RENDERED: JUNE 15, 2017
To BE PUBLISHED

Supreme Court of B)mElH\N A H___l
2015-3¢-000114-DG @AT[§/z@éz/¢,;. Q.J.,.;.,,»c

. THE EsTATE oF cHRIsTINAr WITTICH (BY APPELLANT
AND THROUGH JUDITH wlTTIcH AND

FREDERICK WITTICH IN THEIR DULY

APPOINTED cAPAcITIES As co-

ADMINISTRATRIX AND co-

_ ADMINISTRATOR)

ON REVIEW FROM THE COURT OF APPEALS
V. CASE NO. _2009-CA-002378
FAYETTE CIRCUIT COURT NO. OS-CI-O4294

MICHAEL JOSEPH FLICK APPELLEE

OPINItJN OF THE COURT BY CHIEF JUSTICE MINTOlW

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
A_ppeals 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 operation of
KR81 413.180, the E`state had until no later than July 18, 2007 to tile its clairn.

And because the Estate failed to file this within that time frame, the Court of

 

1 Kentucky Revised Statutes.

Appeals held that the trial court erred when it denied Flick’s motion to dismiss

the complaint On discretionary review, we affirm the Court of Appeals..

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, 2605, and he was tried and convicted of Wittich’s murder in Janua,ry
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

compensatorydamage 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.
lt is critical to identify the important dates before us, because the proper

disposition of this case turns on these dates.

¢ On May 20, 2005, Flick killed Wittich.

 

2 Cuppy-_v. GeneralAcc. Fire 65 Life Assur. Corp., 378 S.W.2d 629, 631 (Ky.
'1964L
2

0 On July 18, 2005, the grand jury indicted Flick for Wittich’s
murder. n
0 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 representatives of the Estate
filed the complaint against Flick for the wrongful death of \iVittich.
The Estate brought its wrongful-death action under Kentuclcy’s wrongful-
death statute, KRS 41 1.130(1).3 We have long held that wrongful-death claims
fall within the purview of the limitations period established in KRS
413. 140(1)(a] and must be commenced within one year after the cause of action
accrues.4 The Court of Appeals recognized in Gaither v. Commonwealth that
wrongful death itself is not explicitly mentioned in KRS 413.090 to KRS
413. 160, but KRS 413. 140 and its “predecessors have been recognized for over
100 years as establishing a one year statute of limitations period on wrongful-

death claims.”5 Recognizing that longstanding precedent in Kentucky has

 

3 KRS 41 1.130(1) (“Whenever the death of a person results from_ an injury
inflicted by the negligence or wrongful act of another, damages may be recovered for
the death from the person who caused it, or whose agent _or servant caused it.”].

4 KRS 413.140(1]{a); See Irwin v. Smith, 150 Ky. 147 (1912]; Conner v. George
W. Whitesides Co., 834 S.W.2d 652, 653 (Ky. 1_'992); Gaither v. Commonwealth, 161
S.W.3d 345, 348 (Ky. App. 2010); Carden v. Louisville 85 N.R. Co., 101 Ky. 113, 39 S.W.
1027 (1897]. ‘

5 Gaither, 161 S.W.Sd at 346 (citing Carden v. Louisville & N.R. Co., 101 ~Ky.
113, 39 S.W. 1027 (1897]). .

3

established that claims for wrongful death fall within KRS 413.140(1)(a), we
observed, “[d]eath is simply the final injury to the person.”6

A wrongful-death claim is brought by the personal representative of the
decedent under KRS 41 1.130(1].7 Because a personal representative brings the
claim on behalf of the decedent and wrongful death has been classified under
KRS 413.140(1)(a), we are led to KRS 413. 180, which sets out limitations for an
action by or against a personal representative8 KRS 413. 180 provides:

(1) If a person entitled to bring any action mentioned in KRS
413.090 to 413.160 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 to 413.160 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. Mitesides Co., We held that KRS 413.180(2)
properly applies to wrongful-death claims.9 We explained that “[i]t is reasonable
to conclude the General Assernbly intended for the personal representative to
have the same amount of time to prosecute all claims resulting from injury,to
the decedent including injuries resulting in death.”10 The Court of Appeals in

then present case correctly noted that under Kentucky law, a wrongful-death

 

6 Conner, 834 S.W.2d at 654.
7 KRS 411.130(1].

3 KRS 413.180.

9 Conn_er, 834 S.W.Zd at 655.
10 Id. at 654.

claim commences upon the appointment of a personal representative or no -
longer than two-years from the date of death.11 The Court of Appeals
recognized that Wittich’s wrongful-death claim was brought more than three
years after Wittich’s death,. and almost two years after Wittich’s parents were
appointed administrators of her estate.

