RONALD COX v. JOSH FERNIHOUGH; MARK FERNIHOUGH; AND KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY
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RENDERED:
JANUARY 6, 2006, 10:00
NOT TO BE PUBLISHED
A.M.
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001976-MR
RONALD COX
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS B. WINE, JUDGE
ACTION NO. 04-CI-000031
v.
JOSH FERNIHOUGH; MARK FERNIHOUGH;
AND KENTUCKY FARM BUREAU MUTUAL
INSURANCE COMPANY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, MINTON, AND TAYLOR, JUDGES.
TAYLOR, JUDGE:
Ronald Cox brings this appeal from an order
entered by the Jefferson Circuit Court September 3, 2004, and
made final by an order entered September 28, 2004, granting
summary judgment in favor of Josh Fernihough.
The summary
judgment dismissed the complaint as time-barred by Kentucky
Revised Statutes (KRS) 304.39-230.
We affirm.
On November 23, 2001, Josh and Ronald were involved in
a motor vehicle accident at an intersection in Louisville,
Kentucky.
According to the police report, Josh’s vehicle ran a
red light and collided with Ronald’s vehicle.
substantial injuries from the accident.
Ronald suffered
It is undisputed the
date of last payment of basic reparation benefits to Ronald by
his insurance carrier was on January 14, 2002.
On January 5, 2004, Ronald filed a complaint against
Josh’s father, Mark Fernihough, and Kentucky Farm Bureau
Insurance Company in the Jefferson Circuit Court.
The record
indicates that Mark was the actual owner of the vehicle at the
time of the accident.
The complaint, however, alleged that Mark
“carelessly and negligently operated a vehicle owned by his
father, Josh . . . .”
As Mark was an out-of-state resident,
Ronald obtained service upon him through our long-arm statute
(KRS 454.210) by serving the Kentucky Secretary of State.
The
service of process was sent to an address listed on the police
report; however, the return of service indicated that it was
“undeliverable as addressed.”
The address given by Josh to the
police and noted on the police accident report was 401 South
Madison, Oakland City, Indiana, 47660.
Mark and Josh had moved
from that address and resided at 211 East Brummitt Street,
Owensville, Indiana, 47665, since July 2002.
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On February 13, 2004, Ronald filed a motion for leave
to file an amended complaint.
The amended complaint named Josh
as a defendant; the court granted the motion. 1
answer on February 26, 2004.
Josh filed an
Thereafter, he filed a motion for
summary judgment upon the grounds that the amended complaint was
not filed within the two-year statute of limitations and that
the filing of the amended complaint should not have related back
to the filing date of the original complaint under Ky. R. Civ.
P. (CR) 15.03.
On September 3, 2004, the circuit court entered
summary judgment dismissing Ronald’s action against Josh as
being time-barred.
An order, subsequently entered on September
28, 2004, designated the earlier summary judgment as a final and
appealable under CR 54.02.
This appeal follows.
Ronald has raised several allegations of error in his
brief.
Initially, we observe the original complaint was filed
on January 5, 2004, and named Mark and Kentucky Farm Bureau
Insurance Company as defendants.
The original complaint was
timely filed and service of process was properly effectuated
upon Mark by serving the secretary of state under KRS 454.210.
This appeal does not concern the timeliness of the original
complaint; rather, it focuses upon the timeliness of the amended
complaint naming Josh as a defendant.
1
Paragraph 3 of the amended complaint continued to incorrectly allege that
Mark Fernihough was the son of Josh Fernihough and that Mark operated the
vehicle at the time of the crash on November 23, 2001.
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The amended complaint was not filed within the twoyear statute of limitations as set forth in KRS 304.39-230.
Ronald argues the late filing of the amended complaint was saved
by application of CR 15.03.
Ronald specifically argues the
amended complaint should relate back to the date of filing the
original complaint and, thus, was not time-barred by the statute
of limitations.
As noted, the circuit court entered summary judgment
dismissing Ronald’s action against Josh.
Summary judgment is
proper where there exist no material issues of fact and movant
is entitled to judgment as a matter of law.
Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991).
believe summary judgment was properly granted.
CR 15.03 states as follows:
(1) Whenever the claim or defense asserted
in the amended pleading arose out of the
conduct, transaction, or occurrence set
forth or attempted to be set forth in the
original pleading, the amendment relates
back to the date of the original pleading.
(2) An amendment changing the party
against whom a claim is asserted relates
back if the condition of paragraph (1) is
satisfied and, within the period provided by
law for commencing the action against him,
the party to be brought in by amendment (a)
has received such notice of the institution
of the action that he will not be prejudiced
in maintaining his defense on the merits,
and (b) knew or should have known that, but
for a mistake concerning the identity of the
proper party, the action would have been
brought against him.
