JOEY ROBINSON v. MIKE TURNER; CAROLE TURNER; AND THE PRESBYTERIAN CHILD WELFARE AGENCY OF BUCKHORN, KENTUCKY, INC.
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RENDERED: MARCH 24, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001870-MR
JOEY ROBINSON
APPELLANT
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE DENISE DAVIDSON, JUDGE
ACTION NO. 02-CI-00407
v.
MIKE TURNER; CAROLE TURNER;
AND THE PRESBYTERIAN CHILD
WELFARE AGENCY OF BUCKHORN,
KENTUCKY, INC.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND TAYLOR, JUDGES; EMBERTON, SENIOR JUDGE.1
GUIDUGLI, JUDGE:
In this personal injury suit, Joey Robinson
has appealed from the Perry Circuit Court’s order denying his
renewed motion to amend his complaint to add The Presbyterian
Child Welfare Agency of Buckhorn, Kentucky, Inc., (hereinafter
“the Agency”) as an original defendant.
Because we agree with
the circuit court that Robinson’s claim against the Agency is
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.
barred by the one-year statute of limitations imposed by KRS
413.140, we affirm.
Robinson, who was born on February 7, 1984, entered
the foster care system in 1992 and was eventually placed with
the Agency.
For seven years, he lived in the home of Bill and
Kathleen Smith.
The Agency’s program provided for monthly
“respite” weekends for the foster parents, so during the month
of January 1998, Robinson spent his first, and only, weekend in
the home of Mike and Carole Turner (hereinafter “the Turners”).
During the afternoon of January 17, while Mike and his daughter
were sleeping and Carole was working outside of the home,
Robinson sustained a serious injury to his right hand when an M80 device exploded in his hand.
Robinson explained what
happened in his deposition testimony:
Well, I got up and was gonna go to the
bathroom, and them matches caught my eye.
And I saw a little purple thing over there
had a white wick on a shelf and I thought it
was a candle. I thought it was one of them
kind that smelled good, you know, like a
potpourri candle. And I got the match,
struck it – See, the matches was, you know,
alright, say here’s the kitchen sink, the
matches are right here, open to where I
could get ‘em, say, right over here’s the
shelf. It was on a shelf, had a white wick,
so I thought it was a candle. I picked it
up, you know, lit it, and it went spewing.
I got scared and tried to put it out, and
all of a sudden, before I knew what I was
gonna – what it done, it just – my hand blew
up.
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His right hand was mangled as a result of the blast injury, and
his ring and middle fingers as well as a portion of his thumb
were amputated.
Robinson went through several surgeries to
repair his hand, including skin grafting.
Robinson reached the age of majority on February 7,
2002, and on August 12, 2002, filed suit against the Turners.
In his complaint, he alleged that the Turners breached their
duty to supervise him and to provide him with a reasonably safe
environment when they allowed an explosive device to be placed
within his access.
He requested damages for pain and suffering
as well as the impairment of power to earn money.
The Turners
filed an answer in which they presented several affirmative
defenses, including Robinson’s failure to join all real parties
in interest and necessary parties.
In March 2003, in response to Robinson’s discovery
request, the Turners provided him with a copy of the Agency’s
“Code of Ethics for Therapeutic Foster Parents” that they had
entered into in 1995, as well as a copy of the Agency’s Foster
Parent Handbook/Manual.
Shortly thereafter, The Ohio Casualty
Insurance Company (hereinafter “Ohio Casualty”), which company
provided homeowner’s insurance for the Turners, moved the
circuit court to file an intervening complaint, seeking a
declaration of rights as to whether it was required to provide
coverage or a defense for the Turners in the present suit.
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Having apparently resolved those issues, Ohio Casualty later
filed a notice of dismissal, without prejudice, of its
intervening complaint.
On August 12, 2003, the circuit court signed and
entered an Agreed Order adding the Agency as a third-party
defendant.
