but – because they made no
substitution – the statute of limitations mandated dismissal of the action. After
both parties briefed the issue, the Breckinridge Circuit Court granted the motion
for summary judgment and dismissed the underlying action. The trial court found
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that, despite having received proper notice of Mucker’s death, the Appellants failed
to revive their action – by substituting a personal representative for Mucker –
within the one-year statute of limitations. Additionally, the trial court determined
that any agency relationship that may have existed between First Chicago and
Mucker terminated upon Mucker’s death. Finally, the trial court found no conflict
of interest or ethical violations “for a plaintiff to take action to revive claims
against a deceased defendant.” This appeal resulted.
II. STANDARD OF REVIEW
The standard of review upon appeal of an order granting summary
judgment is “whether the trial court correctly found that there were no genuine
issues as to any material fact and that the moving party was entitled to judgment as
a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing
Kentucky Rule of Civil Procedure (“CR”) 56.03). Upon a motion for summary
judgment, all facts and inferences in the record are viewed in a light most favorable
to the non-moving party and “all doubts are to be resolved in his favor.” Steelvest,
Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citation
omitted). A summary judgment looks only to questions of law, and we review de
novo. Brown v. Griffin, 505 S.W.3d 777, 781 (Ky. App. 2016) (citation omitted).
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III. ANALYSIS
Kentucky Revised Statute (“KRS”) 395.278 and CR 25.01(1) act in
tandem to provide the process of revival – when a defendant dies during the course
of litigation – as well as the window within which it must be completed. Est. of
Benton by Marcum v. Currin, 615 S.W.3d 34, 36 (Ky. 2021).
When a party to an action dies while that action is
pending, that action is abated and lies dormant until it is
revived by a proper successor-in-interest. Hardin Cnty.
v. Wilkerson, 255 S.W.3d 923, 926 (Ky. 2008). KRS
395.278 provides that “[a]n 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.” CR 25.01, which operates in
conjunction with KRS 395.278, provides, in pertinent
part:
(1) If 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. If substitution is
not so made the action may be dismissed as to the
deceased party. The motion for substitution may
be made by the successors or representatives of the
deceased party or by any party[.]
Id.On appeal, the Appellants contend that dismissal was improper
because First Chicago had a duty to have an administrator appointed in Mucker’s
stead for the underlying negligence claim to proceed. More specifically, the
Appellants argue that First Chicago – as Mucker’s insurer – had a duty to represent
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Mucker in the negligence action and that duty made First Chicago a
“representative” of Mucker. By being his “representative,” First Chicago was also
an “agent” of Mucker.1 Therefore, as his “agent,” First Chicago had a duty to
continue that representation through, and including, the appointment of an
administrator for the deceased.2 Additionally, the Appellants argue that they were
ethically prohibited from filing for the appointment of an administrator for
Mucker’s estate because Supreme Court Rule (“SCR”) 3.130 (1.7) prohibits
attorneys from representing opposing parties in an action.
To the contrary, First Chicago, as Mucker’s representative, argues it
did not have a duty to revive the underlying negligence action after Mucker’s
death; that ethical rules did not bar the Appellants from opening an estate for the
deceased; and finally, that the trial court properly granted the summary judgment
1
Appellants make this leap from “representative” to “agent” through Black’s Law Dictionary,
5th Edition, and Kentucky precedent from 1932. Appellants – citing this early edition of Black’s
Law Dictionary – define a “representative” as “[o]ne who represents or stands in the place of
another. One who represents another in a special capacity as an ‘agent’ and the term is
interchangeable with ‘agent.’” Representative, BLACK’S LAW DICTIONARY (5th ed. 1979). Also,
Appellants argue that “agency’ is a contractual relationship that may be “implied from the acts
and conduct of the parties[,]” paraphrasing Monohan v. Grayson Cnty. Supply Co., 245 Ky. 781,
54 S.W.2d 311, 312 (1932).
2
Appellants argue “Restatement of Agency, § 387 sets forth the general principle that . . . an
agent is subject to a duty to his principal to act solely for the benefit of the principal in all
matters connected with his agency.” (Emphasis in Appellants’ brief, not in original.)
