WILFORD M. HARRIS V. MARIA B. JACKSON, INDIVIDUALLY ET AL
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AS MODIFIED : MAY 24, 2006
RENDERED : MAY 18, 2006
TO BE PUBLISHED
,$UyrrMr Courf of
Re'
2004-SC-000121-DG
WILFORD M . HARRIS
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2002-CA-001573
CHRISTIAN CIRCUIT COURT NO . 00-CI-00409
MARIA B . JACKSON, INDIVIDUALLY
AND AS PARENT AND GUARDIAN OF
CHADD TYRESE MALIK DEVINE
JACKSON, JR.
APPELLEES
OPINION OF THE COURT BY JUSTICE SCOTT
AFFIRMING
The Appellant, Wilford M . Harris, deceased, moved for discretionary
review of a Court of Appeals decision which reversed a Christian Circuit Court
order dismissing the Appellee's action against him for failure to properly revive
the action against the Appellant's personal representative within one (1) year of
the Appellant's death pursuant to KRS 395.278. We granted discretionary review
pursuant to RC 76.20(1).
The issue presented is best phrased by Appellant, "[t]he issue to be
decided by the Court is whether the attorney for a deceased defendant has a
duty to disclose the death of his client to opposing counsel. In deciding this
issue, the Court will answer whether Appellant Wilford Harris, deceased, is
estopped from obtaining a dismissal of the claim for failure to timely revive a
lawsuit within one year from his death because his attorney did not give notice of
the death."
FACTS
On June 3, 1999, the Appellant Wilford M . Harris (Harris) and Appellee,
Maria B. Jackson (Jackson) were involved in an automobile accident in Christian
County, Kentucky, wherein Harris rear-ended Jackson . Jackson was pregnant,
full term, at the time of the accident . She thereafter delivered the child, Chadd
Jackson, Jr ., (Chadd), but alleges he suffered serious and permanent disabling
injuries as a result of the trauma from the collision .
On March 23, 2000, Jackson, both individually and as Parent and
Guardian of the infant, Chadd, filed this action in the Christian Circuit Court,
against Harris, alleging personal injury claims both on behalf of her son and
herself . Harris was insured by State Automobile Mutual Insurance Company
(State Auto), under liability limits of $100,000.00 per person and $300,000 .00 per
accident . The defense of the claim was assigned to the Honorable W. Douglas
Myers (Myers) of Hopkinsville, Kentucky, while the Appellee's plaintiff claim was
handled by the Honorable Blaise E. Ferraraccio (Ferraraccio) and Steven C.
Girsky (Girsky), both of Clarksville, Tennessee .
The litigation proceeded as would be expected, until May 25, 2001, with
various pleadings and motions having been filed, interrogatories mailed and
answered, as well as discovery depositions noticed and taken . Harris however,
died on May 25, 2001 .
At no time after this date, up until the motion to dismiss for lack of revivor
was filed, was the Appellee, or her counsel, notified of Harris's death. This
notwithstanding, significant activity in the case continued to occur, ostensibly on
behalf of Harris (the client), albeit he was deceased .
Harris's State Auto policy, part E(B)(Duties After Accident), provided "a
person seeking any coverage must cooperate with us in the investigation,
settlement or defense of any claim or suit." Part A(A)(Liability Coverage) of the
policy, provided, in pertinent part, "we will pay damages . . . for which any
`insurer' becomes legally responsible because of an auto accident . . . . We will
settle or defend, as we consider appropriate, any claim or suit asking for these
damages . In addition to our limit of liability, we will pay all defense costs we
incur. Our duty to settle or defend ends when our limit of liability for this
coverage has been exhausted ." (Emphasis added).
Aside from normal phone and personal conversations, e-mails and
correspondence between counsel, the following litigation activities ostensibly
occurred on behalf of Harris after his death :
1.
The parties scheduled a mediation conference for September 7,
2001 . Myers attended as representing Harris, along with Bob Crotinger, State
Auto's claims representative . Settlement offers were made by State Auto,
however no settlement was reached between the parties .
2. Following the unsuccessful mediation, Jackson's counsel
noticed a motion for trial for November 14, 2001 . However, Jackson's counsel
could not attend and instead, coordinated with Myers for his office to attend the
hearing for all parties . Jackson's counsel gave him sixty-eight (68) days during
the months of January through May of 2002 for which Jackson's counsel would
be available for trial. An attorney from Myers's office did attend and manage the
hearing and the matter was set by the Christian Circuit Court for pretrial on June
26, 2002 and trial for August 5-7, 2002. Paragraph three (3) of the Christian
Circuit Court's order established that:
Discovery Compliance and witness disclosure shall be
accomplished as quickly and efficiently as possible, with
utmost good faith expected of counsel . Discovery/disclosure
shall be pursed in a manner that does not delay resolution of
the case or cause postponement of the trial. All disclosures
anticipated under the civil rules shall be made sufficiently in
advance of the pretrial conference to allow meaningful
utilization by the other side. All discovery shall be completed
at least ten days prior to the pretrial conference . Failure to
file complete, accurate and timely information or failure to
participate in discovery/disclosure as set out above may
result in sanctions of the type contemplated by CR37.02.
(Emphasis added) .
No notice was given at the pretrial conference, either to Jackson, her counsel, or
the court, that Harris had died six months earlier.
3.