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 of
Flick’s conviction. We do not agree.

l KRS 413. 190 acts as a tolling statute in certain-instances for claims
falling within KRS 413.090 - 413.160.12 More specific to the case of Wittich,
KRS 4 13.190(2) is the only argument that could reasonably be made to toll the
running of the statutory period for bringing this wrongful-death claim.13 The
statute provides for tolling of the statute of limitations when a defendant

“abscond[s] or conceal[s] himself or by any other indirect means obstructs the

 

11 Gairher, 161 s.w.ed at 348.
12 KRS 413.190.
13 KRS 413.190(2}.

prosecution of the action, the time [of] obstruction shall not be computed as
any part of the period within which the action shall be commenced.”l“.
Meaning, if Wittich were able to argue successfully that Flick was absconding,
concealing, or obstructing the prosecution of the Estate’s claim until _
conviction, then the statute of limitations would be tolled until the condition
has abated.

Under our established 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 of months. And by the date of Flick’s public
indictrnent, 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 KRS 413.190.

Flick did not abscond. He 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

 

14 Id.

15 Hazel 1). General Motors Corp., 863 F.Supp. 435, 439 (W.D. Ky. 1994} (citing
Burke v. Blair, 349 S.W.2d 836, 837 (Ky. 1961]).

15 Perkins v. Northeastem Log Homes,,808 S.W.2d 809, 819 (Ky. 1991).
6

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 potential
claims. 19 And a plaintiff should be reasonably apprised of the potential
wrongful-death claim at the time the indictment' is made public.

D. The Legislature’s Amending KRS 413.140(1] Does Not Save Wittich’s
Claim.

Wittich argues that a recent legislative amendment made to KRS
413. 140(1], adding subsection (l], amounted to a silent adoption by the General

Assembly of the,holding of the Court of Appeals iri DiGiuro v. Ragland .20

 

11 'see ambenon v. am inc., 299 s.w.sd 565 (Ky. 2009).

13 See Minnesota Statute Section 573.02(1] (1996] (“An action to recover
damages for a death cause by an intentional act constituting murder may be
commenced at any time after the death of a decedent.”); Illiriois Code Section 13-202;

'N.J.s.A. 2A:31.
19 Hazel, 863 F.Supp. at 439 (citi'ng Burke 349 S.W.2d at 837).
20 Dr'Gr'uro v. Ragland, No. 2003-CA~001555-MR, 2004 WL 1416360 (Ky. App.

2004y
7

In Ragland, the tiial judge 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

Wittch contends that the legislature was aware of that case and explicitly
chose not to add wrongful death while amending another section of KRS
413.140(1)(a). This is an unconvincing argument lf the General Assembly in its
wisdom chooses to move wrongful~death claims outside the one-year statute of
limitations period_the place where the law has been for -more than a century-
we are confident that it will explicitly do-so.

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 Appeals’ 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 vote of

 

21 Id.
22 Id.
23 Id.

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 properly 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 relies on Hagan 1). Farris for the proposition that we have the
authority to act prospectively in order to avoid injustice, especially as it applies
to property rights and a party acting in reliance on the law as it existed at the

time of their actions.27 The action before us' is factually dissimilar from

 

24 SCR 1.020.

25 CR 76.28(4)(a) (“Upon entry of an order of the Supreme Court granting a
motion for discretionary review the opinion of the Court of Appeals shall not be
published, unless otherwise ordered by the Suprerne Court.”).

26 cR 76.28(4`)(¢).
27 See Hagan v. Farrc`s, 807 S.W.2d 488, 490 (Ky. 1991].
9

Hagan.28 In Hagan, an owner of a liquor license relied on a state agency’s
interpretation'of its own regulation, which the agency had applied for “decades”
previously.29 This Court, coming to the conclusion that the agency was
misapplying its own regulation, agreed with the Court of Appeals. Coming to
the conclusion that the decision should‘act prospectively, we reasoned that
because the agency had been applying the rule in a consistent manner for
many years, it would have been nearly impossible for a party to conceive that
the agency interpretation was incorrect30

Wittich cannot assert such a Strong position as argued in Hagan. lf
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

 

_ 2_3 Ia".
29 Id.
30 Id..
31 SCR 1.020. h

32 cR 76.28(4)(a) (“Upon entry stan aider of the supreme court granting a
motion for discretionary review the opinion of the Court of Appeals shall not be
_ published, unless otherwise ordered by the Supreme Court.”].

33 Ragland v. DiGiuro, 352 S.W.3d 908, 916 (Ky. App. 2010].
10 ` '

Wittich also cites Jacobs v. Lexington-Fayette Urban County Govemm.ent,
extracting a quote indicating that loose language 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 ona 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 asserting wrongful

death claims.

III. CONCLUSION_
We affirm the opinion of the Court of Appeals.

All. sitting. All concur.

 

34 Jacobs v. Le:tington-Fayette Urban County Govemment, 560 S.W.2d 10 (Ky.
1978]. 1 _

'35 Id. at 14.
11

COUNSEL FOR APPELLANT:

Roger Newman Braden
Braden Humfleet 85 Devine, PLC

COUNSEL FOR APPELLEE:

Jennifer Zeigler Hoerner

12

