ANDRE AZEROT v. ROMAN CATHOLIC BISHOP OF LOUISVILLE
Annotate this Case
Download PDF
RENDERED:
NOVEMBER 4, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000666-MR
ANDRE AZEROT
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LISABETH HUGHES ABRAMSON, JUDGE
ACTION NO. 03—CI-004834
ROMAN CATHOLIC BISHOP OF LOUISVILLE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GUIDUGLI AND MINTON, JUDGES; EMBERTON, SENIOR JUDGE. 1
EMBERTON, SENIOR JUDGE:
Andre Azerot appeals the summary
dismissal of his claims against the appellee (“Archdiocese”)
stemming from allegations of sexual abuse inflicted by a Roman
Catholic priest while Mr. Azerot was a student at St. Ann
Elementary School.
In a thorough and well-reasoned opinion, the
trial judge concluded that, viewing all material facts in the
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
light most favorable to appellant, his complaint was time-barred
by the applicable statute of limitations and the Archdiocese was
therefore entitled to judgment as a matter of law.
Finding no
error in that determination, we affirm the judgment dismissing
appellant’s complaint.
Born June 7, 1970, appellant Azerot attend school at
St. Ann Church between 1980 and 1986, during which time he
alleges that on numerous occasions he was the victim of sexual
abuse committed by Joseph T. Herp, a Roman Catholic priest at
the parish.
Appellant moved to Florida in 1993 and has resided
there since that time.
Alleging that he first learned through a
conversation with his mother sometime after June 1, 2002 that
the Archdiocese had been accused in numerous lawsuits of
engaging in a pattern of conduct designed to cover up abusive
conduct committed by its priests, appellant filed a complaint on
May 30, 2003 in which he asserted that the Archdiocese was 1)
negligent in hiring and failing to adequately discipline Joseph
Herp; 2) committed fraud by inducing him to attend St. Ann
School without warning him about Fr. Herp; and 3) violated a
fiduciary duty owned to him by failing to protect him from, or
warn him about, the sexually abusive conduct attributed to Fr.
Herp.
The Archdiocese thereafter sought dismissal of the action
contending that it had been filed well outside the applicable
limitations period.
The trial judge treated that motion as one
-2-
for summary judgment and dismissed appellant’s complaint as
time-barred, precipitating this appeal.
Conceding that the one-year limitations period for
personal injury actions would ordinarily bar his complaint,
appellant claims entitlement to application of the tolling
provision of KRS 413.190(2) based upon the conduct of the
Archdiocese in concealing its knowledge of Fr. Herp’s acts of
abuse and in failing to disclose such knowledge to the proper
authorities.
Relying upon Roman Catholic Diocese of Covington
v. Secter, 2 appellant maintains that this pattern of conduct on
the part of the Archdiocese is virtually indistinguishable from
conduct found to trigger application of the tolling provision in
that case.
Because we fully concur in the trial judge’s
analysis that application of the tolling provision is
nevertheless insufficient to salvage appellant’s claims, we
adopt the following rationale for distinguishing appellant’s
situation from that addressed in Secter:
However, even if all material facts are
viewed in Mr. Azerot’s favor, the law still
imposes a duty on him to exercise reasonable
care and diligence to in pursuing a cause of
action. See, e.g., Newberg v, Hudson, Ky.,
838 S.W.2d 384 (1992); Miller v. Thacker,
Ky., 481 S.w.2d 19 (1972); Rigazio, [Rigazio
v. Archdiocese of Louisville, Ky.App., 853
S.W.2d 295 (1993)]. In order for
concealment on the part of the Archdiocese
to toll the running the statute of
2
966 S.W.2d 286 (Ky.App. 1998).
-3-
limitations, it must hide the Plaintiff’s
cause of action in such a way that it cannot
be discovered by the exercise of ordinary
diligence on his part. St. Clair v.
Bardstown Transf. Line, Ky., 221 S.W.2d 679
(1949). See also Walter Bledsoe & Co. v.