Next on May 3, 2002, Myers served notice of an independent
medical examination for Chadd on June 3, 2002, by Dr. Dennis O'Keefe in
Bowling Green, Kentucky . The I.M .E. notice, noted the examination would be "at
the expense of defendant Wilford M. Harris."
4. Then on May 9, 2002, Myers contacted the Kentucky Ethics telephone
hotline personnel, per SCR 3.350, seeking advice in regards to his duties of
disclosure. He was advised he did not have to take affirmative action adverse to
his client, as long as his conduct did not amount to a fraud upon the court.
5. Myers followed the telephone conversation with a letter to the same
ethical advisor on May 14, 2002. In this letter, Myers stated :
This letter is in follow-up to our conversation on May 9, 2002.
As I indicated to you, I am involved in representing the
defendant in this case. In this case, the defendant died
approximately eleven months ago. To date, the plaintiff has
made no effort to revive the claim . Notice of my client's
death was published in the local newspaper. I have done
nothing to conceal the death of my client from plaintiff's
counsel, nor have I, in any way, misrepresented facts which
would lead counsel to believe that he is still alive.
As I indicated to you in our telephone conversation, I am
concerned with my ethical responsibilities in this case. While
I hate to see another lawyer placed in the difficult position
which I think is likely to develop, I sense that I have a duty to
my client, and his estate, to remain silent and permit this
case to take a posture where it can be dismissed because
the action was not revived.
I would appreciate any insights that you have with respect to
the ethical implications of this situation . (Emphasis added).
The official ethics response was, as follows:
This responds to your letter of May 14, a copy of which is
attached .
You ask if you must tell the opposing attorney of the death of
your client, so that the opposing attorney may react to
deadlines, etc.
It is my opinion that you do not have to take affirmative
action adverse to your client . However, I remind you of Rule
of Professional Conduct 3.3(a)(2), which forbids your failure
to disclose a material fact when disclosure is necessary to
prevent a fraud upon the tribunal. If you are asked or
otherwise required to respond to the court in this matter, you
cannot misrepresent, by statement or by silence, that your
client is deceased. (Emphasis added) .
6. On May 23, 2003, Myers noticed the deposition of Jackson
to be taken at his offices in Hopkinsville, Kentucky on June 20, 2002.
7. Thereafter, and sometime prior to June 3, 2002, Myers, as counsel for
Harris, prepared and tendered an agreed order between all counsel,
rescheduling the pretrial conference from June 26, 2002 to July 10, 2002.
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8. Thereafter on June 10, 2002, Myers filed a Motion to Dismiss on
behalf of the "defendant Wilford M. Harris, now deceased, . . ." seeking the
dismissal of the action based upon the fact that Harris had died on May 25, 2001
and no revivor had been made . Attached to the motion was a copy of Harris's
obituary, from Myers's file, which had appeared a year earlier in the local
newspaper, The Kentucky New Era . Jackson responded with a Memorandum
asking that the defendant be estopped from asserting limitations under KRS
395 .278 due to the concealment of the fact of death .
By order entered July 10, 2002, the court dismissed the plaintiff's claims,
for failure to revive pursuant to KRS 395 .278 . To this date, no estate has been
opened for Harris, nor has any personal representative been appointed .
QUESTIONS RELATING TO JURISDICTION
This court can get all tied up in questions and answers regarding the
court's jurisdiction in this matter, even to the point of questioning how any
counsel could appear and file motions, briefs and a petition for discretionary
review for a client that has been deceased for several years . See Kentucky Bar
Ass'n v. Geisler, 938 S.W.2d 578 (Ky. 1997)("When . . . death occurs, however,
the lawyer ceases to represent that identified client ."), see also, Brantley v.
Fallston General Hosp. Inc . , 333 Md . 507, 636 A.2d 444 (Md . App. 1994)(where
counsel's authority to file an appeal terminates upon death of client), Earls v.
Farmers Production Credit Ass'n ., 763 S .W .2d 694, 695 (Mo. App . 1988)(where
the court held the capacity to be party appellant or respondent reposes only in
persons in being), and Fariss v. Lynchburg Foundry, 769 F.2d 958 (4th Cir.
1985)(where attorney's agency to act ceases with the death of client and he has
no power to continue or terminate an action on his initiative) .
However, as the parties have not made a point of it, neither shall we.
Daniel v. Fourth & Market, Inc . , 445 S.W.2d 699, 700 (Ky. 1968)("We shall also
overlook, since no one seems to have made a point of it, the fact that the appeal
is prosecuted in the name of [Wilford M. Harris], the decedent, who no longer
exists . . . ...) . Although we demand strict adherence to our jurisdictional rules
regarding "timeliness" e .g,; Davidson v. Davidson, 344 S.W.2d 823 (Ky. 1961),
and "finality of orders," etc . Huff v . Wood-Mosaic Corp . , 454 S.W .2d 705 (KY.
1970) - "[i]n fact, we are required to do so," Central Adjustment Bureau, Inc. v.
Ingram Associates, Inc. , 622 S.W.2d 681, 683 (Ky. App. 1981) -- we have not
always acted "sua sponte" as to jurisdictional questions regarding defects in
parties where, (1) we were otherwise assured that a "real party in interest" was
providing appropriate "virtual representation," (2) the matter presented was of
importance to reach at the time presented, and (3) the parties did not address the
defect .' Cf. , Nationwide Mutual Ins. Co. v. Hatfield, 122 S.W.3d 36, 45 (Ky. 2003)
(Cooper, J ., dissenting) ("[N]o personal representative has ever entered an
appearance on behalf of Mrs. Hatfield's estate, nor was an appeal filed on behalf
of her estate . The plurality opinion simply ignores these jurisdictional
deficiencies .") (Citations omitted) .