Appellants argue that First Chicago – upon Mucker’s death – was obligated to protect his assets
which included any settlement or award granted to Appellants in the underlying action.
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because the underlying lawsuit was not properly revived before the expiration of
the statute of limitations. We agree, as does Kentucky precedent.
“It is fundamental to our jurisprudential system that a court cannot, in
an in personam action acquire jurisdiction until a party defendant is brought before
it. The party defendant must actually or legally exist and be legally capable of
being sued.” Jackson v. Est. of Day, 595 S.W.3d 117, 122 (Ky. 2020) (quoting
Ratliff v. Oney, 735 S.W.2d 338, 341 (Ky. App. 1987)). However, a defendant’s
death during the pendency of an action does not necessarily extinguish the claim.
CR 25.01(1). If a defendant dies after a complaint is filed but before legal
resolution, the attorney for the deceased has a duty to disclose his or her client’s
death to the opposing party. Harris v. Jackson, 192 S.W.3d 297, 307 (Ky. 2006).
Yet, the deceased’s attorney is not required to file the motion for substitution.
CR 25.01(1) (“The motion for substitution may be made by the successors or
representatives of the deceased party or by any party[.]”) (emphasis added). See
also Harris, 192 S.W.3d at 304 and Est. of Day, 595 S.W.3d at 124. If the
representative or other party decides to revive the action, they must file a motion
for substitution within one year after the defendant’s death. KRS 395.278.
In Harris, the Kentucky Supreme Court discussed a similar situation.
Harris, 192 S.W.3d 297. Harris and Jackson were involved in a two-vehicle
accident. Id. at 299. Jackson filed an action against Harris alleging personal injury
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claims. Id. Harris died during the course of the litigation, but Harris’s legal
representative did not inform the opposing party of Harris’s death. Id. Harris’s
attorney contacted the Kentucky Ethics hotline in regard to his duties of disclosure.
Id. at 300. He was advised he did not have to take affirmative action adverse to his
client, as long as his conduct did not amount to a fraud upon the court. Id.Following that advice, Harris’s counsel continued with the legal
proceedings without notifying the opposing party of Harris’s death. Id. One year
after Harris’s death, his counsel filed a motion to dismiss because Jackson had not
filed a revivor. Id. at 301. The circuit court dismissed Jackson’s claims for failure
to revive pursuant to KRS 395.278. Harris, 192 S.W.3d at 301. On appeal – in
pertinent part – the Kentucky Supreme Court determined that Harris’s legal
counsel had a duty to disclose his client’s death and because of that failure, Harris
was estopped from using the statute of limitations defense. Id. at 307. However,
our Supreme Court did not extend that duty beyond the obligation to report the
death.
As in Harris, here, the alleged tortfeasor died after the complaint was
filed but before legal resolution. Here, the duty to disclose Mucker’s death was not
at issue; all parties were aware of his death approximately one week after it
occurred. Instead, the Appellants attempt to expand the duty beyond disclosure,
but Harris does not support that expansion. The Harris Court did not find that the
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deceased’s attorney must also file the revivor. In fact, 14 years later – when
discussing the Harris opinion – the Kentucky Supreme Court referred to the fact
that “[t]he plaintiffs [i.e., Jackson] in the case were required to revive the action
pursuant to KRS 395.278 within one year of [Harris’s] death, which they failed to
do . . . .” Est. of Day, 595 S.W.3d at 124. Again, our Supreme Court emphasized
the clear direction in CR 25.01: the motion for substitution “may be made by the
successors or representatives of the deceased party or by any party. . . .” CR
25.01(1).
Next, the Appellants argue that First Chicago had a duty to file the
revivor because of the ongoing agency relationship between Mucker and his
insurer. Simply, we do not agree. There is no need to discuss if an agency
relationship existed because even if an agency relationship existed, the agency
ended at Mucker’s death. The trial court stated it clearly and it is worth repeating:
“An agency . . . is the fiduciary relation which results
from the manifestation of consent by one person [the
principal] to another [the agent] that the other shall act on
his behalf and subject to his control, and consent by the
other so to act.” Ping v. Beverly Enterprises, Inc., 376
S.W.3d 581, 591 (Ky. 2012) (citing Phelps v. Louisville
Water Company, 103 S.W.3d 46, 50 (Ky. 2003)[)]. The
death of the principal brings the agency relationship to an
end since the principal’s control of the agent is generally
deemed an essential element of the agency relationship.
