RUTLEDGE (ANGELA), ET AL. VS. MCKEE (CYNTHIA)Annotate this Case
RENDERED: SEPTEMBER 19, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
JOHNNY BURKHEAD, II;
ON DISCRETIONARY REVIEW FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 07-XX-000022
CYNTHIA MCKEE, ADMINISTRATRIX
OF THE ESTATE OF CAROL BURKHEAD
** ** ** ** **
BEFORE: MOORE AND THOMPSON, JUDGES; HENRY,1 SENIOR JUDGE.
HENRY, SENIOR JUDGE: Angela Rutledge; Darleen Burkhead; Johnny
Burkhead, II; and Sharon Burkhead appeal from an Opinion and Order of the
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky constitution and KRS 21.580.
Jefferson Circuit Court which reversed the Jefferson District Court, Probate
Division, upon the issue of whether they are entitled to the proceeds from a
wrongful death lawsuit involving their grandmother pursuant to the wrongful death
statute, Kentucky Revised Statutes (KRS) 411.130. In reversing the probate court,
the circuit court determined that the appellants were not entitled to a share of the
proceeds. For the reasons stated below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Carol Burkhead died intestate on September 3, 2001. She had five
children – Johnny Burkhead, Bobby Burkhead, Dennis Burkhead, Cynthia
Burkhead Mckee, and Angela Burkhead Decker. Johnny and Bobby predeceased
Carol. Johnny and Bobby’s surviving children are appellants Angela Rutledge;
Sharina Burkhead; Johnny Burkhead, II; and Darleen Burkhead.2
On May 22, 2003, Cynthia was appointed as Administrator of Carol’s
Estate. In her capacity as Administrator of the estate, Cynthia brought a wrongful
death action pursuant to KRS 411.130 against Mt. Holly Nursing Home based
upon the suspicion that Carol received negligent care while a resident there which
resulted in her death. The lawsuit was ultimately settled for $100,000.00. After
consultation with counsel, Cynthia distributed the net proceeds among herself and
her two surviving siblings, Dennis and Angela.3
The exact parent-child relationships are not more specifically stated in the record.
The siblings later decided to share one-quarter of the proceeds with Carol’s ex-husband, George
Burkhead, with each of the siblings also receiving a one-quarter share.
On June 2, 2006, Cynthia filed an informal settlement affidavit in
probate court, and the probate proceedings were accordingly concluded.
On November 29, 2006, Angela, Sharina, Johnny II, and Darleen filed
a motion in the probate court seeking to set aside the informal settlement, to reopen
the probate proceedings, and to obtain a per stirpes share of the Mt. Holly
settlement proceeds. On April 2, 2007, the probate court entered an order
requiring Cynthia to redistribute the Mt. Holly proceeds so as to provide for the
payment of per stirpes shares of the funds to Angela, Sharina, Johnny II, and
On April 24, 2007, the siblings filed a notice of appeal from the
probate court’s decision. They later filed a Statement of Appeal alleging the
probate court had erred in its determination that the appellants were entitled to a
share of the settlement proceeds. On July 12, 2007, the circuit court entered an
opinion and order reversing the probate court’s determination that the appellants
are entitled to a share of the settlement proceeds. The circuit court determined that
the plain language of KRS 411.130 provides that under the present circumstances
the whole of the wrongful death proceeds are to be distributed to Carol’s three
surviving children. The appellants filed a “motion to reconsider,” which was
denied by order dated August 30, 2007. This appeal followed.
DISTRIBUTION OF WRONGFUL DEATH PROCEEDS
The appellants contend that the circuit court erred in determining that
they are not entitled to a per stirpes share of the wrongful death proceeds. They
allege the per stirpes provisions contained in the descent and distribution rules as
set forth in KRS Chapter 391 should be applied in determining the distribution of
the funds. See KRS 391.020; 391.030; and 391.040. Under this theory, amounts
representing the shares belonging to their deceased fathers – Bobby and Johnny –
should pass to them per stirpes. See KRS 391.040.
Section 241 of the Kentucky Constitution provides as follows:
Whenever the death of a person shall result from an
injury inflicted by negligence or wrongful act, then, in
every such case, damages may be recovered for such
death, from the corporations and persons so causing the
same. Until otherwise provided by law, the action to
recover such damages shall in all cases be prosecuted by
the personal representative of the deceased person. The
General Assembly may provide how the recovery shall
go and to whom belong; and until such provision is made,
the same shall form part of the personal estate of the
deceased person. (Emphasis added).