In Combs v. Eversole , 292 Ky. 135,166 S.W .2d 280, 281 (Ky. 1942), we
dismissed the appeal on Appellee's motion, stating "[o]nly the name of the dead
' Appellant did allude to the defect in the parties in a response to Appellee's
motion to abate in the Court of Appeals, but only as a counter-point response to
arguments made by Appellee for abatement . No motion to dismiss for defective
parties has been made .
man appears as the appellee . Hence, it would be idle to express an opinion on
any of the questions sought to be raised, since no one would be bound thereby ."
However in Combs, the matter had been previously revived against the
deceased heirs and real representatives, but none were named in the appeal .
Combs involved the validity of a fraudulent conveyance between the particular
parties .
In Turner v. Seale , 182 S.W.2d 953 (Ky. 1944), we also noted, "[o]nly the
name of the deceased . . . appears in the statement of appeal . . . . No appellee
being before this court, there is no one to be bound by any decision we might
make on the questions sought to be raised ." The appeal was dismissed on
motion . Again, in Turner, the matter had also been properly revived against the
Appellee's real representatives -- yet she was not named as an Appellee -- her
deceased husband was. Again, the subject matter involved a fraudulent
conveyance between the particular parties .
Here however, the resolution of the question presented on this appeal
affects not only the parties (or their possible successors) and State Auto - but
our entire Kentucky bar . Moreover, to date there is still no one to serve for
revivor, as no estate, or personal representative, or administrator, has been
appointed for Harris.
Years ago, we determined that in tort cases an injured person could not
sue the negligent party's insurance company, except in cases of insolvency or
bankruptcy . Cugay v. General Accident Fire & Life Assurance Corp., Ltd. , 378
2 Appointment of administrators by opposing parties with little, no, or inaccurate
family information, and with little time remaining, is, itself fraught with danger in
limitation questions . See KRS 395.390(1), Cosby v. Hays , 257 S .W.2d 575 (Ky.
1953, and Fentzka's Adm'r v. Warwick Const., 172 S.W. 1060 (Ky. 1915) .
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S .W.2d 629, 632 (Ky. 1964) . We did this knowing the burden of the defense of
the cases, and the primary obligor for the claims or damages would be the
carrier . But, we made the decision with the further belief, that the fact of
insurance coverage was not germaine to the issue of liability or the amount of
damages to be paid .3
CR 17.01, provides, in pertinent part:
"Every action shall be prosecuted in the name of the real
party in interest, but a personal representative . . . may bring
an action without joining the party or parties for whose
benefit it is prosecuted . Nothing herein, however, shall
abrogate or take away an individual's right to sue ."
The real party in interest is one who is entitled to the benefits of the
action upon the successful termination thereof. Stuart v. Richardson , 407
S .W.2d 716, 717 (Ky. 1966) ; Brandon v. Combs, 666 S.W.2d 755, 759
(Ky. App. 1983) . A real party in interest then, is a person, or entity, which
wins, or loses, dependent upon the resolution of the questions . Thus,
although not a named party in the action, State Auto, who has the
insurance coverage for $200,000.00 of potential damages, along with the
obligation of defending the claim, with its attendant costs, is a real party in
interest, albeit not a recognized party under our long standing precedent.
In fact, we have to be honest with ourselves and acknowledge that
the real party, who defended this case during Harris's life, is the same
party that defended this case after his death, and on this appeal - State
3 However, an emerging "truth in trial" principle questions the fairness of this
belief . "At trial, however, [Indiana Insurance] was not identified and the case was
presented as if the only parties were the plaintiff, Earle and the defendant, Cobb.
Such a trial is fundamentally misleading to the jury . . . ." Earle v. Cobb , 156
S.W.3d 257, 259 (Ky. 2004).
Auto. We must also acknowledge that State Auto has the same interest in
protecting its obligations, or risks, under its policy as did Harris in
protecting himself, and as would his estate . "[I]f an appellee dies before
submission, the appeal is abated, and a revivor is necessary. It may be
otherwise, if there are other appellees surviving who have a real interest
and the case may be decided without prejudicing the rights of successors
of the deceased party." Mason v. Anderson , 242 S .W .2d 1011 (Ky. 1951).
The doctrine of virtual representation is one of long standing,
developed as a rule of the common law, and founded upon
convenience and necessity . It acknowledges the
impracticability, in certain types of proceedings, of making ail
persons parties who might have a contingent or remote
interest in the subject matter. It recognizes that a party
joined in a law suit may effectively represent another not so
joined, where they have a common interest and the former
may be depended upon to present the merits of the
controversy which would protect the rights of the latter.
Carroll v. First Nat. Bank & Trust Co. of Lexington, 312 Ky. 380, 381, 227
S .W .2d 410 (Ky.1950) .
"From the foregoing it appears immaterial whether or not the person
virtually represented is living [or in existence] . The determining factor is such
identity of interest as to give reasonable assurance that the contingent rights of
the absent party will be protected by the person joined in the suit." Id. at 411 . "[I]t
is a rule that one who participates in litigation, and openly and actively assumes
and manages its prosecution or defense, although a stranger to it, is concluded
by the judgment rendered therein ." Metropolitan Cas. Ins. Co. of New York v.
