COMMONWEALTH OF KENTUCKY, ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES APPELLANT APPEAL FROM PIKE CIRCUIT COURT
HAROLD AND DORIS HARMON; RONALD ADKINS; BEVERLY ADKINS; HAROLD DEAN THACKER; GLORIA THACKER; ERVIN THACKER; KATHY THACKER; DONNIE ROWE; DONNA ROWE; KENNETH SHADRICK; CAROLYN SHADRICK; JOHN JONES; BETTY JONES; DONNA RODRIGUEZ; RONNIE G. THACKER; TERESA THACKER; BONNIE THACKER; LESTER "BO" SAYERS; EARL MEADOWS; BARBARA MEADOWS; JIMMY ONEY; WILMA ONEY; SHARON KEEN; PHILLIP R. SPEARS; BEATRICE G. SPEARS; HAROLD DWAYNE THACKER; FREDA THACKER; LARRY BLAIR; MARSHA BLAIR; WANDA THACKER; THOMAS G. THACKER; JOEY DAMRON; CLEARCY JANE DAMRON; LARRY A. EPLING; KATHY G. EPLING; TROY DAMRON; JOYCE DAMRON; ANDY THACKER; IRIS THACKER;MARVIN SELLARDS; ROBERT CAUDILL; JANIE CAUDILL; RONALD RAY BLAIR; ELIZABETH BLAIR; PHILLIP THACKER; GEORGE JUSTICE; LORI JUSTICE; LARRY CRAIG RAY; DONNA RAY; MARTHA ADKINS; LONNIE MATNEY; RHONDA MATNEY; J.D. ADKINS; BERTHA ADKINS; JAMES WAYNE BLACKBURN; RITA BLACKBURN; GAYNELL MEADOWS; ELIZABETH SELLARDS; TERRY RAYE ADKINS; CARTER BLANKENSHIP; BETTY BLANKENSHIP; CHRISTOPHER ROBINETTE; ELSTER GENE MORTON; STEVE ADKINS; TAMMY ADKINS; SHARON GALE JUSTICE; ROBERT FARMER; BRENDA FARMER; SHERRY JUSTICE;SHIRLEY THACKER; MICHAEL DAMRON; CINDY DAMRON; MICHAEL RILEY; DIANA RILEY; MIKE RYAN; BEVERLY RYAN; THOMAS THACKER; INGRID THACKER; MICHAEL BRANDON SPEARS; SHERRY SPEARS; AGNES BEECHIE; LENA RAE ROWE; SHARON KEEN AS ADMINISTRATRIX OF THE ESTATE OF EMIT THACKER, MYRNA L. SPEARS; LAYTON SAWYERS, JR.; TERRY RILEY; MARY RILEY; RONNIE D. THACKER; RUTH ANN THACKER; PATRICIA THACKER; GERALD MARTIN; GLADYS MARTIN; BETHANY L. STEPHENS; PATSY HILTON; JUDY IRICK; FRED BLAIR; DARYL DENISE TAYLOR; BEVERLY MEADE; DOUGLAS SAYERS; VICTORIA SAYERS; ERVIN FARMER; CHARLEEN FARMER; BRITTANY JUSTICE; RANDALL HILL; WENDELL ROWE; NORMA ROWE; BRIAN BLANKENSHIP; JESSICA BLANKENSHIP; NADINE MCCOY; STEPHEN COLEMAN; GARY A. SPEARS; KATHY SPEARS; DEWEY MCCOY; GEORGE KENNETH MCCOY, JR.; TIMOTHY MCCOY; TAMMY THACKER; DONALD HAMILTON; ANITA HAMILTON; JOYCE ANN BLANKENSHIP; AND LILLIAN DAMRON APPELLEES
FROM PIKE CIRCUIT COURT HONORABLE STEVEN D. COMBS, JUDGE
ACTION NO. 15-CI-01190
AND ORAL ARGUMENT FOR APPELLANT: Lance C. Huffman Frankfort,
FOR APPELLEES: Joe F. Childers Bethany Baxter Lexington,
AND ORAL ARGUMENT FOR APPELLEES: Ned Pillersdorf
BEFORE: ACREE, MAZE, AND NICKELL, JUDGES.
