GREYWOLF (SAMUEL LEE EDWARDS) VS. ROMAN CATHOLIC DIOCESE OF COVINGTON
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RENDERED: AUGUST 5, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000814-MR
SAMUEL LEE EDWARDS GREYWOLF
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D. PAYNE, SENIOR JUDGE
ACTION NO. 02-CI-02231
ROMAN CATHOLIC DIOCESE
OF COVINGTON
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, KELLER AND VANMETER, JUDGES.
DIXON, JUDGE: Appellant, Samuel Lee Edwards Greywolf, appeals from an
order of the Fayette Circuit Court granting summary judgment in favor of
Appellee, the Roman Catholic Diocese of Covington, finding that Greywolf’s
action against the Diocese was barred by the statute of limitations. Finding no
error, we affirm.
On May 30, 2002, Greywolf filed an action in the Fayette Circuit Court
against the Diocese alleging that he had been sexually abused by an unknown
priest in the mid-1970’s. Greywolf asserted claims for sexual molestation, battery,
negligent supervision and retention, reparations, breach of fiduciary duty, equitable
estoppel, and fraudulent misrepresentation. In an affidavit filed in January 2006,
Greywolf identified the priest as Father John Modica and stated that the abuse
occurred at the rectory of Mary Queen of the Holy Rosary Roman Catholic Church
in the fall of 1974, when Greywolf was seventeen years old. He claimed that
Father Modica sexually abused him after providing him with marijuana and
alcohol.
Following discovery, the Diocese moved for summary judgment on the
claims of sexual molestation, battery, and negligent supervision and retention
based upon Kentucky Revised Statutes (KRS) 413.140(1)(a), the one-year statute
of limitations applicable to actions for “an injury to the person of the plaintiff.”
The Diocese moved for summary judgment on the remainder of the claims based
upon insufficiency of the evidence. On April 16, 2010, the trial court rendered a
thorough opinion and order granting summary judgment in favor of the Diocese.
The trial court initially found that there was no genuine issue of material fact as to
the Diocese’s knowledge that Modica had engaged in childhood sexual abuse. In
fact, the evidence established that the Diocese concealed its knowledge of
Modica’s behavior no later than June 1975, when it received a letter from
Modica’s supervisor reporting numerous instances of abuse by Modica. As such,
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the trial court ruled that the statute of limitations for Greywolf’s claims was tolled
under KRS 413.190(2) as of that date.
Nevertheless, the trial court further determined that Greywolf failed to prove
that he acted with reasonable care and diligence to discover that he had a potential
claim against the Diocese during the twenty-seven years that had elapsed since the
alleged incident. The trial court cited to the 1993 extensive publicity in Lexington
surrounding the sexual abuse scandal involving Father Leonard Nienaber in the
Diocese of Covington and, more specifically, at Mary Queen of the Holy Rosary
parish where Greywolf was abused. Further, the court pointed out that during the
same time period, there was substantial coverage throughout Kentucky1 and
nationwide concerning sexual abuse scandals in the Catholic Church. The court
commented,
Greywolf testified that he did not regularly read daily
newspapers or watch television news broadcasts
throughout the 1990’s and does not do so today. He also
testified that, during the 26-year period when he was
allegedly obstructed from filing a claim against the
Diocese, he never saw any news reports of allegations of
sexual abuse by priests of the Diocese in Covington. The
fact that Greywolf claims not to have been actually aware
of the media coverage of the Diocese cases is irrelevant,
however. “Reasonable diligence” is an objective
standard. . . . The question is what a reasonable person
would have done, not what this plaintiff actually did.
Greywolf cannot establish that he acted with reasonable
diligence, since he did nothing to determine whether he
1
The Lexington Herald-Leader also devoted a substantial amount of coverage during this time
period to the criminal charges of Father Earl Bierman, another priest of the Diocese of
Covington, who was convicted of sexually abusing numerous students at Covington Latin School
in Northern Kentucky in the 1960’s and 1970’s. In April, October and November 1993, articles
reported that several of Bierman’s victims had filed civil suits against the Diocese of Covington.