Id. (See also, Restatement 2d of Agency, § 120). Even if
an agency relationship existed, the relationship would
have ended on September 9, 2020 with the death of Mr.
Mucker.
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(Internal quotation marks omitted.)
While Appellants agree that Ping, 376 S.W.3d at 591, correctly
addresses the creation of an agency relationship, they disagree with the trial court’s
application of Ping to the end of this agency relationship. The Appellants argue
that death should not terminate this agency relationship because, under these
circumstances, (1) an insurer requires little to no interaction with the client in order
to reach a resolution in a legal action (thereby not requiring “control”), and (2)
First Chicago was continuing the agency after Mucker’s death by proceeding in the
underlying litigation, i.e., by filing the motion for summary judgment.
First, while in practice it may be true that insurers require little, if any,
input from their clients when approaching a settlement, we are a precedent-
following court. Special Fund v. Francis, 708 S.W.2d 641, 642 (Ky. 1986). We
are not at liberty to create a unique exception to the well-established rule that
agency relationships terminate at the death of the principal. Ping, 376 S.W.3d at
591. See also Moore v. Garred, 223 Ky. 20, 2 S.W.2d 1036, 1037 (1928) (citation
omitted) (“It is a well-established rule of the common law that, since an agent can
and does act only in the name of the principal and executes his will, the death of
the principal ordinarily works an immediate termination of the authority of the
agent by operation of law, unless the agent’s authority is coupled with an interest
in the subject-matter.”).
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Second, as reiterated by Harris, the doctrine of virtual representation
allows for a non-party insurance provider to continue representation because it is a
real party in interest as the primary obligor. Harris, 192 S.W.3d at 302-03. First
Chicago, like the insurance company in Harris, “has the duty to defend, and pay
the defense’s costs, as well as the right to settle as it consider[s] appropriate[,]”
thereby making it a “real party in interest.” Id. at 304 (internal quotation marks
omitted). Therefore, First Chicago was not acting as Mucker’s agent after his
death, but rather continuing with the action through virtual representation.
Finally, Appellants argue that if they had filed a petition on Mucker’s
behalf, that would be – in a limited capacity – the same as representing both sides
of the litigation, thereby violating SCR 3.130 (1.7).3 However, from our view, not
petitioning for the appointment is contrary to the Appellants’ own interest because
without the appointment, as we have discussed, the litigation could be properly
dismissed under CR 25.01 and KRS 395.278. Additionally, the appointment,
under these circumstances, is more akin to joining an essential party than it is
representing an opposing party. Moreover, our Kentucky Supreme Court
addressed the issue of revivor without imposing a duty to file the petition for
3
SCR 3.130 (1.7) states, in pertinent part, “a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent conflict of interest exists
if: [] the representation of one client will be directly adverse to another client; . . . a lawyer may
represent a client if: . . . [] the representation does not involve the assertion of a claim by one
client against another client represented by the lawyer in the same litigation or other proceeding
before a tribunal; . . . .”
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substitution on a particular party. See Harris, 192 S.W.3d at 307; see also Est. of
Day, 595 S.W.3d at 123. Lastly, we agree with First Chicago’s argument:
If Appellants believed that opening an estate for Jerry
Mucker was in violation of ethics rules, they could have
filed a motion at any time seeking the trial court to allow
Appellants the right to open an estate, to order defense
counsel to provide whatever information was needed to
open an estate, or even to order the defense to open an
estate. That did not happen.
Therefore, we find that First Chicago, on behalf of Mucker, was
entitled to judgment as a matter of law.
IV. CONCLUSION
Accordingly, we AFFIRM the Breckinridge Circuit Court’s order
granting summary judgment and dismissing the action.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE:
Alan W. Roles Galen L. Clark
Louisville, Kentucky Louisville, Kentucky
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