Albritton , 214 Ky. 16, 282 S.W. 187,189 (Ky. 1926) .
The doctrine under which a person not a party to a suit may
be bound by a judgment therein is not strictly res judicata . . .
. It is based upon privity between a party to the original suit
and the person who should be bound by the judgment . This
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privity is in turn founded upon such an identity of interest that
the party to the judgment represented the same legal right.
The. rule is essentially one of justice and fairness . . . .
State Farm Mut. Auto. Ins. Co. v . Shelton, 368 S.W.2d 734,
737 (Ky.1963) .
The doctrine of virtual representation, if adequately assured, meets the
standards of "due process ." Hansberry v. Lee , 311 U.S . 32, 43, 61 S.Ct. 115,
119 852 L. Ed . 22 (1940) .
Here, State Auto, with its liability coverage, has similar, if not greater
exposure than the decedent's estate . It has the duty to defend, and pay the
defense's costs, as well as the right to settle as it "consider[s] appropriate ." In
every sense of the word, State Auto is a "real party in interest" under RC 17 .01,
except for the protection afforded it from third-party tort claims . Cf. , Cur)gv 378
S.W.2d at 632. Thus, we are assured, as has been demonstrated by the
excellent briefs and arguments, that adequate "virtual representation" has been
provided .
Moreover, the ultimate issue at hand, as framed by the Appellant's brief,
seems to us to be at this time a matter of great import to the counsel of this
Commonwealth. "The right to prescribe . . . rules as are necessary to qualify,
regulate, and control attorneys as officers of the court is a right of selfpreservation ." American Ins . Ass'n v. Kentucky Bar Ass'n . , 917 S.W .2d 568,
571 (Ky.1996), (citing Ratterman v. Stagleton , 371 S .W.2d 939, 941 (Ky. 1963)) .
The dissent however, would have us ignore the interplay of Cuppv , as well
as, the importance of the ethical issue presented, in favor of deciding the case on
4 It may be assumed that the decedent had very little estate since no estate, or
personal representative, has ever been opened or appointed to handle the
devolution of any wealth .
an issue neither party has raised . For the reasons indicated, we are not inclined
in this instance to act "sua sponte" in regards to relief that was not requested by
the parties .
REVIVOR UNDER KRS 395.278
KRS 395.278 provides, "[a]n application to revive an action in the name of
the representative or successor of a plaintiff, or against the representative or
successor of a defendant, shall be made within one (1) year after the death of a
deceased party ." CR 25.01, which acts in conjunction with KRS 395 .278,
provides, in pertinent part: "(1) if a party dies during the defense of an action and
the claim is not thereby extinguished, the court, within the period allowed by law,
may order substitution of the proper parties . If substitution is not so made the
action may be dismissed as to the deceased party." However, "[t]he word `may,'
as it appears in CR 25 .01(1) does not allow for discretionary dismissal, but
provides for an exception in those instances in which the right to have the action
dismissed has been lost, such as by waiver, estoppel, or consent. Hammons v.
Tremco, Inc., 887 S.W.2d 336, 338 (Ky. 1994)(citing Snyder v. Snyder, 769
S.W.2d 70 (Ky. App. 1989)) ; see also, Daniel , 455 S .W. 2d at 699.
"Within this jurisdiction, it is a well-recognized rule of law that any statute
relating to the revivor of an action is a statute of limitation, rather than a statute
relating to pleading, practice, or procedure." Mitchell v. Money, 602 S.W .2d 687,
688 (Ky. App., 1980) . Being of limitations itself, estoppel may, under the
appropriate circumstances, operate to bar assertion of a limitations defense, e&
.
Burke v. Blair, 349 S .W .2d 836, 838 (Ky. 1961), Hazel v. General Motor's
Corporation , 863 F. Supp. 435, 439 (W.D. Ky. 1994), or toll the running of the
statute of limitations during the period of the conduct. Munday v. Mayfair
Diagnostic Lab, 831 S .W .2d 912, 915 (Ky. 1992) .
"Although a party may waive its right to raise the defense of lack of
jurisdiction over the person . . . it is not logical to suggest that such a waiver can
confer to a court jurisdiction where none, in fact, existed ." Mitchell, 602 S .W .2d
at 689; see also, Hammons , 887 S .W.2d at 338 . Estoppel however, unlike
waiver, operates differently . Cf., Hazel , 863 F.Supp. at 439 ; Munday , 831
S .W.2d at 915.
If the estoppel is operative, then the limitation has not run, or is barred
from assertion . In either case, CR 25.01 is then available and, "[t]he motion for
substitution may be made by the successors or representatives of the deceased
party or by any party, and, together with the notice of hearing, shall be served on
the parties as provided in Rule 5, and upon persons not parties as provided in
Rule 4 for the service of summons." CR 25.01, not the estoppel, gives
jurisdiction over a party's successor . And here, unlike Mitchell , su ra, initial
jurisdiction did attach, but was abated during the limitations period - and if the
estoppel is germiane -jurisdiction still exists in abeyance .
The Appellee argues that we interpret KRS 395 .278 and CR 25 .01 to have
an implied requirement of notice of death to trigger the running of the limitation
period, so as to be consistent with the Federal rule, FRCP 25 (a)(1), and our
surrounding sister states, e.g., Carter v. Burns, 332 Mo . 1128, 1138-39, 61 S .W.
