FROM FAYETTE CIRCUIT COURT HONORABLE KIMBERLY N. BUNNELL,
JUDGE ACTION NO. 15-CI-03192
FOR APPELLANT: Christopher W. Goode Kenneth C. Human
FOR APPELLEE, ESTATE OF JOHN P. FRIES: Ronald L. Green
Zachary F. Mattioni Lexington, Kentucky
FOR APPELLEE, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY:
Douglas L. Hoots James W. Lacy III Lexington, Kentucky
BEFORE: ACREE, KRAMER, AND K. THOMPSON, JUDGES.
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 15.03." We affirm in
part, reverse in part, and remand for additional proceedings
as explained herein.
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.
maintained a policy of insurance with Cincinnati Insurance
Company. His liability policy limit is not revealed by the
vehicle was insured by State Farm Mutual Automobile Insurance
Company. His policy included underinsured motorist (UIM)
exhausted his basic reparations benefits (BRB) on August 29,
2013. In October 2014, Shackelton informed Cincinnati
Insurance of his legal representation. Cincinnati Insurance
acknowledged representation in December 2014.
died on February 5, 2015.
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.
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 contacted Shackelton in November 2015 via telephone
and issued an opening settlement offer which Shackelton
rejected. Fries' death was not mentioned.
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,
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.
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
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.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.
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.
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.
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 ...