The Court of Appeals has posted its minutes for May 9th, here.  There was only one published case dealing with torts and insurance.  Diaz v. Barker & Allstate dealt with several procedural issues at the trial court level in an automobile negligence case, including plaintiff’s failure to promptly appeal a summary judgment order in favor of Barker under CR 54.02 and issues regarding the trial judge’s failure to recuse himself.

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.

The Kentucky Law Review recently reported on several recently proposed legislative bills. Of interest was house bill 280, here, which seeks to raise the jurisdiction of small claims court to $5,000.00. No comment on what affect this would have on the district/circuit court maximum/minimum limit of $4,000.00, but presumably this would also need to be raised.

Of course the increase is probably long overdue. Several comments to the bill note that the current limit is outdated and it probably is. I recently tried a subrogation case in circuit court for about $4,200.00, so I know first hand the impact that the jurisdictional limit can have on your case. However, does this really matter on many cases, such as personal injury cases, when most of the damages are unliquidated. Can’t an attorney simply demand an extraordinary number for a subjective damage such as pain and suffering to get into circuit court? Doesn’t some of that go on in federal court, where the diversity limit is 75,000.00? Will this really impact the majority of cases, beyond property damage or contractual based claims? Does it need to be higher?