2d 933 (Mo. 1933) ; Carroll Hardwood Lumber Company v. Stel2henson , 131
W .Va. 784, 51 S .W.2d 313, 315 (W.Va . 1949) . It has also been said that, "it is
equally plain that time does not run against the order to revive until there is some
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one representing the original defendant, against whom an order of revivor may
be had." Thomgson's Adm'r v. Williams , 86 Ky. 15, 4 S .W. 914, 916 (Ky. 1887) .
However, we are always reluctant to substantially amend our rules by
interpretation, CR87, and will not do so here .
DISCLOSURE OF DEATH
The art of practicing law is building, or defending, a case against the
adversary. While we do acknowledge that lawyers do not have a duty, except as
otherwise established, to practice the case for the opposing counsel -- this is still
an adversarial profession -- the esteem of the legal profession requires some
disclosures to meet the rules of professional ethics. Thus, "[t]his Court feels that
candor and honesty necessarily require disclosure of such a significant fact as
the death of one's client . . . . Standards of ethics require greater honesty, greater
candor, and greater disclosure, even though it might not be in the interest of the
client or his estate ." Kentucky Bar Association v. Geisler , 938 S.W.2d 578, 580
(Ky. 1997)(citing Virzi v. Grand Trunk Warehouse & Cold Storage Co. , 571
F.Supp. 507 (E .D. Mich . 1983)).
Moreover, we have specifically dealt with this issue in Geisler, supra, and
Gailor v. Alsabi , 990 S .W.2d 597 (Ky. 1999) .
"When a lawyer's client dies in the
midst of the settlement negotiations of a pending lawsuit . . . the lawyer has a
duty to inform opposing counsel and the Court in the lawyer's first
communications with either after the lawyer has learned of the fact." Geisler , 938
S .W .2d at 580 (citing ABA Standing Committee on Ethic and Professional
Responsibility, Formal Opinion 95-397 (1995)) . In Geisler , this Court adopted
ABA Formal Opinion 95-397 and summarized the rule in its opinion in the
following way:
The opinion determined that prior to death, a lawyer acts on
behalf of an identified client . When the death occurs,
however, the lawyer ceases to represent that identified
client . The ABA maintained that any subsequent
communication to opposing counsel with respect to the
matter would be the equivalent of knowing, affirmative
misrepresentation should the lawyer fail to disclose the fact
that she no longer represent the previously identified client .
Basically the ABA determined that a lawyer must inform her
adversary of the death of her client in her first
communication with the adversary after she has learned of
that fact. . . . Thus, the ABA concluded that a failure to
disclose the death of a client is tantamount to making a false
statement of material fact within the meaning of Model Rule
4.1 (a) (the precursor to our SCR 3 .130-4 .1) .
Id. a t 579. This Court further held, it "fails to understand why guidelines
are needed for an attorney to understand that when their client dies, they
are under an obligation to tell opposing counsel such information . This
seems to be a matter of common ethic and just plain sense." Id. at 580.
In this case, Myers did not disclose Harris's death until the period to revive
the action against Harris's estate had lapsed. Not only did he fail to disclose, he
continued to participate in discussions, negotiations, depositions, and other pre
trial activities, even with the court, as if Harris was still alive .
Ultimately he sought the advice of the KBA ethics hotline to clarify his
obligation to disclose Harris's death, revealing in a follow-up letter, "[w]hile I hate
to see another lawyer placed in the difficult position which I think is likely to
develop, I sense that I have a duty to my client, and his estate, to remain silent
and permit this case to take a posture where it can be dismissed because the
action was not revived." This action established two points; (1) Myers realized it
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was probable that opposing counsel would not pick up on his client's death, and
(2) he had, at the time, an ethical question about his own conduct in the matter.
Even so, the letter from the KBA ethics advisor unfortunately advised Myers that
he did not have to disclose the death . However, he was reminded that he
should take caution to follow Rule 3.3(a)(2), which forbids the failure to disclose a
material fact when disclosure is necessary to prevent fraud upon the tribunal
whether it be by statement or silence .
Thus the crux of our decision today is that Geisler may not be
distinguished on the basis it only involved the death of a plaintiff . The settlement
made therein was not attacked as fraudulent, compare Virzi v. Grand Truck
Warehouse and Cold Storage Co. , 571 F.Supp. 507 (D.C. Mich. 1983), and thus
it may be assumed the settlement made (though unaware of the death) was fair
for the liability and injuries involved . The import of Geisler is that disclosure of
such an important fact, such as the death of a client, is required . Thus, the
analysis of a death's effect may be made by all parties, as well as the court. With
as few civil trial days as a court actually has, once you deduct motion days,
holidays and days set aside for criminal or family matters, courts are very jealous
of wasting trial days on cases that will not be tried. Thus, candor with the court
promotes its efficiency as well. And, whatever may be said about the matter no one can be misled by the disclosure of death .
The death of Harris not only changed the identity of the defendant, it left
Myers without a party to represent in the action, as State Auto could not be made
5 We note that Myers professionally complied with SCR 3 .530(1) and that having
done so, SCR 3.530(3) is appropriately applicable . We surmise, however, that
the continuing distinction of Geisler on the significance of the death of an injured
plaintiff is the real root of the problem.
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a party . If Jackson had known about Harris's death, the procedures she needed
to follow to finish the case would have changed. Instead of continued
preparation for trial and communications to this effect with Myers, she would
have substituted Harris's personal representative to proceed correctly with the
case, even to the point of having an administrator appointed once appropriate
and accurate information to do so could be properly acquired by discovery or
court order. We believe she was misled in that respect .
