RENDERED: OCTOBER 26, 2023 

TO BE PUBLISHED 

Supreme Court of Kentucky

2022-SC-0177-DG 

 

MR. ROOF OF LOUISVILLE, LLC APPELLANT

ON REVIEW FROM COURT OF APPEALS 

V. NO. 2020-CA-1048 

JEFFERSON CIRCUIT COURT NO. 15-CI-002902 

THE ESTATE OF AYANNA HENRY, 

DECEASED (SUCCESSOR 

ADMINISTRATOR NOT YET APPOINTED); 

AMERICAN WATER HEATER COMPANY; 

AND THE ESTATE OF LENA BAILEY, 

DECEASED (SUCCESSOR 

ADMINISTRATOR NOT YET APPOINTED)

APPELLEES

AND 

2022-SC-0178-DG 

 

AMERICAN WATER HEATER COMPANY APPELLANT

ON REVIEW FROM COURT OF APPEALS 

V. NO. 2020-CA-1048 

JEFFERSON CIRCUIT COURT NO. 15-CI-002902 

THE ESTATE OF AYANNA HENRY, 

DECEASED (SUCCESSOR 

ADMINISTRATOR NOT YET APPOINTED); 

MR. ROOF OF LOUISVILLE, LLC; AND THE 

ESTATE OF LENA BAILEY, DECEASED 

(SUCCESSOR ADMINISTRATOR NOT YET 

APPOINTED)

APPELLEES

OPINION OF THE COURT BY CHIEF JUSTICE VANMETER 

REVERSING AND REMANDING
2

By statute, when a party, whether plaintiff or defendant, to an action 

dies, an application to revive the action in the name of the representative or 

successor of that party must be made within one year after death. KRS1

395.278. In this case, we are required to decide whether the Court of Appeals 

erred in holding that KRS 395.280, providing for the substitution of a 

successor administrator, was not subject to the one-year limitation of KRS 

395.278. We hold that the Court of Appeals did err and therefore reverse its 

opinion reversing the Jefferson Circuit Court’s judgment which dismissed the 

civil actions of the Estate of Ayanna Henry and the Estate of Lena Bailey 

against American Water Heater Company (“AWH”) and Mr. Roof of Louisville, 

LLC (“Mr. Roof”). Thus, the Jefferson Circuit Court’s summary judgment is 

reinstated.

I. FACTS AND PROCEDURAL BACKGROUND

On June 18, 2014, eleven-year-old Ayanna Henry (Ayanna) was found 

cold and unresponsive in the basement of her family home. When first 

responders arrived, they pronounced her dead at the scene. Her mother, 

Shanita Bailey (Shanita), her grandmother, Lena Bailey (Lena), and her 

younger sister, Aniya Henry (Aniya),2 each reported headaches and flu-like 

symptoms and were transported to a local hospital to be evaluated. Due to 

these symptoms, the first responders tested the home for elevated levels of 

1 Kentucky Revised Statutes.

2 We refer to these persons by their first names merely to avoid confusion 

because of their surnames.
3

carbon monoxide. The tests were positive for excessive levels of carbon 

monoxide. 

Several days earlier, Brian Cochran, the biological grandfather of the 

deceased child and the owner of the family home where the death occurred, 

had installed a “BFG Conversion Kit,” given to him from a local hardware store 

as part of a recall on his water heater. Cochran installed the conversion kit 

himself with the assistance of a family friend. AWH manufactured the water 

heater and conversion kit. 

Two days before the death of Ayanna, Mr. Roof replaced the roof of the 

house via a subcontractor. At some point during the conversion kit installation 

and the roof replacement, the ventilation for the water heater system was

apparently disrupted and not repaired. 

On June 11, 2015, Shanita was appointed as administratrix of the Estate 

of Ayanna. On the same day, Lena, the grandmother, individually; Shanita, 

the mother, individually; and Shanita, in her capacity as next friend of her

minor child, Aniya, each filed a personal injury action against multiple 

defendants, including AWH and Mr. Roof. Shanita, in her capacity as 

administratrix of the Estate of Ayanna, also filed a wrongful death action

against the same defendants.3 The claims alleged that the negligence of AWH 

and Mr. Roof, amongst that of the other defendants, caused both Ayanna’s

death and the personal injury to each of Lena, Shanita, and Aniya. The record 

3 The four causes of action were all set forth in one complaint.
4

discloses that the complaint was served by mail on Antwain Henry, the girls’ 

father, who was then incarcerated.

Lena passed away on June 24, 2015, mere days after the complaint was

filed, and thus her action was abated. In November 2015, Shanita was 

appointed as the administratrix of the Estate of Lena Bailey.4 A few days later, 

Shanita, as administratrix of her mother’s Estate, moved to be substituted as 

plaintiff in the action in lieu of Lena.5 The trial court entered an Order 

granting the motion for substitution on November 16, 2015, thereby effectively 

and timely reviving Lena’s action under KRS 395.278 and CR6 25.01(1).7

4 The CourtNet records for these estates reveal that the Jefferson Public 

Administrator had brief involvement in the estates’ administration. With respect to 

the Estate of Ayanna, the record appears to show that Chris Meinhart, the then 

serving Jefferson Public Administrator, was appointed as administrator for this Estate 

on July 23, 2015, but the Order of Appointment was rescinded and Shanita was 

appointed in January 2016. Estate of Ayanna Henry, Jefferson Dist. Ct., 15-P002281. Similarly, in the Estate of Lena Bailey, the record appears to show Meinhart 

was appointed on February 5, 2018. This was eighteen months after Shanita’s death. 

Meinhart’s appointment was set aside later in 2018, apparently so that Cochran could 

be appointed. Estate of Lena Bailey, Jefferson Dist. Ct., 15-P-004696. 

The reason for setting aside these appointments of the Jefferson Public 

Administrator is not disclosed in the record.

5 Shanita’s stated grounds in the motion was that substitution was appropriate 

since “[p]ursuant to [CR] 17.01, as the personal representative for the Estate of Lena 

Bailey, Shanita Bailey as administratrix thereof, is the real party in interest.”

(Emphasis added). This characterization is contrary to the Appellees’ argued position 

before us. The Appellees, for purposes of this opinion, are the Estate of Ayanna Henry 

and the Estate of Lena Bailey.

6 Kentucky Rules of Civil Procedure.

7 The record discloses that in March 2016, Plaintiffs filed a motion for leave to 

amend the complaint to remove Lena Bailey as a plaintiff due to her death and 

“properly name the probate [sic] estate of Lena Bailey, Shanita Bailey, Executrix [sic],”

referring to the November 16, 2015, Order of Substitution. Since substitution and 

revival had already occurred, the purpose of this motion is unknown; the trial court 

treated the motion as one to file an amended complaint and the defendants 

correspondingly filed answers.
5

However, on August 5, 2016, a few months after the successful revival of 

Lena’s action, Shanita passed away and her individual action abated.

