TERESA SMITH, ADMINISTRATRIX OF THE ESTATE OF DEMETRIUS KIRKSEY v. COMMONWEALTH OF KENTUCKY, JUSTICE CABINET, DEPARTMENT OF JUVENILE JUSTICE; AND BOARD OF CLAIMS
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RENDERED:
AUGUST 18, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001170-MR
TERESA SMITH, ADMINISTRATRIX
OF THE ESTATE OF DEMETRIUS
KIRKSEY
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
ACTION NO. 02-CI-00004
COMMONWEALTH OF KENTUCKY,
JUSTICE CABINET, DEPARTMENT
OF JUVENILE JUSTICE; AND
BOARD OF CLAIMS
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI AND SCHRODER, JUDGES; MILLER,1 SPECIAL JUDGE.
GUIDUGLI, JUDGE:
Teresa Smith, Administratrix of the Estate of
Demetrius Kirksey, appeals from the order of the Franklin
Circuit Court dismissing her petition for reconsideration of a
decision by the Kentucky Board of Claims.
The Board of Claims
had dismissed her claim because it had not been filed within one
1
Retired Judge John D. Miller, sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
year from the date of the incident which caused the damages.
We
reverse and remand.
On September 3, 1999, Demetrius Kirksey died while in
the custody of the Justice Cabinet, Department of Juvenile
Justice.
Demetrius was a minor residing at the Cardinal
Treatment Center in Jefferson County when he was found
unconscious, strangled by a shoestring in an unsupervised area
of the treatment center.
He died of his injuries and it was not
determined if his death was a result of suicide or homicide.
On
August 31, 2000, Teresa Smith, the mother of Demetrius, was
appointed administratrix of his estate by order of the Jefferson
County District Court.
On August 30, 2001, Smith filed an
action with the Board of Claims alleging Demetrius’s death was
caused by the negligence of the Department of Juvenile Justice.
The department filed a response and a motion to
dismiss contending that KRS 44.110(1) requires all claims to be
filed within one (1) year from the time the claim for relief
accrued.
The department also cited Gray v. Com., Transp.
Cabinet, Dept. of Hwy.2 as supporting the one year statute of
limitations.
The Board of Claims agreed with the Department of
Juvenile Justice and ordered Smith’s claim dismissed on November
15, 2001.
2
973 S.W.2d 61 (Ky.App. 1997).
-2-
Smith filed a Petition to Reconsider in the Franklin
Circuit Court on January 2, 2002.
The department filed a
response again arguing that KRS 44.110(1) and Gray, id.,
mandated a dismissal since Smith’s claim had not been filed
within one year of the incident causing the death.
No further
action was taken until the parties filed a notice of submission
of case for final determination on May 10, 2005.
On May 13,
2005, the Franklin Circuit Court entered an order dismissing
Smith’s petition for reconsideration.
This appeal followed.
On appeal, Smith argues that the Board of Claims and
the Circuit Court applied the wrong statute of limitations to
this case.
She contends KRS 411.130 and KRS 413.180 should
apply to the facts herein giving her one year from the date she
was appointed administratrix of Demetrius’s estate.
The Justice
Cabinet did not file a brief with this Court.
While this case was pending before the Franklin
Circuit Court, this Court rendered an opinion in Gaither v.
Commonwealth,3 which overruled Gray.
(Discretionary review was
denied by the Supreme Court of Kentucky on May 11, 2005, two
days before the circuit court entered its final order.)4
In
Gaither, this Court, sitting en banc, specifically held:
3
161 S.W.3d 345 (Ky.App. 2004).
4
We note that Smith did not cite to Gaither in her brief to this Court and
the Commonwealth failed to file a brief, which leads this Court to believe
-3-
Accordingly, we overrule our decision
in Gray and hold that wrongful death actions
against the Commonwealth may be pursued
before the Board of Claims by a personal
representative up to one year from the date
of the qualification of the personal
representative, with a maximum limitation of
two years from the date of the death. Since
Virginia Gaither’s claim before the Board of
Claims was timely under this standard, we
reverse and remand for further proceedings.5
This case is factually similar to Gaither.
Smith filed her
action with the Board of Claims within one year from the date
she was appointed administratrix and within two years from the
time the claim for relief accrued.
For the foregoing reasons, the order of the Franklin
Circuit Court is reversed and this matter is remanded to the
Board of Claims for further proceedings.
SCHRODER, JUDGE, CONCURS.
MILLER, SPECIAL JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT:
No brief for appellees.
R. Douglas Williamson
Louisville, Kentucky
that the Commonwealth was aware of Gaither. If this is the case, we admonish
the Commonwealth for its lack of candor with the Court.
5
Id. at 348.
-4-
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