We distinguish Gailor , where we held there was no duty to disclose the
death of a tortfeasor, as the person failing to disclose in Gailor was an insurance
claims adjuster, not an attorney . In Gailor we noted, "[w]hatever duties the Code
of Professional Conduct may impose upon licensed attorneys, it has no
relevance to the conduct of laypersons ." Gailor , 990 S.W .2d at 605. Here, we
are dealing with attorneys .
In closing this issue, we do not disparage Myers for his failure to disclose
Harris's death, because, although we now put the, distinction of Geisler to rest
and hold he had a duty to disclose, he properly obtained and followed an opinion
given to him by the KBA Ethics committee . However, this does not preclude us
from considering the effects of estoppel on KRS 395 .278 and any personal
representative of Harris.
ESTOPPEL
A party may be estopped from using a statute of limitations defense, if
there is "some act or conduct which in point of fact misleads or deceives the
plaintiff and obstructs or prevents him from instituting [or protecting] his suit while
he may do so." Gailor, 990 S.W.2d at 603 (citing, Munday v Mayfair Diagnostic
- 1 7-
Laboratory, 831 S.W.2d 912, 914 (Ky. 1992)) . Although, generally, the exception
applies only if there is an affirmative act by the party charged, "[a]n exception to
this general rule may be found if a party remains silent when the duty to speak or
disclose is imposed by law." Gailor at 603. Geisler so established this duty .
"Attorneys in circumstances similar to those at bar operate under a
reasonable assumption that the other attorney's client, whether a legal fiction or
in actual flesh, actually exists and, consequently, that opposing counsel has
authority to act on their behalf ." Geisler 938 S .W .2d at 580. (Emphasis added) .
Although Myers did not expressly deny the existence of Harris or
affirmatively misrepresent information to the tribunal, his actions over the course
of the one year period, as he said "on behalf of my client and his estate" are
sufficient to create an estoppel against asserting the statute of limitations as a
defense in this case, or in the alternative, its tolling . The estoppel is binding on
Harris's estate as a beneficiary of the conduct creating the estoppel, once CR
25.01 is applied in revivor and the abatement is removed . "One volunteering
services without an agreement for or [without] expectation of reward may be a
servant of the one accepting such services ." Pennsylvania Cas . Co. v. Elkins , 70
F .Supp. 155,158 (D .C . Ky. 1947) . "[O]ne may not stand by and make no
objection to a proceeding in court with the anticipation that if it results favorably
the benefits will be accepted, but that if it results unfavorably objections will be
made ." 31 C.J .S. Estoppel and Waiver § 136 (a)(1996) .
CONCLUSION
For the foregoing reasons, the opinion of the Court of Appeals is affirmed,
and the order(s) of the Christian Circuit Court dismissing Jackson's claim and
- 1 8-
denying revivor are vacated and this matter is remanded to the Christian Circuit
Court for further proceedings consistent with this opinion .
Lambert, C.J., and Wintersheimer, J., concur . Graves, J., concurs by
separate opinion. Roach, J ., dissents by separate opinion, with Cooper and
Johnstone, JJ ., joining that dissent.
COUNSEL FOR APPELLANT :
W. Jonathan Sweeten
Deatherage, Myers, Self & Lackey
701 South Main Street
P.O. Box 1065
Hopkinsville, Kentucky 42241-1065
Andrew C. Self
Deatherage, Myers, Self & Lackey
701 South Main Street
P .O. Box 1065
Hopkinsville, Kentucky 42241-1065
COUNSEL FOR APELLEE :
Walter Gregory Harvey .
Harned, Bachert & Denton, LLP
324 E 10th Ave
P .O. Box 1270
Bowling Green, Kentucky 42102-1270
Norman E. Harned
Harned, Bachert & Denton, LLP
324 E 10th Ave
P .O. Box 1270
Bowling Green, Kentucky 42102-1270
Steven Craig Girsky
4987 Shadowbend Circle
Clarksville, Tennessee 37043
RENDERED : MAY 18, 2006
TO BE PUBLISHED
,Suyrtttcr (9ourf of
txtfurkv
2004-SC-000121-DG
WILFORD M. HARRIS
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2002-CA-001573
CHRISTIAN CIRCUIT COURT NO. 00-CI-00409
MARIA B . JACKSON, INDIVIDUALLY
AND AS PARENT AND GUARDIAN OF
CHADD TYRESE MALICK DEVINE
JACKSON, JR.
APPELLEE
CONCURRING OPINION BY JUSTICE GRAVES
I concur with the majority .
However, I write separately to urge abandonment of the legal fiction that
insurance companies cannot be named as party defendants in automobile accident
cases . Cutting through the fog of rhetoric, State Auto hired Attorney Meyers to file an
answer on behalf of Wilford M. Harris. In reality, the attorney represented two entities
having the single nature of being a party defendant. Had State Auto initially been made
a party defendant along with Harris, this case could have proceeded fairly,
expeditiously, and economically as provided by law, thus avoiding the contortions that
these facts have generated . See Earle v. Cobb, 156 S .W.3d 257 (2005) (concurring
opinion by Justice Graves) .
AS MODIFIED : MAY 24, 2006
RENDERED : MAY 18, 2006
TO BE PUBLISHED
6;
VuPreme Courf of 'gtrufurhv
2004-SC-000121-DG
WILFORD M. HARRIS
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2002-CA-001573
CHRISTIAN CIRCUIT COURT NO. 00-CI-00409
MARIA B . JACKSON, INDIVIDUALLY
AND AS PARENT AND GUARDIAN OF
CHADD TYRESE MALIK DEVINE
JACKSON, JR.