Following the death of Shanita, over two years passed before Cochran, 

Shanita’s father as well as Lena’s life partner, was appointed by the Jefferson 

District Court as the administrator de bonis non of each estate on December 5, 

2018. No effort, however, was made to notify the defendants, their counsel or 

the trial court of Shanita’s death. In fact, plaintiffs’ counsel continued to 

practice the case as if Shanita were still alive, effectively misrepresenting that 

fact with each pleading filed in the trial court for over two and one-half years.8 

8 While Appellees’ counsel attempt to pass off this discrepancy as due to the 

“lengthy process” of attempting to discern who in the family should take up the mantle

as administrator, this failure has greater implications. “An attorney acts as an agent 

of his client.” Spees v. Ky. Legal Aid, 274 S.W.3d 447, 448 (Ky. 2009) (citing Clark v. 

Burden, 917 S.W.2d 574, 575 (Ky. 1996)). Under KRS 395.195, 

A personal representative, acting reasonably for the benefit of the 

interested persons, may properly:

. . .

(18) Employ persons, including attorneys, auditors, investment advisors, 

or agents, to advise or assist the personal representative in the 

performance of his administrative duties[,]

(19) Prosecute or defend claims, or proceedings in any jurisdiction for the 

protection of the estate and of the personal representative in the 

performance of his duties[.]

As an elementary matter of agency law, the death of the principal terminates the 

agency and the agent’s power to act. Ping v. Beverly Enters., Inc., 376 S.W.3d 581, 

591 (Ky. 2012) (citing Rice v. Floyd, 768 S.W.2d 57 (Ky. 1989); Restatement (Second) of 

Agency, § 120, 122 (1958)). This rule has been applied to the attorney-client 

relationship. See Harris v. Jackson, 192 S.W.3d 297, 306 (Ky. 2006) (noting death of 

client left attorney without client to represent) (citing ABA Standing Committee on 

Ethics and Professional Responsibility, Formal Opinion 95-397 (1995)). These rules 

are of longstanding duration, having been applied early in our Commonwealth’s 

history to the agency created by an attorney-client relationship. See Campbell's 

Representatives v. Kincaid, 19 Ky. (3 T.B. Monr.) 68, 71 (1825) (holding that “under 

settled principles of law,” attorney’s agreement with client to prosecute a lawsuit 

ceased with client’s death); Clark’s Ex’rs v. Parish’s Ex’rs, 4 Ky. (1 Bibb) 547, 547 

(1809) (holding “death of a party to an action pending vacates the power of his 
6

Only when the trial court issued a CR 77.02(2) Notice to Dismiss, March 14, 

2019, did Plaintiffs’ place in the record that Shanita had died. And this 

pleading, entitled “Response to Court’s CR 77.02 Notice” was arguably 

misleading by leaving the impression that Shanita had only recently died, in 

stating,

Comes the Plaintiffs, by and through counsel, and in 

response to the Court’s notice, states as follows:

Plaintiff is pursuing this matter, and discovery is ongoing. 

Due to the passing of Plaintiff Shanita Bailey on December 5, 2018,

Plaintiff Brian Cochran, was appointed administrator of the estates 

of Shanita Bailey, Lena Bailey and Ayanna Henry. 

(emphasis added).

Mr. Roof and AWH, following a February 2020 motion hour at which they 

were indisputably made aware of the death of Shanita, each filed motions to 

dismiss the claims of Shanita 1) individually; 2) as administratrix of Ayanna’s

Estate; and 3) as administratrix of the Lena’s Estate. The basis for the motions 

attorney therein, and [attorney] is not required or authorized to do anything further in 

the action, except upon the retainer of the legal representative[]”).

Within the context of estate administration, “[w]hen the powers of one personal 

representative cease, the remaining personal representatives may carry the trust into 

execution. If there is no remaining personal representative, an administrator de bonis 

non, or, if there is a will, an administrator with the will annexed, shall be appointed.” 

KRS 395.060. In other words, when a personal representative dies, as in this case, 

her powers cease, and the appointment of an administrator de bonis non is required.

Failure to notify opposing counsel of the death of the party represented by the

attorney is similarly a violation of Rules of Professional Conduct. Harris,192 S.W.3d 

at 305-06; Ky. Bar Ass’n v. Geisler, 938 S.W.2d 578, 580 (Ky.1997) (holding attorney 

had obligation to disclose death of identified client and that when death occurs, the 

attorney ceases to represent the identified client); see CR 25.01(1) (requiring “[u]pon 

becoming aware of a party's death, the attorney(s) of record for that party, as soon as 

practicable, shall file a notice of such death on the record and serve a copy of such 

notice in the same manner provided herein for service of the motion for 

substitution[]”).
7

was the failure to timely substitute a personal representative. KRS 395.278; 

CR 25.01. The Plaintiffs responded that the delay was occasioned “by the task 

of determining who would take over as administrator of each of the three 

decedents’ estates. It was eventually discovered that the father of Ayanna and 

Aniya Henry was incarcerated.”9 And, they argued revival, as required by KRS 

395.278, was not implicated. Rather, the matter only required substitution of 

a personal representative under KRS 395.280, which contains no time limit. 

On June 14, 2020, Cochran filed a motion to be substituted as party plaintiff. 

Without addressing the motion to substitute, the trial court granted Mr. Roof’s 

and AWH’s motions to dismiss concluding that the statutory time limitation on 

revival applied. 

Upon appeal, the Court of Appeals determined that the trial court erred 

in concluding that the Estates failed to timely substitute a new personal 

representative following the death of the original personal representative. The 

Court of Appeals interpreted KRS 395.280 to provide a summary procedure by 

which an estate’s personal representative may be replaced upon his or her 

death or removal. Death or removal of the appointed representative does not 

cause the estate’s action to abate; it merely requires a new substitution with 

yet another representative. Est. of Henry v. Am. Water Heater Co., No. 2020-

9 The Appellees cite this reason to us as well. Unfortunately, this fact, “eventual

discovery of incarceration,” is belied by the certificate of service on the June 2015 

Complaint disclosing that the girls’ father was then incarcerated.
8

CA-1048-MR, 2022 WL 1051907, at *3 (Ky. App. Apr. 8, 2022). We granted Mr. 

Roof’s and AWH’s petitions for discretionary review.10

II. STANDARD OF REVIEW

As this matter involves questions of pure statutory interpretation, the 

meaning, impact, and interrelation of KRS 395.280 and KRS 395.278, we 

review the lower court’s decision de novo. Hauber v. Hauber, 600 S.W.3d 204, 

207 (Ky. 2020) (citing Commonwealth v. Moore, 545 S.W.3d 848, 850 (Ky. 