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We
Because of the unique facts of this appeal, our analysis must
focus upon Subsection 2 of CR 15.03.
Under Subsection 2, an
amended complaint that adds a party relates back only if the new
party received notice of the action within the statute of
limitations and knew or should have known of the action but for
a mistake in identity of the proper party.
are to be strictly construed.
These requirements
Phelps v. Wehr Constructors,
Inc., 168 S.W.3d 395 (Ky.App. 2004).
The Kentucky Supreme
Court, in addressing the application of CR 15.03(2), has
emphasized the necessity that the new party have notice of the
proceedings during the relevant statute of limitations period:
However, the relation back rule mandates
that the party to be named in an amended
pleading knew or should have known about the
action brought against him. CR 15.03(2)(b).
Actual, formal notice may not be necessary.
Cf., Funk v. Wagner Machinery, Inc.,
Ky.App., 710 S.W.2d 860 (1986).
Nevertheless, knowledge of the proceedings
against him gained during the statutory
period must be attributed to the defendant.
CR 15.03(2)(b). As noted by the United
States Supreme Court in its review of the
federal relation back rule, [FN2] "(T)he
linchpin is notice, and notice within the
limitations period."
Nolph v. Scott, 725 S.W.2d 860, 862 (Ky. 1987)(footnote
omitted).
In the case at hand, Josh filed an affidavit with the
court.
Therein, Josh averred that he did not obtain actual
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notice of the pending lawsuit until February 24, 2004.
Thus,
the undisputed evidence indicates that Josh did not receive
actual notice of the lawsuit during the statute of limitations
period.
Ronald counters that actual notice is unnecessary.
Ronald attempts to impute Mark’s constructive notice of the
action to his son, Josh. 2
The notice requirement of CR 15.03(2) can be satisfied
by “actual, informal, imputed, constructive or a combination
thereof, within the imitations period.”
Halderman v. Sanderson
Forklifts Co. Ltd., 818 S.W.2d 270, 273 (Ky.App. 1991).
Notice
will be imputed from the original party to a new party where
there exists a “sufficient identity of interest.”
Id. at 273.
This sufficient identity of interest arises where the “legally
binding relationships between the original and added parties
imposed on the first-named party a duty promptly to apprise the
other laternamed [sic] entity of the lawsuit.”
Reese v. General
American Door Co., 6 S.W.3d 380, 382 (Ky.App. 1998).
We simply cannot say that a legally binding
relationship necessary to impute notice under CR 15.03 existed
between Mark and Josh.
Neither the familial relationship, as
father and son, nor the alleged “business relationship, as owner
and permitted driver,” is legally sufficient to impute notice.
2
As demonstrated by Mark’s affidavit, Mark’s knowledge of the lawsuit was
constructive as he was served through the secretary of the state and never
received actual service of process because of a change of address.
-6-
As such, we are of the opinion that Mark’s knowledge of the
lawsuit cannot properly be imputed to Josh under CR 15.03.
Ronald also argues that Mark’s insurance company,
State Farm Insurance Company (State Farm), had notice of the
complaint within the statute of limitations period and that such
notice may be imputed to Josh.
Ronald points out that a
representative of State Farm, Cody L. Tipton, was put on actual
notice of the filing of the complaint when a “courtesy copy” of
the filed complaint was sent to Tipton nine days prior to the
expiration of the statute of limitations.
Ronald contends that
Tipton was a common-law agent for the insured under the policy
of insurance; thus, notice may be imputed to Josh.
In Gailor v. Alsabi, 990 S.W.2d 597, 601 (Ky. 1999),
the Supreme Court rejected a similar argument and specifically
held:
Although Appellee's attorney filed in the
record a copy of a letter he mailed to
Allstate enclosing a copy of the complaint,
that letter is dated February 4, 1994, the
last day of the period of limitations, and
presumably did not arrive in Allstate's
office on the same day it was mailed.
(Unlike other correspondence from Appellee's
attorney to Allstate, this letter does not
contain the notation that it was sent "VIA
TELECOPIER.") Regardless, Allstate was not
named as a party defendant in either the
complaint or the amended complaint; thus, CR
15.03(2)(b) could not apply to it.
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As were the facts in Gailor, State Farm was not a named party in
the complaint or the amended complaint; consequently, CR
15.03(2)(b) has no application.
In sum, we hold that the circuit court properly
entered summary judgment dismissing Ronald’s complaint against
Josh as being time-barred under KRS 304.39-230.
We agree with
the circuit court that the provisions of CR 15.03 do not operate
to save the amended complaint.
For the foregoing reasons, the order of the Jefferson
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Paul V. Hibberd
PREGLIASCO·STRAW-BOONE
Louisville, Kentucky
Deborah Campbell Myers
Louisville, Kentucky
Steven D. Yater
Louisville, Kentucky
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