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might have a claim against the Diocese. (Citation
omitted).
Following the entry of the trial court’s opinion and order, Greywolf appealed to
this Court.
A motion for summary judgment shall be granted “if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Kentucky Rules of Civil Procedure (CR) 56.03. The record “must be
viewed in a light most favorable to the party opposing the motion for summary
judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Further,
summary judgment is only proper “where the movant shows that the adverse party
could not prevail under any circumstances.” Id. (Citing Paintsville Hospital Co.
v. Rose, 683 S.W.2d 255 (Ky. 1985). The standard of review on appeal of a
summary judgment is whether the trial court correctly found that there were no
genuine issues as to any material fact and that the moving party was entitled to
judgment as a matter of law. CR 56.03; Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.
App. 1996). There is no requirement that the appellate court defer to the trial court
since factual findings are not at issue. Goldsmith v. Allied Building Components,
Inc., 833 S.W.2d 378, 381 (Ky. 1992).
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Greywolf argues on appeal that although the trial court was correct in ruling
that the statute of limitations was tolled under KRS 413.190(2), it erred in
essentially finding that the tolling ended in 1993. Greywolf maintains that he did
not regularly read daily newspapers or watch television news broadcasts during the
scandals involving Nienaber and Bierman. In fact, Greywolf claims that he was
not aware that he had a cause of action against the Diocese until he saw a
television advertisement for a Lexington attorney who indicated he was planning
on filing a lawsuit concerning sexual abuse by Catholic priests and requested that
anyone with knowledge of such contact him. Thus, Greywolf concludes that the
trial court erred in determining that he should have known he had a cause of action
against the Diocese prior to the time he filed his complaint. We disagree.
KRS 413.140(1)(a) provides that an action for personal injury must be
brought within one year from the date the cause of action accrued. KRS
413.170(1) acts to extend the limitations period if the person entitled to bring the
action was an infant or of unsound mind at the time the cause of action arose. That
person is permitted to bring the action within the authorized period of time after
the disability is removed. In this case, because Greywolf was a minor when the
alleged abuse took place, the statute of limitations on his claims began to run when
he reached his eighteenth birthday on June 16, 1975, unless the statute was tolled.
KRS 413.190 is a tolling statute, and applies to those situations where the cause of
action accrues when a resident is absent from the state or where the action was
obstructed. As applicable to this case, KRS 413.190(2) provides:
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When a cause of action mentioned in KRS 413.090 to
413.160 accrues against a resident of this state, and he by
absconding or concealing himself or by any other indirect
means obstructs the prosecution of the action, the time of
the continuance of the absence from the state or
obstruction shall not be computed as any part of the
period within which the action shall be commenced.
“Obstruction might also occur where a defendant conceals a plaintiff's cause of
action so that it could not be discovered by the exercise of ordinary diligence on
the plaintiff's part.” Rigazio v. Archdiocese of Louisville, 853 S.W.2d 295, 297
(Ky. App. 1993).
As the trial court herein noted, the seminal case in Kentucky on the tolling
of statutes of limitations in lawsuits brought by victims of childhood sexual abuse
is Roman Catholic Diocese of Covington v. Secter, 966 S.W.2d 286, 290 (Ky. App.
1998), wherein a panel of this Court held:
[W]here the law imposes a duty of disclosure, a failure
of disclosure may constitute concealment under KRS
413.190(2), or at least amount to misleading or
obstructive conduct. [Citation omitted]. KRS 199.335,2
the statute in effect when these incidents occurred,
imposed a legal duty on any person to report child abuse
to law enforcement authorities. The Diocese failed to
comply with this duty, and such failure constitutes
evidence of concealment under KRS 413.190(2).
In Secter, the Court determined that the Diocese of Covington obstructed the
prosecution of John Secter's cause of action by continually concealing the fact that
it had knowledge of the accused’s propensities well before the time that Secter was
2
KRS 199.335 has now been replaced by KRS 620.030.