2018)). In conducting our review, we afford no deference to the lower courts’ 

statutory interpretations or conclusions of law. Hauber, 600 S.W.3d at 207 

(citing Seeger v. Lanham, 542 S.W.3d 286, 290 (Ky. 2018)).

Our goal in statutory interpretation is to carry out the intent of the 

legislature. Jefferson Cnty. Bd. of Educ. v. Fell, 391 S.W.3d 713, 718 (Ky. 

2012); Saxton v. Commonwealth, 315 S.W.3d 293, 300 (Ky. 2010) (discerning 

and effectuating legislative intent is the cardinal rule of statutory construction); 

see also KRS 446.080(1) (“[a]ll statutes of this state shall be liberally construed 

with a view to promote their objects and carry out the intent of the legislature”). 

In addition, “[w]e have a duty to accord to words of a statute their literal 

meaning unless to do so would lead to an absurd or wholly unreasonable 

conclusion.” Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky. 1984). Statutory 

terms are interpreted “based upon their common and ordinary meaning, unless 

10 The Court of Appeals noted that Shanita’s individual claim was properly 

dismissed since no notice of substitution had been filed within a year of her death on 

August 5, 2016. KRS 395.278; CR 25.01. No argument exists that this dismissal was 

improper, and this claim is not before us.
9

they are technical terms.” Maupin v. Tankersley, 540 S.W.3d 357, 359 (Ky. 

2018).

III. ANALYSIS

Most importantly for a proper analysis and resolution of this case is 

recognition that we are confronted with two separate claims, filed by separate 

persons, in separate capacities, albeit arising from a common event, and 

initially encompassed within a single complaint. One is the personal injury 

claim filed by Lena, and the other is the wrongful death claim filed by Shanita

as administratrix of Ayanna’s estate. For a very short time, following Lena’s

death and Shanita’s appointment as administratrix of Lena’s estate and 

subsequent substitution as party plaintiff in place of Lena, both claims were 

prosecuted by Shanita in a fiduciary capacity, but the differing nature of the 

claims is important because of statutory provisions that operate on them. 

A. Origin and Meaning of KRS 395.280

Because the Court of Appeals agreed with the Appellees’ argument that 

KRS 395.280 merely “provides a summary procedure by which an estate’s 

personal representative may be replaced upon her death or removal[,]” and is 

not subject to the time limitation in KRS 395.278, examination of the origins 

and meaning of KRS 395.280 is appropriate.

1. Survival of Actions Generally.

Recently, we addressed the relationship between KRS 395.278 and CR 

25.01, including the history of those provisions. Estate of Benton v. Currin, 615 

S.W.3d 34, 36-39 (Ky. 2021). The main point of the Currin opinion was to 
10

clarify the procedure for substitution, and that “a motion for substitution 

properly filed with the court in accordance with CR 25.01(1) within the oneyear allotted by the legislature constitutes revival.” Id. at 39.

Our Currin opinion briefly touched on survival of actions. We noted that 

at common law, when a plaintiff passed away while prosecuting a case, the 

case died with him. Id. at 36 (citing Daniel v. Fourth & Market, Inc., 445 S.W.2d 

699 (Ky. 1968)). In order to ameliorate the harsh effects of the common law, 

the legislature, early in our Commonwealth’s history, provided for the survival 

and revival of actions. See 1 CHARLES S. MOREHEAD & MASON BROWN, DIGEST

OF THE STATUTE LAWS OF KENTUCKY, Abatement & Revivor, 85-90 (1834). 

Noteworthy in this collection is a statute from 1812:

[N]o species of action for personal injuries, shall cease or die with 

the person, except actions for assaults and batteries, slander, 

criminal conversation, and so much of the action for malicious 

prosecution, as is intended to recover for the personal injury; but 

that for any other injury than those herein excepted, an action may 

be brought and maintained by executors and administrators . . . in 

like manner with causes of action founded upon contract. And 

upon the decease of either plaintiff or defendant to any actions

which, by the provisions of this section, will not die with the 

person, it shall be lawful for such action to be revived in the name 

of the executors or administrators of the deceased, in the same 

manner, subject to the like proceedings, as in the cases which 

heretofore survived to the executors or administrators of the 

deceased, may be.
11

Act of Feb. 4, 1812, 4 Litt. 394; 1 MOREHEAD & BROWN, at 88. If this statute 

seems familiar, it should because a direct line of statutory codification11 runs 

from it to our present KRS 411.140:

No right of action for personal injury or for injury to real or 

personal property shall cease or die with the person injuring or 

injured, except actions for slander, libel, criminal conversation, 

and so much of the action for malicious prosecution as is intended 

to recover for the personal injury. For any other injury an action 

may be brought or revived by the personal representative, or 

against the personal representative, heir or devisee, in the same 

manner as causes of action founded on contract.

The 1812 survival statute is important for two reasons: 1) it demonstrates that 

many of our current statutes have long pedigrees, and 2) like the other early 

abatement/revivor/survival of action statutes, it was silent as to survival of an 

action when brought by an executor or administrator.

2. Predecessor of KRS 395.280

In 1838, our predecessor court was confronted with that very issue: 

whether an action previously brought by an administrator of a decedent’s 

estate survived the administrator’s death and thus could be revived by his 

successor. Fletcher’s Adm’r v. Sanders, 37 Ky. (7 Dana) 345 (1838). The court 

made short work of the issue, stating that “[w]hatever might be the technical 

rule in an action at law, we have no doubt that, in equity, a suit brought by an 

administrator, may be revived and prosecuted by an administrator, de bonis 

11 Ky. Stat. § 10 (1894); Gen. Stat. ch. 10, § 1 (Ky. 1873); Rev. Stat. ch. 10, § 1

(Ky. 1852).
12

non, after the administrator’s death.” Id. at 347. A little over three years later, 

the legislature enacted the following statute:

[I]n all cases where any suit may now be depending, or shall 

hereafter be depending, at law or in equity, in any of the courts of 

this Commonwealth, brought by or against an executor or any 

administrator whatever, and the plaintiff or defendant shall die, or 

be removed from office by the court in which he qualified or 

received his appointment, or his office shall expire, the suit shall 

not, for either of said causes, abate, or be discontinued, but the 

same may be revived and prosecuted in the name of, or against the 

successor, or person who shall accede to the duties, of such 

plaintiff or defendant who may have died, been removed from 

office, or whose office has expired, in the same manner as if such 

successor, or the person acceding to the duties, had originally been 

a party to such suit, any law or usage to the contrary 

notwithstanding.

