Commonwealth of Kentucky Court of Appeals DAN DUFFY, INDIVIDUALLY; DAN DUFFY, AS LIMITED GUARDIAN AND LIMITED CONSERVATOR FOR LOUISE WILLIAMS v. KINDRED HEALTHCARE, INC.
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RENDERED: May 6, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2004-CA-001523-MR
DAN DUFFY, INDIVIDUALLY;
DAN DUFFY, AS LIMITED
GUARDIAN AND LIMITED
CONSERVATOR FOR LOUISE
WILLIAMS
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 04-CI-01973
KINDRED HEALTHCARE, INC.
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; GUIDUGLI, JUDGE; MILLER, SENIOR
JUDGE.1
MILLER, SENIOR JUDGE:
Dan Duffy, as limited guardian and
limited conservator for Louise Williams, appeals from an order
of the Fayette Circuit Court which, among other things,
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110.(5)(b) of the Kentucky Constitution and
KRS 21.580.
dismissed a personal injury action brought by Duffy on behalf of
Williams.
Because the action is barred by the applicable
statute of limitations, we affirm.
Louise Williams is the mother of Dan Duffy.
Upon
application by Duffy, on January 13, 2003, the Fayette District
Court appointed the Cabinet for Families and Children as limited
guardian and limited conservator for Williams.
Rita Baker was
assigned to perform this duty on behalf of the Cabinet.
Shortly
thereafter, on February 21, 2003, Williams was admitted as a
resident at Winchester Centre for Health and Rehabilitation,
which is operated by Kindred Healthcare, Inc.
On April 16, 2003, Williams was found lying on the
floor in the hallway outside of her room at Winchester Center,
apparently having suffered a fall.
Rita Baker was notified of
the situation, and Williams was transported by ambulance to the
Clark Regional Medical Center.
As a result of the fall Williams
suffered an injury to her right hip.
Five days after Williams’ fall, on April 21, 2003,
Duffy filed another petition for guardianship in Fayette Circuit
Court seeking to have himself appointed as Williams limited
guardian and limited conservator.
(KRS) 387.590.
Kentucky Revised Statutes
On August 21, 2003, Duffy was appointed to
replace Baker as limited guardian and limited conservator.
2
On May 7, 2004, Duffy filed a pro se complaint on
behalf of himself and Williams.
As relevant to this appeal, the
complaint alleged a claim for personal injury as a result of the
April 16, 2003, incident.2
On May 27, 2004, Kindred Healthcare filed a motion to
dismiss pursuant to Ky. R. Civ. P. (CR) 12.02(f).
A hearing on
the motion was held on June 11, 2004, at which time the trial
court indicated it would grant the appellee’s motion to dismiss.
On June 16, 2004, the circuit court entered an order which,
among other things, dismissed the personal injury claim as
barred by the one-year statute of limitations for personal
injury claims as contained in KRS 413.140(1)(a).
Prior to the entry of the June 16 order, based upon
the results of the June 11 hearing, on June 14, 2004, Duffy
filed a motion “To Reconsider and Reopen.”
With regard to the
personal injury claim, the motion alleged that the statute of
limitations was tolled by KRS 413.280 on the basis that Williams
was suffering from multiple disabilities at the time her cause
of action accrued, namely, blindness and ambulation.
On July 8,
2004, the trial court entered an order denying the motion.
This
appeal followed.
2
On his own behalf, Duffy alleged counts relating to defamation and a “false
report to 911” by the nursing home. Duffy has not appealed the dismissal of
these claims.
3
Duffy’s pro se brief is somewhat disjointed; however,
we are able to extract from the brief two principal arguments:
First, that the one-year statute of limitations contained in KRS
413.140(1)(a) was tolled by the “discovery rule”; and second,
that the limitations period was tolled pursuant to KRS 413.280.
KRS 413.140(1)(a) provides that an action for personal
injury must be brought within one year.
The alleged personal
injury occurred on April 16, 2003, and Duffy did not file his
complaint until May 7, 2004, which was three-weeks outside of
the one-year limitations period.
Hence, unless for some reason
the limitations period was tolled, the filing was not timely.
The limitations period was not tolled by the discovery
rule.
A concise statement of the discovery rule is contained in
Carroll v. Owens-Corning Fiberglas Corp., 37 S.W.3d 699, 700
(Ky. 2000): "When an injury does not manifest itself
immediately, the cause of action should accrue not when the
injury was initially inflicted, but when the plaintiff knew or
should have known that he had been injured by the conduct of the
tortfeasor."
Id. at 700 (quoting Louisville Trust Co. v. Johns-
Manville Prods. Co., Ky., 580 S.W.2d 497, 500 (1979)).
Here, the injury resulting from Williams April 16,
2003, fall manifested itself immediately, so the discovery rule
is inapplicable.
In addition, as discussed further below, it
does not appear that Williams was under any incompetency which
4
would have prevented her from knowing that she was injured on
April 16, 2003.
We are of the opinion that the statute was not
tolled by application of the discovery rule.
The limitations period was also not tolled by KRS
413.280.
KRS 413.280 provides as follows:
When two (2) or more disabilities exist in
the same person at the time the cause of
action accrues, the limitation does not
attach until they are all removed.
The disabilities which Duffy alleges are suffered by
Williams, and hence toll the limitations period, are blindness
and ambulation.
These, however, are physical disabilities
unrelated to the type of “disability” referred to in KRS
413.280.
The types of “disability” contemplated by KRS 413.280
are conditions which would justifiably excuse the plaintiff from
filing a lawsuit because of a reduced capacity to maintain an
action, as, for instance, being an infant or of unsound mind,
KRS 413.170; death, KRS 413.180; absence from the state, KRS
413.190; injunction or other restraint, KRS 413.260; or citizen
of enemy country, KRS 413.300.3
Blindness and ambulation, while physical disabilities,
are not disabilities within the meaning of the term as used in
the area of limitations of action, and the statute of
3
The disability of coverture (See Hays v. Hay's Adm'r, 290 S.W.2d 795 (Ky.
1956) and Section 2525, Carroll's Kentucky Statutes (1930)) and the
disability of being an inmate of a penitentiary (See former KRS 413.310) have
been repealed.
5
limitations in this case was not tolled by these physical
disabilities.
For the foregoing reasons the judgment of the Fayette
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dan Duffy, pro se
Lexington, Kentucky
Donald P. Moloney, II
J. Peter Cassidy, III
Lexington, Kentucky
6
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