The same day, the Turners filed a third-party
complaint against the Agency, seeking indemnification or
reimbursement for the full amount of any judgment awarded, or an
apportionment instruction, based upon the breach of the Agency’s
duty to inform them of Robinson’s dangerous tendencies.
In its
answer, the Agency asserted that the complaint should be
dismissed as having been filed outside of the applicable statute
of limitations.
Close to two months later, Robinson filed a motion
seeking leave to file an amended complaint, naming the Agency as
an original defendant.
He argued that discovery had revealed a
contract between the Turners and the Agency, the violation of
which caused him damage.
Robinson claimed to be a third-party
beneficiary of this contract.
The Agency objected, relying upon
the one-year statute of limitations found in KRS 413.140.
Robinson’s cause of action accrued, it stated, on February 7,
2002, when he turned eighteen years old.
The statute of
limitations expired one year later, meaning that his attempt to
file an amended complaint was several months too late.
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In
response, Robinson countered with the argument that because his
amended complaint was based upon breach of contract, the
fifteen-year statute of limitations found in KRS 413.090
applied.
In reply, the Agency again argued that the one-year
statute of limitations applied, as Robinson’s claim was for
personal injury.
On December 23, 2003, the circuit court
entered an order denying Robinson’s motion, holding that his
claim was controlled by the one-year statute of limitations
imposed by KRS 413.140, as his action was for a physical injury
caused by the negligent act of another.
Following the denial of this motion, the case
proceeded normally in the circuit court, and a trial date was
set for August 2004.
That July, the Turners and the Agency
entered into an agreement by which the Turners’ third-party
complaint against the Agency would be dismissed, although the
Agency would remain a party for purposes of apportionment.
The
Agreed Order was entered by the circuit court on July 26, 2004.
The record reflects that the next day, a letter to the circuit
court from Robinson’s counsel was filed, in which counsel
requested a hearing on the Agreed Order.
The letter also
described the dismissal as a collusive effort to limit the
amount of insurance available.
Robinson then filed a renewed
motion to file an amended complaint, arguing that he was a
third-party beneficiary to the contract between the Turners and
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the Agency, and adding the argument that he was a person of
unsound mind.
The Agency again objected, arguing that soundness
of mind was not the reason Robinson failed to timely file an
amended complaint, as he had previously argued that a fifteenyear statute of limitations applied.
Furthermore, the Agency
argued that Robinson failed to present sufficient evidence of
his unsoundness to establish that the statute of limitations
should be tolled.
The circuit court denied Robinson’s renewed
motion by order entered August 31, 2004, which was made final
and appealable.
This appeal followed.2
On appeal, Robinson presents four arguments.
First,
he argues that CR 14.01 permits him to assert any claim against
a third-party defendant, and that the circuit court does not
have any discretion to deny him the right to assert such a claim
once a third-party complaint is filed by a defendant.
Second,
he again raises his claim that his unsoundness of mind tolled
the statute of limitations.
Next, he raises a breach of
contract issue, arguing that he is the beneficiary of the
contract between the Turners and the Agency.
Finally, he
asserts that the discovery rule worked to delay the running of
the statute of limitations for his claim against the Agency
2
Robinson named Ohio Casualty as an appellee in his notice of appeal,
although that entity’s intervening complaint had been dismissed by the
circuit court earlier in the proceeding. Therefore, a three-judge motion
panel of this Court granted Ohio Casualty’s motion to be dismissed as a party
to the appeal on December 22, 2004.
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until he discovered he may have been injured by the Agency’s
conduct.
The Turners and the Agency address each of these
arguments in their respective briefs.
CR 15.01 provides that, following the twenty-day
period after a pleading is served, a party may “amend his
pleading only by leave of court or by written consent of the
adverse party; and leave shall be freely given when justice
requires.”
The decision whether to grant leave to amend is
within the discretion of the trial court, and will be disturbed
only if that discretion is abused.3
Furthermore, while
amendments are to be freely allowed, the trial court is
permitted to “consider such factors as the failure to cure
deficiencies by amendment or the futility of the amendment
itself.”4
Robinson’s first argument addresses the application of
CR 14.01, which he asserts requires a trial court to allow a
plaintiff the right to assert a claim once a third-party
complaint has been filed by a defendant.