APPELLEES
DISSENTING OPINION BY JUSTICE ROACH
Because I do not think we have jurisdiction over the dead, I dissent. The majority
opinion tips its "virtual" hand in its first sentence . It states that a dead person has
moved for discretionary review. How is this possible? Clearly, it is not. The fact Wilford
Harris is dead and no revivor has ever taken place disposes of this case .
After the trial court dismissed Appellees' claims, they took an appeal against
Wilford Harris, a dead person . A court cannot have jurisdiction over a decedent, and
action against a decedent is a nullity. See Gailor v. Alsabi , 990 S.W.2d 597, 600 (Ky.
1999) ("Mhe only defendant named in the complaint was deceased. Since the
complaint did not name a party defendant over whom the circuit court could acquire
jurisdiction, the complaint was a nullity."). This should be the end of the inquiry, period,
because it means there was no appellee before the Court of Appeals and there is no
appellant before this Court . Appellees were not without recourse . If Appellees wished
to toll the limitation period in KIRS 395 .278, they could have applied to be named the
personal representatives of Harris's estate pursuant to KRS 395 .040(2) or for the
appointment of a public administrator under KRS 395.400. But this was not done .
Thus, the Court of Appeals opinion must be vacated because the Court of Appeals
never had jurisdiction to hear this case.
I am baffled by the majority's choice of cases to support its opinion since those
cases directly demonstrate that the holding as to jurisdiction is wrong . For example,
Turner v. Seale, 298 Ky. 403,182 S .W.2d 953 (1944), holds:
Only the name of the deceased, W. C. Seale, appears in the statement of
appeal filed in pursuance of § 739 to the Civil Code of Practice and the
name of his real representative, Mary Burns Seale, against whom the
action was revived, nowhere appears in the statement of appeal . No
appellee being before this court, there is no one to be bound by any
decision we might make on the questions sought to be raised . Therefore,
the appeal must be dismissed.
Id. at 953. Dismissal is necessary for the simple fact that "there is no one bound by any
decision we might make" on the matter . Id . An earlier case, Combs v. Eversole , 292 Ky.
135, 166 S.W .2d 280 (1942), stands for the same enduring principle : "Only the name of
the dead man appears as the appellee . Hence, it would be idle to express an opinion
on any of the questions sought to be raised, since no one would be bound thereby." Id.
at 281 . The majority attempts to distinguish Turner and Combs from the present
by arguing that in those cases, the action had previously been revived but the appeal
had been pursued only in the name of the dead person. This distinction makes no
sense, for surely if we would dismiss a case where a personal representative
but was not named in the notice of appeal, we must also dismiss a case where a
personal representative has never even been appointed . This "distinction" actually
makes the current matter riper for dismissal since not only was a dead person the
named party, there currently exists no party who could have been named.
The majority does cite one case where our predecessor court, when none of the
parties raised the issue, chose to "overlook . . . the fact that the appeal is prosecuted in
the name of . . . the decedent, who no longer exists. . . ." Daniel v. Fourth and Market;
Inc. , 445 S .W.2d 699, 700 (Ky. 1968) . The majority fails to note, however, that the
Court in Daniel nonetheless affirmed the trial court's dismissal of the matter on the
ground that the action had not properly been revived . In other words, the decedent (or
rather, his estate), still lost the case. In this light, Daniel further supports dismissal of
this case, and shows why the majority's attempt to distinguish Turner and Combs-to
further wear an already well-worn phrase--makes a distinction without a difference .
Until today, the required procedure, as aptly stated by the Court of Appeals, was
crystal clear :
When read together KRS 395 .278 and CR 25 .01 require that when a
litigant dies, any action pending with respect to him must be revived
against that decedent's administration and the administrator must be
substituted as the real party in interest before the action can proceed.
Snvder v. Snyder , 769 S .W .2d 70, 72 (Ky. App. 1989) . Failure to comply with this
procedure allows only one result: dismissal .
These holdings are consistent with one of the foundations of our law. Courts do
not have jurisdiction to issue advisory opinions . As the Chief Justice recently explained
in a unanimous decision :
It is fundamental that a court must have jurisdiction before it has authority
to decide a case. Jurisdiction is the ubiquitous procedural threshold
through which all cases and controversies must pass prior to having their
substance examined. So fundamental is jurisdiction that it is the concept
on which first-year law students cut their teeth .
Wilson v. Russell , 62 S .W .3d 911, 913 (Ky. 2005). If no case or controversy exists, we
have no jurisdiction. See Commonwealth v. Maricle, 15 S.W.3d 376, 380-81 (Ky. 2000)
("Thus, the issue is not an actual case or controversy before this Court; the issue is not
ripe for review. To grant the Commonwealth's petition for a mandamus would require
the rendition of an advisory opinion, which is beyond the constitutional powers of this
Court. In re Constitutionality of House Bill No. 222 ., Ky., 262 Ky. 437, 90 S.W.2d 692,
693 (1936)."); Justice v. Commonwealth , 987 S.W.2d 306, 311 (Ky. 998) ("First, it is a
settled principle that this Court adjudicates only `cases' and `controversies ."'). Because
a dead man cannot be a party, there is no case for us to decide.
