Dismissal For Failure To Revive Voids Jury Verdict In Favor of Plantiff’s Estate

In a recent decision arising out of Boone County, a unanimous panel of the Kentucky Court of Appeals held that the trial court erred in not dismissing a pending civil action on limitations grounds where the plaintiff’s counsel merely substituted the estate for the deceased plaintiff under CR 25.01 but did not concurrently move to revive the action under KRS 395.278. The dismissal voided a jury verdict in favor of the plaintiff’s estate.

In Currin v. Estate of Benton, 2018-CA-000075, 2019-WL-1968003 (May 3, 2019), the Court, in a decision by Judge Allison Jones, joined by Chief Judge Denise Clayton and Judge Larry Thompson, followed a line of cases holding that the statutory limitations period of one year in which to revive a civil action upon the death of a litigant is not satisfied by substitution under CR 25.01. Prior case law to this effect includes Koenig v. Public Protection Cabinet, 474 S.W.3d 926 (Ky. App. 2015), and Frank v. Estate of Enderle, 253 S.W.3d 570 (Ky. App. 2008).  Other prior case law has described the statutory duty to revive within one year as “mandatory,” to be “strictly construed,” and “not subject to enlargement.” See, e.g., Hammons v. Tremco, 887 S.W.3d 336 (Ky. 1994).

The Currin decision was designated for publication in the South Western Reporter but is not yet final.

NOTE: The foregoing post includes commentary reprinted from the forthcoming 2020 edition of 6 Philipps & Kramer, Kentucky Practice, Rules of Civil Procedure Annotated, by David V. Kramer, with permission of the author and publisher. Copyright (c) 2019 Thomson Reuters. For more information about this publication click here.

David Kramer is a Partner and Chair of the Civil Litigation practice area of DBL Law, with offices in Cincinnati, Ohio, and in Crestview Hills and Louisville, Kentucky.