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Estate of Wittich v. Flick

Supreme Court of Kentucky

June 15, 2017

THE ESTATE OF CHRISTINA WITTICH (BY AND THROUGH JUDITH WITTICH AND FREDERICK WITTICH IN THEIR DULY APPOINTED CAPACITIES AS CO-ADMINISTRATRIX AND CO-ADMINISTRATOR) APPELLANT
v.
MICHAEL JOSEPH FLICK APPELLEE

         ON REVIEW FROM THE COURT OF APPEALS CASE NO. 2009-CA-002378 FAYETTE CIRCUIT COURT NO. 08-CI-04294

          COUNSEL FOR APPELLANT: Roger Newman Braden Braden Humfleet & Devine, PLC

          COUNSEL FOR APPELLEE: Jennifer Zeigler Hoerner

          OPINION

          MINTON CHIEF JUSTICE

         A circuit court jury found Michael Joseph Flick liable for the wrongful death of Christina Wittich and awarded compensatory and punitive damages to her estate. The Court of Appeals reversed the resulting trial-court judgment and remanded the case to the trial court to dismiss the complaint. The Court of Appeals reasoned that the Estate's cause of action against Flick accrued no later than the date of his indictment for Wittich's murder, and by operation of KRS[1] 413.180, the Estate had until no later than July 18, 2007 to file its claim. And because the Estate failed to file this within that time frame, the Court of Appeals held that the trial court erred when it denied Flick's motion to dismiss the complaint. On discretionary review, we affirm the Court of Appeals.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Flick shot and killed Wittich on May 20, 2005. He was apprehended at the scene of the crime. The grand jury indicted Flick for Wittich's murder on July 18, 2005, and he was tried and convicted of Wittich's murder in January of 2008 and sentenced to life imprisonment.

         The Estate filed this wrongful-death action against Flick in August, 2008. Flick moved to dismiss the complaint as untimely filed, but the trial court denied the motion. At trial, the jury awarded the Estate $2, 900, 000 in compensatory damage and $53, 000, 000 in punitive damages.

         II. ANALYSIS.

         A. Standard of Review.

         A' determination of whether an action is barred by the statute of limitations is a question of law, which requires this Court to conduct a de novo review.[2]

         B. The Wrongful-Death Claim Was Untimely Filed.

         It is critical to identify the important dates before us, because the proper disposition of this case turns on these dates.

• On May 20, 2005, Flick killed Wittich.
• On July 18, 2005, the grand jury indicted Flick for Wittich's murder.
• On November 16, 2006, Wittich's parents, Judith and Fredrick Wittich, were appointed co-administrators of her estate.
• In January of 2008, Flick was tried and convicted of Wittich's murder.
• On August 22, 2008, the personal representatives of the Estate filed the complaint against Flick for the wrongful death of Wittich.

         The Estate brought its wrongful-death action under Kentucky's wrongful-death statute, KRS 411.130(1).[3] We have long held that wrongful-death claims fall within the purview of the limitations period established in KRS 413.140(1)(a) and must be commenced within one year after the cause of action accrues.[4] The Court of Appeals recognized in Gaither v. Commonwealth that wrongful death itself is not explicitly mentioned in KRS 413.090 to KRS 413.160, but KRS 413.140 and its "predecessors have been recognized for over 100 years as establishing a one year statute of limitations period on wrongful-death claims."[5] Recognizing that longstanding precedent in Kentucky has established that claims for wrongful death fall within KRS 413.140(1)(a), we observed, "[d]eath is simply the final injury to the person."[6]

         A wrongful-death claim is brought by the personal representative of the decedent under KRS 411.130(1).[7] Because a personal representative brings the claim on behalf of the decedent and wrongful death has been classified under KRS 413.140(1)(a), we are led to KRS 413.180, which sets out limitations for an action by or against a personal representative.[8] KRS 413.180 provides:

(1) If a person entitled to bring any action mentioned in KRS 413.090 to 413.160 dies before the expiration of the time limited for its commencement and the cause of action survives, the action may be brought by his personal representative after the expiration of that time, if commenced within one (1) year after the qualification of the representative.
(2) If a person dies before the time at which the right to bring any action mentioned in KRS 413.090 to 413.160 would have accrued to him if he had continued alive, and there is an interval of more than one (1) year between his death and the qualification of his personal representative, that representative, for purposes of this chapter, shall be deemed to have qualified on the last day of the one-year period."

         In Conner v. George W. Whitesides Co., we held that KRS 413.180(2) properly applies to wrongful-death claims.[9] We explained that "[i]t is reasonable to conclude the General Assembly intended for the personal representative to have the same amount of time to prosecute all claims resulting from injury, to the decedent including injuries resulting in death."[10] The Court of Appeals in the present case correctly noted that under Kentucky law, a wrongful-death claim commences upon the appointment of a personal representative or no longer than two-years from the date of death.[11] The Court of Appeals recognized that Wittich's wrongful-death claim was brought more than three years after Wittich's death, and almost two years after Wittich's parents were appointed administrators of her estate.

         With the timeline clearly showing the untimeliness of Wittich's wrongful-death claim, it becomes necessary to consider whether the running of time fixed by the existing statute of limitations was somehow ...


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