The Agency first
addressed this argument in a motion to strike and dismiss
Robinson’s brief filed prior to the submission of this appeal,
arguing that Robinson failed to preserve this issue for review
3
M.A. Walker Co., Inc., v. PBK Bank, Inc., 95 S.W.3d 70, 74 (Ky.App. 2002).
4
First National Bank of Cincinnati v. Hartmann, 747 S.W.2d 614, 616 (Ky.App.
1988).
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by first raising it before the circuit court.
A three-judge
motion panel of this Court denied the motion, but stated that
the Agency could renew its argument in its brief, which it did.
Alternatively, the Agency argues that CR 14.01 does not allow
him to assert his claim where he failed to timely move to amend
his complaint.
The Turners simply argue the Agency complied
with the Rules of Civil Procedure by pleading a statute of
limitations defense in its Answer to the third-party complaint.
The law in this Commonwealth clearly provides that
this Court “is without authority to review issues not raised in
or decided by the trial court.”5
Furthermore, to be considered
on appellate review, an error “must be precisely preserved and
identified in the lower court.”6
Robinson never raised his CR
14.01 argument before the circuit court, meaning that it is
unpreserved and this Court has no authority to review it.
Therefore, we shall decline to review this unpreserved argument.
For his next argument, Robinson argues that the
statute of limitations was tolled pursuant to KRS 413.170(1), as
he was of unsound of mind, an argument he raised only in his
renewed motion to file an amended complaint.
He posits that a
person does not have to be adjudged insane to avail himself of
this tolling provision.
5
Both the Turners and the Agency argue
Regional Jail Authority v. Tackett, 770 S.W.2d 225, 229 (Ky. 1989).
6
Forester v. Forester, 979 S.W.2d 928, 931, (Ky.App. 1998), citing Skaggs v.
Assad, By and Through Assad, 712 S.W.2d 947, 950 (Ky. 1986).
-8-
that Robinson failed to introduce facts sufficient to establish
that the limitations period should be tolled.
KRS 413.170(1) provides:
If a person entitled to bring any action
mentioned in KRS 413.090 to 413.160, except
for a penalty or forfeiture, was, at the
time the cause of action accrued, an infant
or of unsound mind, the action may be
brought within the same number of years
after the removal of the disability or death
of the person, whichever happens first,
allowed to a person without the disability
to bring the action after the right accrued.7
In Rigazio v. Archdiocese of Louisville,8 this Court addressed
this issue, stating, “[t]he term ‘unsound mind’ within the
meaning of KRS 413.170(1) has been interpreted by our Supreme
Court to mean that the person claiming the disability must show
that he has been rendered incapable of managing his own
affairs.”
Furthermore, our Supreme Court made it clear in
Southeastern Kentucky Baptist Hospital, Inc. v. Gaylor9 that
“[o]nce the statute of limitations is raised, the burden falls
on the complainant to prove such facts as would toll the
statute.”
The only proof Robinson submitted consisted of
information extracted from social worker records dating from
June 17, 1997, through July 31, 2000, detailing behavioral and
7
While Robinson’s injury happened in 1998, there is no dispute that the
statute of limitations was tolled pursuant to that provision until he reached
his eighteenth birthday on February 7, 2002.
8
853 S.W.2d 295, 297 (Ky.App. 1993).
9
756 S.W.2d 467, 469 (Ky. 1988).
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school problems.
He also relied upon his own statement during
his deposition that an unidentified doctor told him he had the
mind of a three-year-old when he was thirteen.
Robinson did not
submit any type of medical records to support his claim that he
was ever of unsound mind.
As pointed out by the Agency, the
last date extracted from the social worker’s records was July
31, 2000, during the time he was still an infant and the statute
of limitations was tolled.
There is no evidence at all that he
was of unsound mind when his cause of action accrued and the
statute of limitations began to run.