Elkhorn Land Co., 219 F.2d 556 (6th Cir.).
Thus, even if he is correct that for many
years the Archdiocese hid the alleged abuse
committed by Mr. Herp, Mr. Azerot was still
under a legal duty to pursue his cause of
action when facts or circumstances gave him,
or at least would provide a reasonable
person standing in his shoes, notice that a
claim may exist. In other words, he cannot
remain oblivious to a cause of action when
information is available that it exists even
though the Archdiocese may be taking steps
to hide it.
In the matter sub judice, Mr. Azerot
contends that the Archdiocese has engaged in
a decades long pattern of covering up the
unlawful conduct of Joseph Herp. He argues
that this conduct continued well after the
first lawsuit was brought against the
Archdiocese on April 19, 2002, and well
after the flood of news stories that began a
week before. It is undisputed that on April
14, 2002, the Courier-Journal printed an
article regarding the Archdiocese’s alleged
long-standing practice of concealing known
incidents of sexual abuse of students by
priests. A second article appeared in the
same newspaper only two days later, on April
16, 2002. Possibly as a result of these
news items, a flood of lawsuits against the
Archdiocese began shortly thereafter, with
the first being filed on April 19, 2002.
Beginning with the first lawsuit, the
actions brought against the Archdiocese
became the subject of pervasive new
reporting in all forms of media, including
newspaper, radio and television. These
actions and the controversies underlying
them have continued to be a prominent media
topic to the present day. Similarly, as the
Archdiocese notes, between April 14, 2002
-4-
and April 30, 2002, twenty-eight articles
appeared in the South Florida Sun-Sentinel
regarding past sexual abuse committed by
Catholic priests and the alleged cover-up
engaged in by the Catholic church. An
additional twenty-four articles regarding
this topic also appeared in USA Today during
this same period of time. By his own
admission, Mr. Azerot learned of the
Jefferson County lawsuits and the publicity
surrounding them no later than the first few
days of June, 2002, less than two months
after the first lawsuit was filed and the
first new story disseminated. Because of
this it would be reasonable to conclude that
with an ordinary exercise of due diligence,
Mr. Azerot should have filed this action
well within the year following April, 2002.
However, the analysis by which the trial judge
concluded that appellant’s claim was time-barred did not stop
there.
Noting that an out-of state residency might well affect
a prospective plaintiff’s notice concerning a potential cause of
action, the trial judge concluded that the statute of
limitations on appellant’s claim expired long before he moved to
Florida and before the flood of litigation initiated against the
Archdiocese in 2002.
In support of this conclusion, the trial
judge cited documents produced by the Archdiocese and referenced
by appellant in his response to the motion to dismiss.
These
documents, in the words of appellant, “confirm that the
Plaintiff Andre Azerot contacted the Defendant Church
complaining of abuses” as early as 1989.
One of these
documents, a handwritten note by an Archdiocese representative
-5-
dated July 3, 1989, when appellant was 19 years of age and
before his move out-of-state, indicates that appellant had been
engaging in a pattern of conduct which included personal visits
and telephone calls to Fr. Herp, threatening to “get his parents
involved” and sue Fr. Herp.
The second document is a
typewritten recollection by Fr. Herp dated July 4, 1989,
summarizing appellant’s visits and phone calls.
In this
document, Fr. Herp states that appellant’s contacts, which at
times included threats of violence which appellant claims were
made by his brother, commenced in 1986.
The note also reveals
that on July 3, 1989, appellant informed Fr. Herp in person that
his parents had been informed about the sexual abuse and that
his family was attempting to build a case in order to sue him.
Appellant did not dispute the authenticity of these documents.
On the basis of this undisputed evidence, the trial
judge concluded that over one year after attaining majority
appellant was aware of both his injury and the identity of his
abuser, a priest and teacher appellant knew had been employed by
the Archdiocese and placed at the St. Ann School.