Thus, the General Assembly is vested with the constitutional authority
to direct how the proceeds of a wrongful death recovery are to be distributed. The
General Assembly exercised that authority by enacting KRS 411.130, the wrongful
death statute. The statute states as follows:
(1) Whenever the death of a person results from an injury
inflicted by the negligence or wrongful act of another,
damages may be recovered for the death from the person
who caused it, or whose agent or servant caused it. If the
act was willful or the negligence gross, punitive damages
may be recovered. The action shall be prosecuted by the
personal representative of the deceased.
(2) The amount recovered, less funeral expenses and the
cost of administration and costs of recovery including
attorney fees, not included in the recovery from the
defendant, shall be for the benefit of and go to the
kindred of the deceased in the following order:
(a) If the deceased leaves a widow or husband, and no
children or their descendants, then the whole to the
widow or husband.
(b) If the deceased leaves a widow and children or a
husband and children, then one-half (1/2) to the widow or
husband and the other one-half (1/2) to the children of
(c) If the deceased leaves a child or children, but no
widow or husband, then the whole to the child or
(d) If the deceased leaves no widow, husband or child,
then the recovery shall pass to the mother and father of
the deceased, one (1) moiety each, if both are living; if
the mother is dead and the father is living, the whole
thereof shall pass to the father; and if the father is dead
and the mother living, the whole thereof shall go to the
mother. In the event the deceased was an adopted person,
“mother” and “father” shall mean the adoptive parents of
(e) If the deceased leaves no widow, husband or child,
and if both father and mother are dead, then the whole of
the recovery shall become a part of the personal estate of
the deceased, and after the payment of his debts the
remainder, if any, shall pass to his kindred more remote
than those above named, according to the law of descent
“A court may not interpret a statute at variance with its stated
language.” SmithKline Beecham Corp. v. Revenue Cabinet, 40 S.W.3d 883, 885
(Ky.App. 2001). The first principle of statutory construction is to use the plain
meaning of the words used in the statute. See Revenue Cabinet v. O'Daniel, 153
S.W.3d 815 (Ky. 2005); KRS 446.080(4). “[S]tatutes must be given a literal
interpretation unless they are ambiguous and if the words are not ambiguous, no
statutory construction is required.” Commonwealth v. Plowman, 86 S.W.3d 47, 49
(Ky. 2002). We lend words of a statute their normal, ordinary, everyday meaning.
“We are not at liberty to add or subtract from the legislative enactment or discover
meanings not reasonably ascertainable from the language used.” Commonwealth
v. Harrelson, 14 S.W.3d 541, 546 (Ky. 2000).
An examination of KRS 411.130(2) discloses that subsection (c) is
the applicable provision under the present circumstances. The provision provides
that “[i]f the deceased leaves a child or children, but no widow or husband, then
the whole to the child or children.” This is precisely the circumstances existing in
the present case. Carol left no husband (she was divorced from George Burkhead),
but she did leave children – Dennis, Cynthia, and Angela. Thus the statute
provides that “the whole” be distributed “to the child or children” – that is, Dennis,
Cynthia, and Angela in the case at bar. Accordingly, the circuit court correctly
determined that the probate court’s interpretation of the statute was in error.
In light of the plain language of the statute, we are unpersuaded by the
appellants’ argument that its provisions may be interpreted so as to provide for a
per stirpes distribution to them under the circumstances of this case, nor are we
persuaded that the per stirpes descent and distribution provisions of KRS Chapter
391 are applicable in the present wrongful death action. By its plain language KRS
411.130 overrides any contrary provisions contained in KRS Chapter 391.
The appellants also cite us to the following statement in Totten v.
Parker, 428 S.W.2d 231 (Ky. 1967): “[Moore v. Citizens Bank of Pikeville, Ky.,
420 S.W.2d 669 (1953)] and Ryburn v. First National Bank of Mayfield, Ky., 399
S.W.2d 313 [(1965)], are to the effect that anyone claiming as a beneficiary under
the statute of descent and distribution, which is embodied in KRS 411.130, must
show that the persons ahead of him in the order of taking are dead.” Id. at 237238. They argue that this utterance establishes that the descent and distribution
procedures contained in Chapter 391 are to be applied under the wrongful death
statute. We construe this statement as commentary upon the fact that the statute of
descent and distribution provisions of Chapter 391 are indeed embodied in
subsection (2)(e); however, that subsection of the statute is not applicable under the
present circumstances, and accordingly does not aid the appellants’ position.
