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Shackelton v. Estate of Fries

Court of Appeals of Kentucky

August 2, 2019

TONY SHACKELTON APPELLANT
v.
ESTATE OF JOHN P. FRIES AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY APPELLEE

          APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 15-CI-03192

          BRIEFS FOR APPELLANT: Christopher W. Goode Kenneth C. Human Lexington, Kentucky

          BRIEF FOR APPELLEE, ESTATE OF JOHN P. FRIES: Ronald L. Green Zachary F. Mattioni Lexington, Kentucky

          BRIEF FOR APPELLEE, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY: Douglas L. Hoots James W. Lacy III Lexington, Kentucky

          BEFORE: ACREE, KRAMER, AND K. THOMPSON, JUDGES.

          OPINION

          ACREE, JUDGE

         Tony Shackelton appeals the Fayette Circuit Court's October 20, 2016 order dismissing his complaint and amended complaint finding no grounds "which would support and/or authorize relation back [of the amended complaint to the filing date of the original complaint] under CR[1] 15.03." We affirm in part, reverse in part, and remand for additional proceedings as explained herein.

         FACTS AND PROCEDURE

         On April 28, 2013, John Fries rear-ended Shackelton's vehicle at a red light in Lexington, Kentucky. Shackelton sustained an assortment of injuries, including four cracked/broken teeth requiring a root canal, anterior and inferior posterior labral injury requiring left shoulder arthroscopy and acromioclavicular joint repair, left wrist surgery, neck and back pain, and headaches. He incurred $54, 113.13 in medical expenses.

         Fries maintained a policy of insurance with Cincinnati Insurance Company. His liability policy limit is not revealed by the record.

         Shackelton's vehicle was insured by State Farm Mutual Automobile Insurance Company. His policy included underinsured motorist (UIM) coverage.

         Shackelton exhausted his basic reparations benefits (BRB)[2] on August 29, 2013. In October 2014, Shackelton informed Cincinnati Insurance of his legal representation. Cincinnati Insurance acknowledged representation in December 2014.

         Fries died on February 5, 2015.

         The next month, Shackelton's counsel engaged in an extended conversation with Cincinnati Insurance's adjuster, Robert Pearman. Counsel informed Pearman he would be sending a comprehensive demand package. Pearman made no mention of Fries' passing to counsel.

         Shackelton submitted his demand package to Cincinnati Insurance in June 2015. The next month, Pearman requested additional records; he again did not address Fries' death. Shackelton received no further response from Cincinnati Insurance. Accordingly, on August 27, 2015, Shackelton filed a negligence action against Fries accompanied by a claim against State Farm for UIM benefits. State Farm filed a subrogation cross-claim against Fries for any payments it is required to make for UIM benefits under Shackelton's insurance policy.

         Cincinnati Insurance contacted Shackelton in November 2015 via telephone and issued an opening settlement offer which Shackelton rejected. Fries' death was not mentioned.

         Shackelton learned of Fries' passing on December 2, 2015, through diligent efforts to effect service of his complaint. No estate had been opened in Fries' county of residence, Campbell County.

         Unable to locate a relative willing and/or able to serve as an estate representative, Shackelton filed a petition to open an estate and appoint a public administrator for the Estate of Fries. Cincinnati Insurance was included on the certificate of service. While Shackelton navigated the probate courts of Campbell County, Cincinnati Insurance continued to offer written and verbal settlement amounts on behalf of its insured, John Fries.

         In August 2016, Shackelton moved for leave to file an amended complaint substituting the Estate of John P. Fries as a named defendant. In all other respects the complaint remained unchanged. The circuit court granted Shackelton's motion, but reserved for future ruling the issue of whether the amended complaint related back to the filing date of the original complaint.

         The Estate quickly moved to dismiss all claims on grounds that the amended complaint did not relate back to the original complaint under CR 15.03 and, therefore, was filed outside the applicable two-year statute of limitations.[3]State Farm filed a similar motion, joining the Estate's argument that Shackelton's amended complaint did not relate back under CR 15.03. It also argued that Shackelton's UIM claim should be dismissed because it was impossible for Shackelton to establish liability on the part of the Estate of Fries.

          The circuit court granted both motions, finding "no controlling statutes or case law which would support and/or authorize relation back under CR 15.03." (R. 127). It also found the UIM claim to be dependent upon the underlying negligence claim against Fries, ruling that if the claim against Fries is not legally viable, it also impacts the UIM claim. Shackelton appealed.

         STANDARD OF REVIEW

         It is unclear if the circuit court dismissed this matter under CR 12.02(f) or CR 56. The Estate filed its motion pursuant to CR 12.02(f), but State Farm filed its motion pursuant to CR 12.02(f) and CR 56. Shackelton refers this Court to the summary judgment standard in his briefs. The Appellees make no mention of the proper review standard.

         CR 12.02(f) authorizes judgment in favor of a defendant on the basis of the plaintiff's "failure to state a claim upon which relief can be granted[.]" CR 12.02(f). However, CR 12.02 goes on to explicitly state that:

If, on a motion asserting the defense that the pleading fails to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

CR 12.02. Shackelton attached to his response numerous items beyond the pleadings. Because the circuit court did not exclude these non-pleadings items, we undertake review of the circuit court's order as one granting summary judgment. "The standard of review on appeal of summary judgment is whether the trial court correctly found there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Carter v. Smith, 366 S.W.3d 414, 419 (Ky. 2012). Likewise, whether an action is time-barred is a legal, not factual, inquiry. Ragland v. DiGiuro, 352 ...


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