Act of Feb. 23, 1842, ch. 269, § 1, 1842 Ky. Acts 63. Section 2 of this Act 

provided the means by which the revival was to be made. The 1842 Act was 

clearly enacted for the express purpose of clarifying that any action, whether at 

law or in equity, brought by or against a personal representative did not abate 

and was subject to revival by or against a successor.

In 1852, following the adoption of Kentucky’s Third Constitution, the 

legislature undertook a wholesale revision of the statutes. Included in this 

effort were provisions related to executors and administrators. The provisions 

of the 1842 Act were simplified, as follows:

When any personal representative shall commence a suit or 

action, or shall be sued, and shall die, be removed, or superseded 

by another, before the termination of the suit or action, his 

successor may, by order of court, be substituted in the place or 

stead of the original plaintiff or defendant, the opposite party being 

notified of such order.
13

Rev. Stat. ch. 37, Art. 1, § 15 (Ky. 1852).12 This compares with the virtually 

identical language in KRS 395.280: “[w]hen any personal representative 

commences an action or is sued, and then dies, is removed, or is superseded 

by another before the termination of the action, his successor may, by order of 

court, be substituted for the original plaintiff or defendant.” 

While we no longer worry so much about actions at law/equity, that is 

the origin of KRS 395.280 and clarifies its purpose: an action brought by or 

against a personal representative who then dies does not abate with that death 

but may be revived by the substitution of his/her successor. That purpose, 

survival of the action, however, addresses an issue separate from the timing 

within which the substitution/revival must occur. In 1851, the legislature 

moved all the revival provisions13 to the old Civil Code, including the one-year 

limitation on revival of cases involving a personal representative, and the 

predecessor statute to KRS 395.280 was then retained in the old Revised 

Statutes (Ky. 1852). And this is where they remained until the adoption of the 

present Civil Rules in the early 1950s and the moving of substantive provisions 

of revival to Kentucky Revised Statutes. 

3. CR 25.01 framework.

With this clear understanding of the meaning and purpose of KRS 

395.280, fitting these three statutes, KRS 395.278, 395.280 and 411.140, into 

12 The same language was included in the 1873 statutory revision, Gen. Stat. 

ch. 39, art. 1 § 15 (Ky. 1873), and virtually identical language in the 1894 statutory 

revision following the adoption of the current constitution. Ky. Stat. § 3844 (1894).

13 See 1 MOREHEAD & BROWN, at 85-90.
14

the framework of CR 25.01 demonstrates that all serve different purposes, 

none are superfluous, and inform our decision in this case. The first two 

sentences of CR 25.01(1) provide: “[i]f a party dies during the pendency of an 

action and the claim is not thereby extinguished, the court, within the period 

allowed by law, may order substitution of the proper parties. If substitution is 

not so made the action may be dismissed as to the deceased party.” (Emphasis 

added). A wrongful death action, because filed by a personal representative,

survives the death of the personal representative (or does not permanently 

abate and is subject to revival by substitution) by virtue of KRS 395.280. 

Similarly, a personal injury claim survives (or does not permanently abate and 

is subject to revival by substitution) by virtue of KRS 411.140. In other words, 

these sections are the statutory authority, upon the death of a party, for such 

claims “not [being] thereby extinguished,” and KRS 395.278 in both instances 

provides the one-year period allowed by law for substitution.

To be clear, Shanita, as administratrix, filed the wrongful death action on 

behalf of Ayanna’s estate. When Shanita, who was a party, died, KRS 395.280

provided that the wrongful death claim did not permanently abate, but rather

became dormant and was subject to revival by timely substitution. When 

timely revival did not occur with one year, KRS 395.278, the wrongful death 

action was properly subject to dismissal. CR 25.01(1).

Similarly, Lena individually filed a personal injury claim. When she died, 

KRS 411.140 provided the authority that her personal injury claim did not 

abate but was subject to revival by timely substitution. Initially, this occurred, 
15

and Shanita as administratrix was substituted as a party. However, when 

Shanita died, the claim was again rendered dormant but was subject to revival 

by timely substitution. Again, when timely revival did not occur with one year, 

KRS 395.278, Lena’s personal injury claim was properly subject to dismissal. 

CR 25.01(1).

B. Real Party in Interest versus Nominal Party

While the foregoing analysis resolves the issues in this matter, Appellees 

raise additional points that these clear, simple, easily applied statutes 

somehow do not apply because of a distinction in whether a personal 

representative is a real party in interest or merely a nominal party. 

The Appellees advocate that we draw a distinction between a personal 

representative as a nominal party as opposed to a real party in interest. This 

“choice” ignores that in almost any postmortem litigation, the personal 

representative is not only a necessary party but also the only party authorized 

by statute to bring or defend actions. See KRS 395.195(19) (granting personal 

representative the power to “[p]rosecute or defend claims, or proceedings in any 

jurisdiction for the protection of the estate and of the personal representative in 

the performance of his duties[]”); KRS 396.055(1) (actions on disallowed claims 

to be brought against personal representative); KRS 411.130(1) (wrongful death 

action “shall be prosecuted by the personal representative of the deceased[]”).14 

14 Our case law recognizes exceptions to the statutory requirement of the 

personal representative bringing a wrongful death action in the instances of refusal by 

the personal representative to bring the action, fraud, or collusion. Louisville & 
16

Our case law recognizes the personal representative as a necessary party. 

Knox Cnty. v. Kelly’s Adm’x, 268 Ky. 361, 364, 105 S.W.2d 141, 142 (1937). 

Further, CR 17.01 states “[e]very action shall be prosecuted in the name of the 

real party in interest, but a personal representative . . . may bring an action 

without joining the party or parties for whose benefit it is prosecuted.” This 

civil rule reinforces the statutory framework that estate beneficiaries or 

wrongful death beneficiaries are not necessary parties to postmortem litigation; 

the personal representative is. To quote our predecessor court, “beneficiaries 

of the [wrongful death] action are not proper parties.” Turner, 290 Ky. at 606, 

162 S.W.2d at 221.

Unlike corporations15 or limited liability companies,16 the legislature has 

not seen fit to endow estates as legal entities. Bolen v. Bolen, 169 S.W.3d 59, 

61 n.2 (Ky. App. 2005). The statutes referenced above, KRS 395.195, KRS 

396.055, and KRS 413.130, as well as all of KRS Chapters 395 and 396, lead 

Nashville R.R. Co. v. Turner, 290 Ky. 602, 606, 162 S.W.2d 219, 221 (1942). Neither 

refusal, fraud, nor collusion has been alleged in this case.

15 By statute, “[t]he corporate existence shall begin when the articles of 

incorporation are filed by the Secretary of State.” KRS 271B.2-030(1). Among the 

general powers of a corporation are the powers “to do all things necessary or 

convenient to carry out its business and affairs, including without limitation power to: 

(a) Sue and be sued, complain and defend in its corporate name[.]” KRS 271B.3-

020(1); see Schultz v. Gen. Elec. Healthcare Fin. Servs. Inc., 360 S.W.3d 171, 174 (Ky. 

