KY Supreme Court Decision Alert: Davenport v. Kindred Hospitals Limited Partnership (2024)

LMICK wishes to make sure you are aware of the Court’s ruling in Davenport v. Kindred Hospital Limited Partnership, 2023-SC-0039-DG (2024), and its implications regarding the way you calculate the required time period for filing wrongful death actions and/or negligence claims on behalf of estates. Failing to abide by the Court’s ruling in Davenport will likely result in late filings which will ultimately be barred and dismissed. LMICK strongly encourages you to read the Court’s full Opinion.

On October 24, 2024, the Supreme Court of Kentucky issued its ruling in Davenport. This was a medical malpractice and wrongful death lawsuit against Kindred filed by Davenport, as the appointed personal representative of an estate, in Jefferson Circuit Court. The Circuit Court granted Kindred’s motion for summary judgement on the basis that Davenport’s suit was not timely filed. The appellate court agreed, and the Supreme Court affirmed.

The case involves the estate of Penny Ann Simmons, who passed away on July 19, 2018. Davenport was appointed as the personal representative of Simmons’ estate by the Spencer District Court on September 11, 2018. However, the Order of Appointment was not entered by the Spencer County Clerk until ten days later, September 21, 2018. Davenport filed her medical malpractice and wrongful death lawsuit on behalf of the estate against Kindred on September 20, 2019. Kindred argued that the lawsuit was filed outside the one-year statute of limitations, which they claimed began when the Judge signed the appointment order.

The Jefferson Circuit Court granted Kindred’s motion for summary judgment, ruling that the lawsuit was indeed filed outside the statute of limitations. The court found that the statute of limitations began when the Judge signed the Order of Appointment, citing KRS 395.105. The Court of Appeals affirmed the Circuit Court’s decision but invited the Kentucky Supreme Court to review the issue.

The Kentucky Supreme Court affirmed the lower courts’ decisions. The Court held that probate proceedings, including the appointment of a personal representative, are special statutory proceedings. Therefore, the procedural requirements of KRS 395.105, which state that the appointment is effective upon the Judge’s signing, prevail over the Kentucky Rules of Civil Procedure. The Court also clarified that the one-year limitation period for filing claims, as set forth in KRS 413.180(1), begins at the time of the appointment, which is when the Judge signs the Order. Thus, Davenport’s lawsuit was filed outside the permissible time frame, and the summary judgment in favor of Kindred was affirmed.

Many attorneys look at the date of the Entry of the Order of Appointment and not the date the Order was signed. In some cases, entry can be delayed a week or more from the actual court date of the Judge’s signing. Therefore, have mechanisms in place to determine when the Judge signs the Order of Appointment. If you are waiting on such an Order, calling the Court regularly for status checks is not out of bounds.

Probate Court and Required E-Filing

The Davenport case raises another important issue regarding probate cases and required e-filing. E-filing is now required for all probate matters throughout all of Kentucky’s courts. As such, attorneys must submit Orders to the Judge via e-filing. You should be aware that delays may occur in the signing and entering of the orders. Thus, it is incumbent upon the attorney to check, double check and triple check when the signing and entry happens in these kinds of cases.

Therefore, be careful when calendaring critical dates for your cases. And be sure to be mindful of when Orders are signed by your presiding Judge.

CLE On-Demand Coming Soon!

For LMICK’s 1Q CLE, on February 18, 2025, LMICK hosted a live Webinar titled, “Horseshoes and Violating SCR 3.130 (3.3) (Candor to the Tribunal) – When Coming Close Has Consequences.” The Webinar speakers were the Honorable Judge Brian C. Edwards, Jefferson County Circuit Court, Division 11; Judge Jerry D. Crosby, 12th Judicial Circuit; Judge Denotra Spruill Gunther, Fayette District Court; and Judge Squire N. Williams, III, Family Court Judge, Chief Circuit Judge, Franklin County, 48th Judicial Circuit. This Webinar will soon be available on-demand for 1 hour of Ethics CLE credit at www.lmick.com!

The panelists discuss situations they have observed in which attorneys have violated, or come close to violating, SCR 3.130 (3.3). A violation of a lawyer’s duty of candor toward the tribunal can have serious consequences and implications for both the attorney and the case. Hear from these distinguished jurists on how to avoid violations of SCR 3.130 (3.3) while still zealously representing your clients in court. This program has been approved for 1 hour of Ethics CLE. Please check our website www.lmick.com to take advantage of this CLE opportunity and learn about this important topic!