Therefore, we agree with
the Turners and the Agency that the circuit court properly ruled
that the statute of limitations was no longer tolled once he
reached the age of majority.
Robinson’s third argument is that he was suing the
Agency as a third-party beneficiary of the contract between the
Turners and the Agency, for which a fifteen-year statute of
limitations applies.10
He relies upon Sexton v. Taylor County11
to support his proposition that the contract was made for his
benefit.
On the other hand, the Agency disputes Robinson’s
citation to Sexton, and relies upon the decision of the Sixth
Circuit Court of Appeals in Finck v. Albers Super Markets,12
10
KRS 413.090(2).
11
692 S.W.2d 808 (Ky.App. 1985).
12
136 F.2d 191 (6th Cir. 1943).
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which holds that a suit for physical injuries caused by the
negligent act of another must be brought within one year,
regardless of any contractual relationship that might exist.
The Turners argue that Robinson was merely an incidental
beneficiary of the contract, and therefore is not entitled to
sue for its breach.
We have considered the parties’ arguments, and have
determined that the Agency’s argument constitutes the correct
interpretation of the law.
In Finck, the plaintiff filed suit
for a physical injury he incurred after drinking from a soft
drink bottle containing bugs and other foreign substances.
While he sought to bring his suit under a statutory breach of
duty theory, for which a five-year statute of limitations would
apply, the court disagreed, holding that in Kentucky:
Suits for physical injuries caused by the
negligent acts of another or his agent must
be commenced within the period of one year
from the date of the alleged injury and the
fact that the parties stand in contractual
relations to each other or that the tortfeasor violates a statute causing the injury
does not operate to change the rule or
extend the time for the commencement of such
actions.13
In the present case, Robinson was suing for an injury to his
person.
It therefore follows that the one-year statute of
limitations provided for in KRS 413.140 applies.
13
Id. at 193.
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Furthermore,
we disagree with Robinson’s reliance upon Sexton, as that case
is based upon a contract claim rather than one for personal
injury.
Finally, Robinson argues that the discovery rule
applies in this case, so that the statute of limitations should
not have begun to run until he discovered that his injury may
have been caused by the Agency’s conduct.
Both the Agency and
the Turners argue that the discovery rule has not been extended
to this type of claim.
While KRS 413.140 provides for a discovery rule, such
a rule is limited in the negligence area to claims against
physicians, surgeons, dentists, or hospitals, solely.
This
Court addressed the discovery rule in Rigazio,14 noting that the
rule at first only applied to latent disease claims resulting
from an exposure to a harmful substance.
The rule was later
extended by statute to professional malpractice claims.
However, in that case the Court declined to extend the rule to
church abuse cases.
Later, in Roman Catholic Diocese of
Covington v. Secter,15 the Court noted that “[t]he courts in this
Commonwealth have been reluctant to extend the discovery rule
and have applied it narrowly.”
In Davis v. All Care Medical,
14
853 S.W.2d at 297.
15
966 S.W.2d 286, 289 (Ky.App. 1998).
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Inc.,16 the Supreme Court of Kentucky more recently refused to
extend the discovery rule against a company that provided the
plaintiff with a wheelchair which caused him to develop
decubitis ulcers.
As Robinson’s claim did not arise from a
latent disease or even from professional malpractice, we must
hold that the discovery rule does not apply to extend the
statute of limitations in this matter.
For the foregoing reasons, we conclude that the
circuit court did not abuse its discretion in ruling on this
matter.
Therefore, its order denying Robinson’s renewed motion
to amend his complaint is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Lawrence R. Webster
Pikeville, KY
BRIEF FOR APPELLEE, THE
PRESBYTERIAN CHILD WELFARE
AGENCY OF BUCKHORN, KENTUCKY,
INC.:
Brandon C. Jones
London, KY
BRIEF FOR APPELLEES, MIKE
TURNER AND CAROLE TURNER:
J. Dale Golden
Timothy C. Feld
Lexington, KY
16
986 S.W.2d 902 (Ky. 1999).
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