Thus, in
light of appellant’s own words and actions, it is clear that no
conduct on the part of the Archdiocese can be said to have
concealed from him facts essential to his claim.
As noted by
the trial judge, where at age 19 appellant knew with certainty
the circumstances of his abuse, there is no justifiable
-6-
rationale by which one might conclude that his cause of action
remained hidden until after June 1, 2002.
We therefore concur
in the trial judge’s assessment that, regardless of any act of
concealment on the part of the Archdiocese, appellant possessed
requisite notice of the facts to allow him to file suit against
both Fr. Herp and the Archdiocese in 1989.
A recent opinion from a sister jurisdiction provides
additional support for the rationale expressed in the opinion of
the trial judge.
In Meehan v. Archdiocese of Philadelphia, 3 the
Court addressed almost identical contentions asserted by
plaintiffs seeking to avoid a statutory bar to their claims.
We
find the reasoning of the Meehan court instructive in resolving
the matter before us:
It is undisputed that the plaintiffs were
aware that the Archdiocese employed their
abusers and that the abuses all occurred on
church property. These facts alone were
sufficient to put the plaintiffs on notice
that there was a possibility that the
Archdiocese had been negligent. Neither the
plaintiffs’ lack of knowledge of the
Archdiocese’s conduct, nor the plaintiffs’
reluctance, as members of the Catholic
Church, to investigate the possible
negligence of the Archdiocese of
Philadelphia after having been abused by one
of its priests or nuns, tolls the statute of
limitations when the plaintiffs had the
means of discovery but neglected to use
them. 4
3
870 A.2d 912 (Pa.Super, 2005).
4
Id. at 921.
-7-
The Court also disposed of a contention that the existence of a
fiduciary relationship between the plaintiffs and the
Archdiocese rendered its conduct an affirmative act of
fraudulent concealment which required a jury determination as to
the tolling of the statute of limitations:
We agree with the Archdiocese that the
doctrine of fraudulent concealment does not
toll the statute of limitations here. The
plaintiffs have not put forth any evidence
to indicate that they made any inquiries to
the Archdiocese prior to 2002 regarding
their potential causes of action. The
plaintiffs do not allege the defendants’
silence misled them into believing that the
alleged sexual abuse did not occur, that it
had not been committed by the priests or
nun, or that it had not resulted in injury
to appellants. The defendants never
concealed from any of the plaintiffs the
fact of the injury itself. Nor do the
plaintiffs allege that they were lied to by
the Archdiocese with regard to the identity
of their abusers or their abusers’ place
within the Archdiocese, which if relied
upon, would have cause them to suspend
pursuit of their claims.
Again, the essence of the plaintiffs’
fraudulent concealment argument is that the
defendants’ general conduct and/or silence
concealed from them an additional theory of
liability for the alleged sexual abuse. As
noted in the federal case, Kelly v.
Marcantonio, “this argument misses the mark
...for a cause of action to accrue, the
entire theory of the case need not be
immediately apparent...as soon as [the
plaintiffs] became aware of the alleged
abuse, they should also have been aware that
the [defendants], as the priests’ employers,
were potentially liable for that abuse.”
-8-
Kelly v. Marcantonio, 187 F.3d 192,201 (1st
Cir. 1999). 5
Thus, contrary to appellant’s assertions that he had not been
placed on “inquiry notice” and therefore the duty to exercise
ordinary diligence never arose, the facts of this case plainly
dictate otherwise.
The trial judge quite correctly concluded
that as early as 1989 appellant’s own admitted actions in
threatening to take action with the Archdiocese and/or sue Fr.
Herp triggered a duty to exercise due diligence in pursuing his
claim.
We are convinced that these facts in and of themselves
are sufficient to distinguish appellant’s situation from the
facts addressed in Secter.
Accordingly, the dismissal of appellant’s complaint as
time-barred is in all respects affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John D. Cox
Louisville, Kentucky
Edward H. Stopher
Raymond G. Smith
Louisville, Kentucky
5
Id. at 922.
-9-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