2012) (stating “widely accepted” general rule “that a corporation should be viewed as a 

separate legal entity[]”).

16 A limited liability company (“LLC”) is expressly designated by statute as “a 

legal entity distinct from its members[,]” KRS 275.010(2), and members of an LLC are 

not proper parties in any action by or against the LLC. KRS 275.155. See also Turner 

v. Andrew, 413 S.W.3d 272, 277 (Ky. 2013) (holding that only proper party to bring 

suit for lost business income was the LLC and not its sole member).
17

to that conclusion. Resolution of whether an estate is or is not a legal entity is 

not, however, essential to our decision.

While an administrator has been referred to as a “nominal party” in our 

case law—since he/she/it pursues or defends actions on behalf of the 

beneficiaries—that same case law, statutes, and our rules recognize that the 

administrator is the only party with power to initiate or defend actions. See 

Thomas’ Adm’r v. Maysville Gas Co., 112 Ky. 569, 575, 66 S.W. 398, 399 

(1902); KRS 395.195(19) (personal representatives’ power to sue or defend 

actions); KRS 396.055 (actions to enforce denied claims to be brought against 

personal representative).17

1. Wrongful death claim.

In Pete v. Anderson, 413 S.W.3d 291, 300 (Ky. 2013), we reiterated that 

“the personal representative is the only party that may maintain the wrongful 

death cause of action on behalf of the estate.” We stated “[t]his contention is 

uncontested as the plain language of the statute supports it.” Id. We further 

reaffirmed that the personal representative is a nominal party, and the 

statutorily identified beneficiaries are the real parties in interest. Id. at 299-

301. As to the estate, we pointedly held, “[b]ased on the plain language of KRS 

411.130 and our holding in Ping [v. Beverly Enterprises, Inc.], we must reject 

17 Our case law has vacillated in referring to a personal representative as “real 

party in interest” or as “nominal party.” Compare, e.g., Hammons v. Tremco, Inc., 887 

S.W.2d 336, 338 (Ky. 1994) (“real party in interest”), and Snyder v. Snyder, 769 

S.W.2d 70, 72 (Ky. App. 1989) (“real party in interest”), with Pete v. Anderson, 413 

S.W.3d 291, 300 (Ky. 2013) (“nominal party”). Our opinion and resolution of the 

matter before us does not require resolution of this discrepancy. 
18

[the] contention that the wrongful death action belongs to the estate.” Id. at 

301 (emphasis added). Since the wrongful death beneficiaries, the real parties 

in interest, are not proper parties to a wrongful death action, Turner, 290 Ky. at 

606, 162 S.W.2d at 221; Thomas’ Adm’r, 112 Ky. at 575, 66 S.W. at 399, and 

because the action does not belong to the estate, only one possible party exists

before the court: the personal representative. And here, that party, Shanita,

died. As discussed, supra, KRS 395.280 is the statutory authority that the 

wrongful death action does not permanently abate, and revival by substitution

is permissible, but KRS 395.278 requires that revival be made within one year. 

Less than two years ago, we clarified that revival is accomplished by 

substitution, and that a two-part process is unnecessary. Currin, 615 S.W.3d 

34. We stated,

From the beginning, revival was a means by which the legislature 

sought to alleviate the already harsh realities of death. Revival 

was, and continues to be, a vehicle by which successors-in-interest 

give notice to the court of the passing of the original party and 

signal their intent to take on the rights and liabilities associated 

with the original action.

Id. at 38-39. We affirmed that “KRS 395.278 is a statute of limitation, and that 

a motion for substitution properly filed with the court in accordance with CR 

25.01(1) within the one-year allotted by the legislature constitutes revival.” Id.

at 39. Furthermore, this Court and its predecessor have held time and again 

that KRS 395.278 is a statute of limitations and is not subject to extension. 

Hardin Cnty. v. Wilkerson, 255 S.W.3d 923, 926-27 (Ky. 2008); Hammons, 887 

S.W.2d at 337; Daniel, 445 S.W.2d at 701. 
19

Neither Wheeler v. Hartford Accident & Indemnity Co., 560 S.W.2d 816 

(Ky. 1978) nor Vaughn’s Administrator v. Louisville & Nashville Railroad Co., 

297 Ky. 309, 179 S.W.2d 441 (1944), compel a different result. Wheeler merely 

stands for the proposition that the personal representative is the sole, exclusive 

party to maintain a wrongful death action, 560 S.W.2d at 819, and the 

decedent’s father’s, who acted as personal representative, settlement and 

release with an insurance company of “all claims arising out of the death of 

[the deceased],” served as a release of the tortfeasor. Id. at 817. Consequently, 

the deceased’s mother, as wrongful death beneficiary, was precluded from 

asserting an independent wrongful death claim. Id. at 819.

Vaughn’s Administrator involved the application of the doctrine of res 

judicata to a unique factual situation involving two lawsuits arising out of the 

death of three boys in a vehicle which collided with a train at a crossing. In the 

first action, the administrators of two boys who were passengers in the vehicle 

sued the railroad and the parents of the driver. 297 Ky. at 311, 179 S.W.2d at 

442. The claim against the parents was based on their vicarious liability for 

the negligence of the driver as their employee. Id. A jury returned a verdict in 

favor of the plaintiffs and against both sets of defendants. Id. at 312, 179 

S.W.2d at 443. The second action was the wrongful death claim by the driver’s 

father, as administrator, against the railroad. The railroad defended on 

grounds of res judicata, based on the driver’s negligence as determined in the 

first action. Our predecessor court held that because the parents had 

participated as parties in the first action in which their son’s negligence had 
20

been determined, and because the wrongful death action was prosecuted by 

the administrator, not for his, but for their benefit, they were estopped to 

relitigate the question of their son’s negligence. Id. at 315-16, 179 S.W.2d 444-

45. The issue of revival and substitution was not an issue and was not 

addressed.

The proper resolution of this matter is that the trial court properly 

dismissed the claim of the Estate of Ayanna Henry against AWH and Mr. Roof

for failure to timely revive the wrongful death claim by substitution of an 

administrator/rix de bonis non within one year of the death of Shanita.

2. Personal Injury Claim.

With regard to the personal injury claim, as an initial matter, any 

argument that CR 25.01 is limited to the original party filing the action is 

simply untenable. The rule provides,

(1) If a party dies during the pendency of an action and the 

claim is not thereby extinguished, the court, within the period 

allowed by law, may order substitution of the proper parties. If 

substitution is not so made the action may be dismissed as to the 

deceased party. The motion for substitution may be made by 

the successors or representatives of the deceased party or by 

any party. . . .