The majority opinion does not attempt to distinguish these cases. It simply
concludes, in what amounts to an admission that the majority opinion is primarily
intended to be advisory, that the question presented on appeal affects "our entire
Kentucky bar." Ante at
(slip op. at 8); see also ante at - (slip op. at 11) (declining
to "act `sua sponte"' to dismiss since the issue addressed in the parties' briefs (whether
counsel must give notification of client's death) "seems to us to be at this time a matter
of great import to the counsel of this Commonwealth"). With all due respect, the
importance of a matter is irrelevant to the question of jurisdiction . We have held :
This Court has repeatedly reaffirmed the proposition that it has no
jurisdiction to decide issues which do not derive from an actual case or
controversy. 30 Ky. Const. § 110, In re Constitutionality of House Bill No .
222, 262 Ky. 437, 90 S.W .2d 692 (1936) ("Power to render advisory
opinions conflicts with Kentucky Constitution Section 110 and thus cannot
be exercised by the Court")'. Recently, in Philpot v. Patton, Ky., 837
S.W.2d 491, 493 (1992), we reiterated that "[o]ur courts do not function to
give advisory opinions, even on important public issues, unless there is an
actual case or controversy."
Commonwealth v. Hughes, 873 S .W .2d 828, 829-30 (Ky. 1994).
The majority opinion further attempts to evade this reasoning by offering as
alternative grounds the absurd theory that Harris's insurance carrier, State Auto, is a
real party in interest. The majority further reasons-presumably so, since this notion is
not explicitly stated in the opinionthat because State Auto has abided by its
contractual duty to provide a defense, is a presently existing entity, and is a real party in
interest, it has provided "virtual representation" of Harris's estate . This proposition is not
supported by the law or the facts of the case. To begin with, State Auto, as the liability
insurer, is not a real party in interest. 'The generally accepted modem view is that the
real party in interest is the party (person) who, by substantive law, possesses the right
sought to be enforced ." 6 Kurt A. Phillips, Jr ., et al., Kentucky Practice : Rules of Civil
Procedure Annotated , Rule 17.01 cmt. 2, at 435 (6th ed. 2005). This is why our
predecessor court held that the liability insurance company of a defendant tortfeasor is
not a real party in interest to a lawsuit over the tortfeasor's liability, just as in this case.
See Maver v. Dickerson , 321 S.W.2d 56, 58 (Ky. 1959) ("Plaintiffs insist that as their
insurance carrier was forced to become a party plaintiff to the action, justice demands
their motion to make defendants' insurance carrier a party defendant should have been
sustained . Plaintiffs overlook the fact that their policy is what is generally known as
`collision' insurance, while defendants' policy covers what is known as `liability'
insurance . Plaintiffs' insurance carrier had incurred liability and paid same, while
defendants' insurance carrier would incur no liability until a judgment was rendered
against them ; therefore, it was not a real party in interest.").
Even assuming the validity of the majority's theory that a liability insurance carrier
is a real party in interest, such representation still requires that the real party in interest
who provides the virtual representation be a named party. Yet, as even the majority
-5-
admits, State Auto has never been named as a party. The majority's reliance on Mason
v. Anderson, 242 S .W .2d 1011 (Ky. 1951), and Carroll v. First Nat. Bank & Trust Co: of
Lexington, 312 Ky. 380, 227 S .W .2d 410 (1950), demonstrate its own faulty reasoning
in this regard. In both cases, the Court was faced with named parties that survived and
were in a position to protect the rights of the deceased . The majority even quotes, then
ignores, language demonstrating this requirement . Ante at
(slip op. at 10) (quoting
Mason , which noted that "there are other appellees surviving," 242 S .W.2d at 1011 ; and
Carroll, which noted "a party joined in a law suit may effectively represent another not
so joined," 227 S .W.2d at 410, and that "the contingent rights of the absent party will be
protected by the person joined in the suit," id. at 411).
Ultimately, the majority holds that a deceased person may pursue an appeal and
that he may do so by being virtually represented by a "party"--his liability insurance
carrier-that neither has been named nor can even be a party (i .e ., by being a real party
in interest) . No amount of virtual reality can make this holding fit within the law: Given
the majority's refusal to recognize this leads me to believe that it is only concerned with
achieving what it sees as a desirable result--allowing the Appellees to pursue their
claim at trial-a result that shall not yield even to Civil Rules, the laws of nature, or our
long-standing precedent. I cannot subscribe to such an opinion . Therefore, I dissent.
Cooper and Johnstone, JJ ., join this dissenting opinion .
,*uyrrmr Courf of ~ftrufurhV
2004-SC-000121-DG
APPELLANT
WILFORD M. HARRIS
ON REVIEW FROM COURT OF APPEALS
2002-CA-001573
CHRISTIAN CIRCUIT COURT NO. 00-CI-00409
MARIA B. JACKSON, INDIVIDUALLY
AND AS PARENT AND GUARDIAN OF
CHADD TYRESE MALIK DEVINE
JACKSON, JR.
APPELLEES
ORDER
On the Court's own motion, the opinion rendered May 18, 2006 in the above
styled case shall be modified by the substitution of new pages 1 and 5 of the Dissenting
Opinion by Justice Roach and substitution of new page 1 of the majority opinion as
attached hereto . Said modification does not affect the holding, and is made only to
reflect modification on page 5 of the dissenting opinion, lines 4 and 7, by changing the
word `Farm' to 'Auto' .
Entered : May 24, 2006.
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