The appellants also cite us to the anomalous inclusion of the phrase
“or their descendants” in KRS 411.130(2)(a). However, in the case at bar, as
previously noted, Carol did not leave a husband and KRS 411.130(2)(c) is directly
on point, and so the subsection is not pertinent to our review.
In summary, the circuit court correctly concluded that the siblings
were entitled to the whole of the Mt. Holly wrongful death settlement proceeds
pursuant to KRS 411.130(2)(c).
CIRCUIT COURT JURISDICTION
As we construe this argument, the appellants contend that the
appellees did not properly invoke the circuit court’s jurisdiction following the
adverse ruling by the probate court because they filed an “appeal” to the circuit
court rather than an original action. They state:
Pursuant to KRS 24A.120(2) district court has
jurisdiction over uncontested probate matters only.
Adversary proceedings shall be filed in Circuit Court in
accordance with the Kentucky Rules of Civil Procedure
and shall not be considered an “appeal.” KRS
When Judge Haynie ruled that KRS 411.130 mandated
inclusion of the Appellants as beneficiaries of the
wrongful death proceeds recovered by the estate of Carol
Burkhead the aggrieved party’s remedy was not to
“appeal” but rather to commence an adversary
proceeding in Circuit Court. The decedent’s personal
representative failed to do so.
KRS 391.035 provides: “if real or personal property
passes by the laws of intestate succession or under a will
to a beneficiary not named in the will, proceedings may
be had in the District Court to determine the persons
entitled to the property.”
KRS 391.035 provides for the District Court to enter a
judgment naming the persons entitled to share the subject
property or proceeds. The statute further mandates that
any aggrieved party may, not later than thirty (30) days
from the date of judgment, institute an adversary
proceeding in Circuit Court pursuant to KRS 24A.120(2).
We need not discuss in detail the potential procedural problems with
the proceedings below. However, we note the following.
First, the appellants’ filing in probate court was in the nature of a
contested matter. Thus, by application of their own argument as set forth above,
proper jurisdiction for their filing asserting a claim to the settlement proceeds
would have been in circuit court.
Second, while it is true that the siblings filed a “Notice of Appeal” and
set forth their arguments in a filing captioned “Statement of Appeal”; nevertheless,
Civil Rule 8.01 requires pleadings to contain "a short and plain statement of the
claim showing that the pleader is entitled to relief. . . ." “The principal objective of
a pleading is to give the opposing party fair notice of the essential nature of the
claim presented and the type of relief to which the claimant deems himself
entitled.” Lee v. Stamper, 300 S.W.2d 251, 253 (Ky. 1957). Thus assuming,
arguendo, that the appellants are correct that the siblings should have filed an
original action “adversary proceeding in Circuit Court pursuant to KRS 24A.120
(2)” rather than an appeal, we are persuaded that their filing gave the appellants
fair notice of the essential nature of the claim presented and the type of relief to
which they deemed themselves entitled.
In the same vein we note another problematic procedural issue
regarding the appellants’ invocation of the jurisdiction of the probate court to raise
their claim of an entitlement to a portion of the wrongful death proceeds. “[A]
recovery [under KRS 411.130] is not for the benefit of the estate, but is for the next
of kin as determined under the statute.” Moore v. Citizens Bank of Pikeville, 420
S.W.2d 669, 672 (Ky. 1967). “The statutory authority of the administrator, where
the decedent leaves any of the kindred named in the statute, is to sue for the benefit
of the next of kin. The administrator is merely a nominal plaintiff. The real parties
in interest are the beneficiaries whom he represents.” Vaughn's Adm'r v. Louisville
& N.R. Co., 297 Ky. 309, 179 S.W.2d 441, 445 (1944). We believe that in
situations involving KRS 411.130(2)(a) – KRS 411.130(2)(d) that the statute
contemplates the wrongful death proceeds to be paid directly to the beneficiaries as
defined under the statute without passing through the estate or the probate process.
Only under the circumstances described under KRS 411.130(e) do
wrongful death recovery proceeds become a part of the deceased’s estate. The
statute makes no similar provision under the present circumstances. Thus the
jurisdiction of the probate court to entertain the appellants’ motion for a share of
the wrongful death proceeds in the first place is questionable for this reason.
Based upon our disposition as described above, however, we need not further
address this issue.
For the foregoing reasons the judgment of the Jefferson Circuit Court
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas M. Denbow
Mat A. Slechter