The Court of Appeals published, Frank v. Estate of Enderle, which dealt with the failure to revive an action within one year after the death of the defendant. In this case, the main issue was whether the actions of defense counsel estopped the application of this rule.

In this case defense counsel told the court and opposing counsel of the death of her client. The client did not have an estate probated. Plaintiff’s attorney requested information from the defense attorney to assist in having the public administrator appointed. The defense attorney provided the information in her possession through emails, including a copy of the death certificate and obituary. Unfortunately, the plaintiff’s attorney did not have the estate probated until after the one year statute had passed.

The trial court granted defense counsel’s third motion to dismiss, holding that the statute of limitation to revive had passed. On appeal the plaintiff’s attorney argued that the defense attorney’s communications were meant to mislead the plaintiff into believing that further information regarding the name of heirs would be forthcoming. Plaintiff argued the defendant was estopped from arguing the statute of limitation since the sole purpose of that communication was to deceive the plaintiff’s attorney into inaction.

The Court of Appeals disagreed. It did not find any intentional attempt by the defense attorney to mislead or misrepresent the information regarding her client’s death. Nor, did it believe that the failure of the plaintiff to revive the action was the result of anything the defense attorney did. Instead it was the failure of the plaintiff’s attorney to properly investigate and take steps to revive the action after he became aware of the defendant’s death.

Editor’s note: The ethical obligation of the defense attorney in this instance is set forth in Harris v. Jackson, 192 S.W.3d 297, 305 (Ky. 2006), which requires the attorney to place the opposing party and the court on notice of the death of the client. Here the obligation was fulfilled. There is no statutory or ethical duty to provide all the information needed to open a probate case. The burden of taking the appropriate steps to revive the action is on the plaintiff.

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The Supreme Court has published its minutes for March 20th, here.  Please check back for digests of published cases.

The Court of Appeals has published its minutes for March 21st, here.  Please check back for digests of published cases.

Finis Price at Technoesq.com just posted on his blog’s collaboration with the Kentucky Law Review to offer trial videos online. Finis describes it as follows:

TechnoEsq, in collaboration with Kentucky Law Review, is seeking to make available the trial videos of numerous newsworthy and interesting trials from across Kentucky. Every lawyer knows the benefit in watching how other attorneys work and present cases. Unfortunately, unless we take the time to attend a trial, we are relegated to hearing second-hand of the mistakes and successes of other litigators. Since we believe the lessons learned from these cases are invaluable and often too difficult to obtain, we are seeking out the trial videos for these cases, digitizing them and making them available to our viewers for educational purposes.

Amazing! I agree the value of such an offering is incredible. The good news? This is just further proof that lawyer blogs are at the forefront of advancing the legal profession into the 21st century. The bad new? This is further evidence of how far behind the times our third branch of the government is.

Good luck to Finis and Mike on this project. Click on the link above for the full story.

Welcome

March 19, 2008

Welcome to the new home of the Kentucky Tort and Insurance Law Journal.  I am still working out some content issues, but have resolved the domain problem.   

You should be directed to the new domain (kytortjournal.com) without anything further on your part.  Please be aware that if you did not update your earlier subscription link or bookmark from kytortlaw.blogspot.com, you will not be redirected to this site automatically.  Instead, you will have to visit that site and link here.  Please update your URL’s and bookmarks to the current domain kytortjournal.com.  

Thanks.

  

The Kentucky Law Review has a more thorough report of the recent millions dollar verdict in Jefferson Circuit Court. Go here, for a very nice factual summary of the case and the resulting jury verdict.

Three days after I reported on the $3.2 million verdict, the Courier Journal now has an article describing the basic facts of the case. Unfortunately, there is no mention of the attorneys involved in the case or any quotes from those involved. Hopefully, the Courier will update its story as further facts become available.

For those interested the case number is 06-CI-003827 and the caption is Janet Mulligan, et al. v. Samuel Barrett d/b/a Don’s Auto Clinic.