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Tuesday, July 23, 2019

Ky. Supreme Court tosses wrongful death lawsuit, says it was filed too late

By David Hutton | Jul 14, 2017

FRANKFORT, Ky. (Legal Newsline) – The Kentucky Supreme Court has sided with an appeals court ruling that reversed a trial court judgment in a wrongful death lawsuit over the 2005 shooting death of Christina Wittich.

The court decided on June 15 that a lawsuit against Michael Flick, who was sentenced to life imprisonment for the 2005 murder of Wittich in 2008, was filed too late.

Wittich's parents, Judith and Frederick Wittich, brought a wrongful death action against Flick on behalf of their daughter's estate and obtained a nearly $56 million jury verdict in Fayette County Circuit Court.

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 the estate had to file its claim by July 18, 2007.

Since the estate failed to file its claim within the timeframe, the Court of Appeals held that the trial court erred when it denied Flick's motion to dismiss the complaint.

On discretionary review, the Kentucky Supreme Court affirmed the Court of Appeals' ruling.

In its analysis, the high court stated that key dates prove the wrongful death claim was not filed in a timely manner.

Flick killed Wittich on May 20, 2005, and was indicted less than two months later on July 18, 2005.

On Nov. 16, 2006, Wittich's parents, Judith and Fredrick Wittich, were appointed co-administrators of her estate.

In January 2008, Flick was tried and convicted of Wittich's murder.

On Aug. 22, 2008, the personal representatives of Wittich's estate filed the complaint against Flick for the wrongful death of Wittich.

In its opinion, The Kentucky Supreme Court noted that the Court of Appeals correctly noted that under Kentucky law, “a wrongful-death claim commences upon the appointment of a personal representative or no longer than two years from the date of death.”

According to the opinion, 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.

In the appeal, the Wittiches argued that the statute of limitations began to run on the date of Flick's conviction. 

In its opinion, the Supreme Court rejected that argument and noted the claim could not be saved by a tolling statute.

In its opinion, the Kentucky Supreme Court declined 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,” the court wrote.

Writing the unanimous opinion, Chief Justice John D. Minton Jr. pointed out that the court also noted that the commonwealth of Kentucky has a duty to act diligently in investigating and asserting any potential claims.

“A plaintiff should be reasonably apprised of the potential wrongful-death claim at the time the indictment is made public,” Minton concluded.

Recent legislative amendments to KRS 413.120 could not save the Wittiches' claim, according to the court.

Minton noted that in DiGiuro v. Ragland, the trial judge dismissed a wrongful death claim as falling outside of the statute of limitations. 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.

The Ragland panel held that the statute of limitations begins to run from the date of conviction.

The Wittiches contend that the legislature was aware of that case and explicitly chose not to add wrongful death while amending another section of KRS 413.140.

“This is an unconvincing argument,” Minton concluded. “If 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."

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