Kentucky Board of Claims dismissed the Appellees' tort
claims against the Energy and Environment Cabinet, Department
of Natural Resources (the Cabinet) as barred by the one-year
limitation contained in KRS 44.110. The Pike Circuit Court
reversed the Board's decision, finding the Appellees'
claims were properly before the Board because of
Kentucky's "savings statute," KRS 413.270, and
remanded the case to the Board for appropriate proceedings.
We reverse the circuit court and reinstate the Board's
are residents of the Harless Creek community of Pike County,
Kentucky. On July 17, 2010, that community experienced
torrential rainfall and flooding. The flood caused Appellees
significant losses of personal and real property.
the time of the flood, a mining company was operating in the
Harless Creek watershed above Appellees' homes. Appellees
filed suit against the mining company alleging the mining
company's failure to undertake proper reclamation above
and around the Harless Creek community contributed to the
flooding and resulting damage. Adkins Plaintiffs v.
Stapleton, No. 2015-CA-001248-MR, 2017 WL 2332686, at *1
(Ky. App. May 26, 2017). The complaint was later amended to
add the individual mining inspectors as defendants.
Id. at *2.
31, 2012, after resolving their claims against the mining
company, Appellees filed suit in circuit court against the
Cabinet seeking monetary damages and a writ of mandamus. They
alleged the Cabinet's failure to enforce applicable
mining laws at a nearby surface mine contributed to, and
played a substantial role in, causing the property damage
they suffered in the 2010 flood. After mediation, the parties
reached an agreement regarding the mandamus action.
Cabinet then moved to dismiss the damages claim. One ground
for the Cabinet's motion was governmental immunity. The
circuit court denied the motion and the Cabinet appealed.
opinion rendered October 4, 2013, this Court reversed the
circuit court, finding the Cabinet was engaged in a
governmental function, entitling it to governmental immunity.
Dep't of Nat. Resources, Kentucky Energy & Envtl.
Cabinet v. Adkins, No. 2012-CA-001310-MR, 2013 WL
5524138, at *1 (Ky. App. Oct. 4, 2013). By order entered
December 17, 2013, the circuit court dismissed Appellees'
complaint, as directed by this Court.
March 14 and 17, 2014, Appellees filed negligence claims
against the Cabinet in the Board of Claims. The Cabinet moved
to dismiss the claims, arguing the Appellees failed to file
their claims within the one-year limit set by KRS 44.110. The
Board referred the motion to a hearing officer. Citing KRS
413.270 and persuaded by Appellees' interpretation of
Nelson County Bd. of Educ. v. Forte, 337
S.W.3d 617 (Ky. 2011), the hearing officer recommended
denying the Cabinet's motion because Appellees filed
their claims with the Board within ninety days of the circuit
court's dismissal. The hearing officer explained:
The Respondent Cabinet's argument that the [Appellees]
did not comply with KRS 44.110 statute of limitations in
filing with Pike Circuit Court is somewhat bizarre -statutes
of limitations in the Board of Claims Act have no bearing on
what takes place in Pike Circuit Court. The [Appellees']
Sur-Reply to [the Cabinet's] Reply stated it best:
"It defies logic to impose upon [Appellees] the ability
to predict that their action in circuit court would be
dismissed, that it would then be filed with this Board, and
therefore they should have filed their original action using
a statute of limitations of an administrative agency who at
that time did not have jurisdiction over this case."
Board rejected the recommendation. It reasoned that, for KRS
413.270 to save Appellees' claims, those claims had to be
filed in the circuit court within the KRS 44.110 time limit.
It further stated:
As the actions in Pike Circuit Court were not filed until May
31, 2012, well beyond one (1) year from the time the claim
for relief accrued, which as claimed was on July 17, 2010,
the statute asked to be tolled had already expired. . . . To
construe that a filing commenced in due time, as provided in
KRS 413.270, in any other court beyond any applicable
limitations period would permit any potentially time-barred
filing to be commenced in circuit court first, regardless of
the existence of a jurisdictional question, only to save it
from being dismissed for want of timely filing in the Board
(R. 26.) The Board found Forte of little value and,
instead, relied heavily on cases from ...