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
2015-SC-000114-DG
Supreme Court of Kentucky.
JUNE 15, 2017
519 S.W.3d 774
COUNSEL FOR APPELLEE: Jennifer Zeigler Hoerner.
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
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 opera-
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 proрer 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 reрresentatives 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,
A wrongful-death claim is brought by the personal representative of the decedent under
(1) If a person entitled to bring any action mentioned in
KRS 413.090 to413.160 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 to413.160 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
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 tolled, thereby allowing this claim to be considered timely filed.
C. Wittich‘s Claim is Not Saved by a Tolling Statute.
Having identified the timeframe within which the Estate was required to assert its wrongful-death claim against Flick, we arrive at the crux of this appeal: is there anything that stops the running of the statutory period? Wittich argues that the statute of limitations begins to run on the date оf Flick‘s conviction. We do not agree.
Under our establishеd jurisprudence, a plaintiff is “under the duty to exercise reasonable care and diligence to discover whether he has a viable legal claim,” and any fact that should arouse his suspicion is equivalent to “actual knowledge of his entire claim.”15 Here, Flick was apprehended immediately at the scene of the murder, arrested and charged a few days later upon his release from a local hospital, incarcerated in the local detention facility pending trial, and indicted within a matter оf months. And by the date of Flick‘s public indictment, Wittich‘s estate knew or should have known of the injury to Wittich and that it was likely caused by Flick‘s conduct.16 We are not at all persuaded that Flick acted in a manner that would trigger tolling the limitations period under
Flick did not abscond. Hе did not conceal himself or obstruct prosecution of Wittich‘s civil claim. We have held that concealment or obstruction generally must consist of an act or conduct that misleads or deceives the plaintiff, which obstructs or prevents the plaintiff from instituting suit.17 Here we find no evidence in the record to suggest that Flick took any action that would mislead or deceive the Estate. On the contrary, as the Court of Appeals discussed, with the exception of his initial denials, Flick did not deny that he killed Wittich. Instead, he defended the murder charge at trial by asserting he shot Wittich while acting under extreme emotional disturbance.
We decline the Estate‘s invitation to adopt a rule tolling the running of the limitations period in murder cases until conviction of the perpetrator. Some states have addressed this issue by enacting statutes providing extended statutes of limitations for a wrongful death caused by murder, but our statute does not provide such an exception.18 As we discussed above, in Kentucky, one has a duty to act diligently in investigating and asserting any рotential claims.19 And a plaintiff should be reasonably apprised of the potential wrongful-
D. The Legislature‘s Amending KRS 413.140(1) Does Not Save Wittich‘s Claim.
Wittich argues that a recent legislative amendment made to
In Ragland, the trial judgе dismissed a wrongful-death claim as falling outside of the statute of limitations.21 The dismissal was appealed to the Court of Appeals, which directly addressed the issue of when the statute of limitations begins to run for a wrongful-death case in the context of a murder.22 The Ragland panel held that the statute of limitations begins to run from the date of conviction.23
Wittich contends that the legislature was aware of that case and explicitly chose not to add wrongful death while amending another section of
Wittich makes much of the fact that the Court of Appeals’ opinion in Ragland was designated “to be published” at the time it was rendered, making the rule in Ragland binding authority for the trial court and the Court of Appeals in the present case. We disagree.
The procedural history that followed the Court of Apрeals’ decision in Ragland reveals the fallacy of the Estate‘s argument concerning the opinion‘s precedential value. After the Court of Appeals issued its opinion, this Court took discretionary review of the case and affirmed the decision by a split vоte of this Court.24 Although affirmed, the Court of Appeals’ opinion in Ragland remained unpublished by operation of Civil Rule 76.28(4)(a).25 And the Court of Appeals panel in the present case correctly relied on Civil Rule 76.28(4)(c) which states, “Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state . . .” and “unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court.”26 As an unpublished case, rendered in June of 2004, Ragland prоperly falls within the type of publication status which makes it merely persuasive authority.
E. Our Opinion is Not Prospective Only in Nature.
Wittich cites several cases in which this Court made its holding prospective in nature. Those cases present fairly narrow circumstances that do not exist in the present case.
Wittich cannot assert such a strong position as argued in Hagan. If Wittich were indeed relying on the Court of Appeals’ holding in Ragland, it did so at its own peril. As discussed above, our decision as to the statute of limitations affirmed the Court of Appeals decision by operation of rule.31 And once again, while we affirmed the Court of Appeals decision, the opinion itself remained unpublished by operation of Civil Rule 76.28(4)(a).32 And when that decision was applied later on remand, the Court of Appeals panel accepted the statute-of-limitations issue as the law of the case and did not address it.33 These facts, unlike Hagan, are of such a nature that do not persuade us to apply our holding prospectively.
Wittich also cites Jacobs v. Lexington-Fayette Urban County Government, extracting a quote indicating that loose languаge in our decisions may create a situation where a contradictory decision later may allow the ruling to act prospectively.34 But, once again, the case Wittich cites to us is factually distinct. In Jacobs, the party was relying on a published decision that the Jacobs court believed was “loose enough to permit a fair minded reader to infer that we approved of [a certain position]” that was later the basis of the legal argument in Jacobs.35 In contrast with the circumstances in Jacobs, Wittich seeks to rely on an unpublished opinion, which was contrary to the longstanding history of a one-year limitations period for аsserting wrongful death claims.
III. CONCLUSION
We affirm the opinion of the Court of Appeals.
All sitting.
All concur.