CR 25.01 (emphasis added). No doubt exists but that Shanita, in a fiduciary 

capacity, was a party plaintiff following her substitution to Lena’s claim. 

Furthermore, KRS 395.278 contemplates the possibility of sequential revival(s) 

in requiring “[a]n application to revive an action in the name of the 

representative or successor of a plaintiff . . . shall be made within one year 

after the death of a deceased party.” (emphasis added). 
21

In the context of estate administration, the term “successor” is a term of 

art and refers to a second or subsequent person or entity appointed by the 

district court. See KRS 395.280 (stating “[w]hen any personal representative 

commences an action or is sued, and then dies, is removed or is superseded by 

another before the termination of the action, his successor may, by order of 

court, be substituted for the original plaintiff or defendant[]”) (emphasis 

added);18 KRS 395.300 (authorizing “[a]n administrator de bonis non or any 

other successor appointed in the place of a personal representative who 

has resigned or has been removed or whose letters have been revoked, or who 

has ceased to act or has died, may maintain an action against the former 

personal representative[.]”) (emphasis added); see also Robertson v. Robertson's 

Adm'r, 174 Ky. 836, 838, 192 S.W. 878, 878–79 (1917) (stating that following 

death of executrix, action should have been revived in the name of her 

“successor in the office of executor of the estate of her husband, and not 

by her administrator[]”) (emphasis added); Thomas’ Adm’r, 112 Ky. at 574-75, 

66 S.W. at 399 (holding that following death of administrator, trial court erred 

in denying revival by his successor, the administrator de bonis non)

(emphasis added).

The Appellees argue that because Lena’s claim was timely revived by the 

substitution of Shanita as administratrix, no further revival is necessary or 

18 By its clear and simple terms, KRS 395.280 applies only to an action brought 

by or against a personal representative. As Lena filed her own personal injury claim, 

we only need consider the impact of KRS 395.278 on the facts of this case.
22

required. As previously explained, this interpretation does not comport with 

the statute’s plain language or case law. In this case, Lena, the original 

plaintiff, died. Shanita, her administratrix, i.e., her representative, properly 

revived that action by substitution, and thereby became the party plaintiff. 

When Shanita died, her successor, Cochran, properly designated as 

administrator de bonis non of Lena’s estate, was required to revive again, by 

substitution, the personal injury action as successor to Shanita. 

Unfortunately, this second revival/substitution would have been untimely 

since he was appointed over two years after her death. KRS 395.278 clearly 

contemplates successive personal representatives, and provides that timely 

revival, within one year of the personal representative’s death, is required in 

each case.

IV. CONCLUSION

As demonstrated in this case, several problems arise in ignoring the 

statutory requirement that a successor personal representative be substituted 

within a year. Years can pass with no resolution or movement towards 

resolution. Legitimate questions arise as to whom exactly “Appellees’ counsel” 

represents. Repetition is unnecessary of the extensive issues, including 

possible violations of the Rules of Professional Conduct, all as set out in note 8, 

supra, occasioned by the failure to timely notify opposing counsel of Shanita’s 

death and to secure the appointment of a successor personal representative. 

Suffice to say, this family, the Bailey/Henry family, appears not to have been 

served well in the prosecution of this case.
23

In this case, at oral argument, “Appellees’ counsel” conceded that he has 

no client. The parties have represented that Brian Cochran, the administrator 

de bonis non of both the Estates of Ayanna Henry and Lena Bailey, died over a 

year ago.19 When asked, “who [sic] do you represent?”, counsel answered, “the 

family.” Unless we are willing to grant representation to “the family,” or 

perhaps to the “real parties in interest” who are not actual parties to this 

litigation, CR 17.01, we ignore the plain provisions of KRS Chapter 395 which 

repose authority in the duly-appointed and acting personal representative, 

whose statutory powers are to be exercised “reasonably for the benefit of the 

interested persons[.]” KRS 395.195. And when that representative dies, as in 

this case, her powers die with her, and only with the appointment of a 

successor, an administrator/rix de bonis non, can that successor rehire 

counsel and then revive the action.

Finally, the facts of this case are tragic. And while it may be that some 

events were out of the control of anyone involved in this case, compliance with 

KRS 395.278 was not. The procedures and rules imposed specifically by KRS 

395.278 and CR 25.01 and generally by KRS Chapter 395 are simple and 

relatively easy to follow, as anyone with even a passing familiarity with 

Kentucky probate and administration practice can attest. Once Shanita Bailey 

19 Mr. Cochran’s death occurred on August 11, 2022, as confirmed by his 

obituary listed on the website of the A.D. Porters & Sons Funeral Home, Louisville, Ky. 

(source: https://www.adporters.com/obituaries/Brian-Cochran/-!/TributeWall) (last 

accessed Aug. 26, 2023). The obituary states that he is “survived by his 

grandchildren, Aniya Henry, Braylen Abren, Brandon Abren, Jr., Brian Bailey[.]”
24

died, KRS 395.278 imposed a strict one-year limitation on revival of the 

wrongful death claim with respect to Ayanna Henry and the personal injury 

claim of Lena Bailey. Counsel was clearly aware of the necessity for revival 

because Shanita Bailey was timely appointed as administratrix of Lena Bailey’s 

estate and that action initially revived. Following Shanita Bailey’s death, a 

delay of over two years in appointing her successor was simply unconscionable, 

especially given the availability of securing the appointment of the Jefferson 

County Public Administrator.20 Accepting the Appellees’ arguments as to why 

20 KRS 395.380(1) states that “[t]he District Court of each county shall appoint 

a discreet, fit person to act as administrator of decedents' estates of which there is no 

personal representative[.]” The subsequent section, KRS 395.390, provides, 

(1) The District Court of a county which has a public administrator and 

guardian shall, after the expiration of sixty (60) days from the death of 

the decedent, order the public administrator and guardian to administer 

the estate of the decedent where the surviving spouse and heirs waive 

their right to be appointed, or if the surviving spouse does not nominate 

a suitable administrator, or in the event any of the persons designated in 

KRS 395.040 are unable, or found to be incapable of handling or 

managing the estate, or if from any other cause there is no personal 

representative. If there is no public administrator and guardian, the 

court shall order the sheriff to administer the estate.

KRS 395.390. Whatever may be the case in other counties, Jefferson County has an 

active Public Administrator. See Andrew Wolfson, Lawyers in Ugly Fight to Snag 

Lucrative Job You’ve Probably Never Heard of, COURIER JOURNAL, Jan. 14, 2019 

(detailing 2019 contest for selection as Jefferson County Public Administrator, in 

which position Hon. Chris Meinhart had served for almost 20 years). Any suggestion 

that the appointment of the Public Administrator would have delayed this matter or 

imposed a needless hurdle is simply incorrect, since securing that appointment would 

have taken a matter of weeks, if not days. See Jefferson District Court Local Rule 4 (in 

a large county like Jefferson, probate dockets are usually called daily). The Appellees’ 

Briefs note that this case implicates consideration of “open courts.” This assertion 

seems somewhat ironic considering that Appellees’ counsel held the keys to the courts 

and could have easily opened the doors following Shanita Bailey’s death.