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abused, and that the Diocese even continued to receive reports of sexual abuse of
other students during part of the time period in which Secter was abused. Id.
Notwithstanding the application of the tolling provision, the law still
imposes a duty on a plaintiff to exercise reasonable care and diligence in pursuing
a cause of action. For the defendant’s concealment to toll the running of the statute
of limitations, it must hide the plaintiff’s cause of action in such a manner that it
cannot be discovered by the exercise of ordinary diligence. Pursuant to Adams v.
Ison, 249 S.W.2d 791, 793 (Ky. 1952), the statute begins to run as soon as the
concealment is revealed, or the facts were or should reasonably have been
discovered. This is an objective test regarding when the plaintiff should be
charged with reasonably knowing that the concealment had been uncovered.
It is undisputed that Greywolf lived in Lexington during the 1993
publicity concerning the Diocese. We agree with the trial court that whether
Greywolf availed himself of the newspapers and television reports is irrelevant;
there is no dispute that he readily had access to such. Accordingly, even if the
Diocese concealed Modica’s sexual abuse for a number of years, Greywolf was
still under a legal duty to pursue his cause of action when facts or circumstances
provided him, or would have provided a reasonable person, notice that a claim may
exist. In other words, Greywolf simply could not remain oblivious to a cause of
action when information was available that it existed.
In reaching its decision, the trial court relied upon two unpublished decisions
of this Court – Azerot v. Roman Catholic Bishop of Louisville, 2005 WL 2899483
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(Ky. App. 2005)(2004-CA-000666-MR), and Moyers v. Roman Catholic Bishop of
Louisville, 2005 WL 3116116 (Ky. App. 2005)(2004-CA-001886-MR). In both
cases, panels of this Court held that the plaintiffs’ sexual abuse claims were barred
by the statute of limitations because they could not show they acted with
reasonable care and diligence to discover facts that would have supported their
causes of action against the Diocese in Louisville. Notably, in Moyers, the Court
held that widespread media coverage in Louisville and nationwide in 20023 was
sufficient to charge the plaintiff with constructive knowledge of events underlying
her cause of action despite her claim that she did not hear or see any of the media
reports. While neither Moyers nor Azerot are published decisions, we believe they
comport with Secter, and agree with the trial court that they are essentially
analogous to the instant case:
Applying the reasonable diligence requirement and the
reasoning in the Moyers and Azerot decisions to the facts
of this case, this Court concludes that Greywolf failed to
discharge his burden of coming forward with evidence that
he exercised ordinary care and diligence in pursuing his
purported claim against the Diocese.
Moreover, we find no merit in Greywolf’s argument that the trial court was
bound by the April 2002 date established in Moyers and Azerot and to “re-start the
statute of limitations any earlier . . . would contradict[] the Court of Appeals
precedent in those cases.” The specific date on which a plaintiff living in
Louisville should have become aware through Louisville media of a potential
3
The panels in both Moyers and Azerot ruled that the statute of limitations began running on
plaintiffs’ claims against the Louisville Diocese in April 2002.
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claim against the Archdiocese of Louisville has absolutely no relevance to when a
Lexington plaintiff should have become aware through Lexington media that he
had a claim against the Diocese of Covington. We believe the trial court
established the correct statute of limitations date with respect to Greywolf’s claims.
Finally, the Diocese presents several arguments concerning whether it
concealed its knowledge of Modica’s actions or whether it failed to comply with
the requirements for reporting child abuse. However, these issues were essentially
resolved against the Diocese in the trial court’s opinion and order and no crossappeal was filed. As such, we will not consider the Diocese’s arguments herein.
For the reasons set forth herein, we affirm the Fayette Circuit Court’s
Opinion and Order granting summary judgment in favor of the Roman Catholic
Diocese of Covington.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEFS FOR APPELLEE:
Charles W. Arnold
Lexington, Kentucky
Carrie K. Huff
Mark D. Guilfoyle
Crestview Hills, Kentucky
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