We reiterate the further irony of the fact, as previously noted, that Chris 

Meinhart, the then serving Jefferson Public Administrator, was appointed as 

administrator for Ayanna’s Estate on July 23, 2015, but that the Order of 

Appointment was rescinded, and Shanita Bailey was appointed in January 2016. 

Estate of Ayanna Henry, Jefferson Dist. Ct., 15-P-002281. The issues in this case 
25

KRS 395.278 should not apply in this case effectively overrules Pete v. 

Anderson, contravenes a number of statutes within KRS Chapter 395, will 

create needless confusion among our bench and bar as to when KRS 395.278 

may or may not apply in the future, and calls into question settled principles of 

principal/agent law. The better decision is simply to apply the statute as 

written. 

The Court of Appeals is reversed, and the Jefferson Circuit Court’s 

summary judgment is reinstated. This matter is remanded to the Jefferson 

Circuit Court for such matters as remain unresolved.

VanMeter, C.J.; Conley, Keller, Lambert, Nickell, and Thompson, JJ., 

sitting. Conley, Lambert, Nickell, and Thompson, JJ., concur. Keller, J., 

dissents by separate opinion. Bisig, J., not sitting

KELLER, J., DISSENTING: The question at issue in this appeal can be 

simply stated but is not so simply answered: Does the one-year statute of 

limitations for revival under Kentucky Revised Statutes (KRS) 395.278 apply to 

the substitution of an administrator de bonis non upon the death of a personal 

representative? Because I find that the death of a personal representative, a 

mere nominal party, does not trigger the requirement of revival, I believe the 

answer is no and dissent from the Majority. Such a conclusion is further 

could have been easily avoided if that appointment had not been rescinded, and if 

Meinhart had been timely appointed in Lena’s Estate and her personal injury action 

timely revived.
26

evidenced by the modern statutory framework encompassing revival and 

substitution, and the legislative history of those statutes. 

Revival and substitution each occupy distinct territories in this 

Commonwealth’s probate practice framework. Upon the death of a party in 

interest to a pending action, “that action is abated and lies dormant until it is 

revived by a proper successor-in-interest.” Estate of Benton v. Currin, 615 

S.W.3d 34, 36 (Ky. 2021). An application to “revive” that action is “a vehicle by 

which successors-in-interest give notice to the court of the passing of the 

original party and signal their intent to take on the rights and liability 

associated with the original action.” Id. at 39 (emphasis added). Conversely, 

“substitution” has long been merely the summary mechanism the court 

employs to insert the correct parties into a pending action. See Substitution of 

Parties, BLACK’S LAW DICTIONARY (11th ed. 2019) (The replacement of one litigant 

by another because of the first litigant’s death . . . .”). A court may order 

substitution of the proper parties for a myriad of reasons not limited to the 

death of a party in interest. See Kentucky Rule of Civil Procedure (CR) 25.02 

(incompetency); CR 25.03 (transfer of property interest); CR 25.04 (death, 

resignation, replacement, or removal of a public official). 

Until recently, Kentucky’s courts operated under a two-step framework 

that required, upon the death of a party, any successor-in-interest seeking 

both to revive an action and substitute himself in that action to file two 

independent motions. This Court, in Estate of Benton, held that a lone motion 

for substitution was sufficient to constitute revival, because such a motion 
27

provides the notice necessary for revival. 615 S.W.3d at 39 (“Substitution of the 

proper parties accomplished that goal.”). However, this Court did not hold that 

revival, in and of itself, would be sufficient to constitute a substitution. Perhaps 

this is because a motion for substitution requires the court to “ascertain and 

evaluate whether the individual or entity filing the motion for substitution is 

appropriate,” whereas a motion for revival places no such responsibilities on 

the court. Id. at 39 n.16. While revival and substitution are often accomplished

contemporaneously upon the death of a real party in interest, it is clear the two 

exist separately. If they did not, there would be no sense in employing the two 

separate concepts. As such, I believe that when the legislature explicitly makes 

a conscious choice to denote either revival or substitution, this Court should 

listen. 

I agree with the Majority that upon the death of a party in interest to a 

pending action, “that action is abated and lies dormant until it is revived by a 

proper successor-in-interest.” Id. at 36. However, the Majority gives little 

credence to this Commonwealth’s caselaw differentiating a “real party in 

interest” from a merely “nominal party.” That distinction is crucial, as the 

death of a mere nominal party does not trigger the requirement of revival – only 

substitution. 

Under Kentucky Rule of Civil Procedure (CR) 17.01, “Every action shall 

be prosecuted in the name of the real party in interest, but a personal 

representative . . . may bring an action without joining the party or parties for

whose benefit it is prosecuted.” (emphasis added). By use of the conjunction 
28

“but,” this rule makes clear that a personal representative is not the real party 

in interest. See 2 Ky. Prac. Prob. Prac. & Proc. Necessary Parties § 1867 (2022)

(“[I]t may be said generally that every action shall be prosecuted in the name of 

the real party in interest except that certain fiduciaries including personal 

representatives . . . may maintain an action without joining the parties for 

whose benefit the action is prosecuted.”). Instead, in wrongful death actions 

“[t]he administrator [or personal representative] is merely a nominal plaintiff. 

The real parties in interest are the beneficiaries whom he represents.” Vaughn’s 

Adm’r v. Louisville & N.R. Co., 179 S.W.2d 441, 445 (1944); see also Pete v. 

Anderson, 413 S.W.3d 291, 299 (Ky. 2013). The personal representative’s 

status as a necessary party in a wrongful death action, as noted by the 

Majority, does not change this distinction, as the “cause of action [is] for the 

sole benefit of [the] named beneficiaries.” Id. The same is true for a personal 

representative of an estate in any other type of action, including a personal 

injury action of a deceased that has been revived, because the true party in 

interest is the estate of the deceased. See Pete, 413 S.W.3d at 300 (citing Ping 

v. Beverly Enters., Inc., 376 S.W.3d 581, 598–99 (Ky. 2012)) (“[A] survival action 

is derivative of a personal injury claim which belongs to the estate.”)

The replacement of a nominal party, such as a personal representative, 

regardless of reason, does not trigger a requirement for revival of the claim, as 

there has not been a change to the real party in interest to the claim. This is 

consistent with the “general rule . . . that an action does not abate by reason of 

the death of a person where the action was brought by or against a person in a 
29

representative capacity, or by or against a person in the capacity as a public 

officer.” 1 C.J.S. Abatement and Revival § 134 (2023) (footnotes omitted); see 

also Bowles v. Bowles, 18 S.W.2d 989, 990–91 (1929) (“The action was not of 

the kind that abated on the death of [the] administratrix . . . . [S]he was a mere 

nominal plaintiff.”); Thomas’ Adm’r v. Maysville Gas Co., 66 S.W. 398 (1902).

Perhaps this is because the real party in interest is readily identifiable, and still 

“before the court.” See Koehler v. Com. by and ex rel. Luckett, 432 S.W.2d 397, 

399 (Ky. 1968); Goben v. Keeney, 626 S.W.3d 692, 695, n.4 (Ky. App. 2021).

Upon the death or removal of a nominal party, the real party in interest 

remains, and only a substitution of a new nominal party is required. 

Accordingly, I reach a conclusion opposite that of the Majority: the oneyear statute of limitations governing revival, KRS 395.278, is inapplicable to 

the claims before this Court today because the death of a mere nominal party 

does not trigger the requirement of revival, only substitution. I find this 

conclusion is further supported, and even confirmed, by the plain language of 

the statutes, and their legislative history, governing both revival and 

substitution, ever mindful that “the ‘plain meaning’ of the statute controls.” 

Commonwealth v. McBride, 281 S.W.3d 799, 803 (Ky. 2009).

KRS 411.140 allows for certain personal injury claims to survive after the 

death of the person injured. The statute requires those claims to either be (1) 

brought by the personal representative of the estate of the deceased injured 

person or (2) revived by the personal representative of the estate if the decedent 

had initiated the claim prior to his or her death. This statute and its 
30

predecessor statutes have explicitly required revival in the above-described 

circumstance since at least 1812, according to the Majority. KRS 395.278, in 

turn, provides the statute of limitations for revival of a claim. It is a general 

statute and applies to all types of claims that are not extinguished by the death 

of a party and that require revival.

KRS 395.280, on the other hand, allows for certain claims to survive 

after the death of a personal representative. It applies only when a “personal 

representative commences an action or is sued” and subsequently “dies, is 

removed or is superseded by another” while the action is still pending. In those 

specific circumstances, the legislature has delineated that the deceased 

personal representative’s successor may be substituted by the court. This 

more specific statute does not mention revival at all and assigns no statute of 

limitations upon substitution. I assert that KRS 395.280’s absence of any 

reference to revival is confirmation of the legislature’s understanding that the 

death or removal of a personal representative, a mere nominal party, does not 

trigger a requirement of revival. CR 25.01, as the Majority correctly observes, is 

the procedural statute that instructs the court how to substitute a personal 

representative’s successor into a pending action once his predecessor has died 

or been removed. Like KRS 395.280, CR 25.01 does not reference revival, only 

substitution. The Majority’s holding that a claim must be revived when a 

personal representative dies adds language to this statutory scheme that does 

not exist.
31

The Majority traces the history of KRS 395.280 back to 1842. The 1842 

version of the statute stated that when an executor or administrator died or 

was no longer in office, the claim to which he was a party could be revived. 

The Majority then explains that “the legislature undertook a wholesale revision 

of the statutes in 1852.” The 1852 statute looks much more similar to today’s 

version of KRS 395.280 than did its predecessor. In 1852, the legislature 

changed the statute to no longer reference revival of a claim after the death of 

the personal representative but instead to say that a successor may be 

substituted. As the Majority notes, the same language was included in the 

1873 statutory revision and virtually identical language was included in the 

1894 statutory revision.

The current version of KRS 395.280, which only references substitution 

and does not mention revival, was enacted in 1942 and has remained 

unchanged since then. This is true even after the significant work of the Civil 

Code Committee in the early 1950s and the repeal of KRS 395.275-.277 and 

enactment of KRS 395.278 in 1974. As previously stated, I believe the 

legislature’s conscious choice to remove revival from KRS 395.280’s 

predecessor statutes and require only substitution is evidence of its 

understanding that the death of a personal representative does not trigger the 

requirement of revival. 

Revival has continued to have a one-year statute of limitations while 

substitution has continued to have no statute of limitations attached. It seems 

clear to me that “the legislature has been proactive in amending” the relevant 
32

statutes and yet has declined to expressly apply a statute of limitations to 

substitution of parties. Hughes v. UPS Supply Chain Sols., Inc., No. 2021-SC0444-DG, 2023 WL 5444612, at *5 (Ky. Aug. 24, 2023) (to be published). Under 

the plain language of the relevant statutes, there is no express statute of 

limitations applicable to the mere substitution of a personal representative. 

Having explained the critical difference between a nominal party and a 

real party in interest, as well as the impact of that difference on the 

requirements of revival and/or substitution, I now must apply those differences 

to the claims before us today. As the Majority accurately described, we have 

two claims before us. The first is Lena Bailey’s personal injury claim which was 

successfully revived by Shanita Bailey, as administratrix of Lena’s estate, prior 

to Shanita’s death. The second is Ayanna Henry’s wrongful death claim 

brought by Shanita, as administratrix of Ayanna’s estate, prior to Shanita’s 

death. Shanita, at the time of her death, was the nominal plaintiff prosecuting 

each claim. Because she was only a nominal party in each claim, her death did 

not trigger a requirement that the claims be revived. At all times during the 

litigation the trial court had the real parties in interest before it – the estates of 

Lena Bailey and Ayanna Henry. Shanita’s death only required that a new 

nominal party be substituted into the claims as a new personal representative 

of the estates. Because only substitution was required, the one-year statute of 

limitations governing revival was inapplicable. Accordingly, the trial court erred 

in dismissing the claims based on the alleged untimely substitution of a new 

nominal party. 
33

The Majority expresses concern that, absent a statute of limitations, 

cases such as these can linger in the trial court for years. I find this concern 

unavailing. This Court has always expressed a desire to allow claims to be 

resolved on their merits. See e.g., Mullins v. Commonwealth, 262 S.W.2d 666, 

667 (Ky. 1953). Further, trial courts have mechanisms at their disposal to 

ensure that cases before them move forward in a timely manner. The facts of 

this case are tragic and, quite frankly, unlikely to be repeated. The Majority’s 

disposition in this case denies justice to the Bailey/Henry family and results in 

unnecessary hurdles to the prosecution of claims in the future. 

Respectfully, I dissent.

COUNSEL FOR APPELLANT/APPELLEE, MR. ROOF OF LOUISVILLE, LLC:

John R. Martin, Jr. 

Hunter Rommelman

Landrum & Shouse, LLP

COUNSEL FOR APPELLANT/APPELLEE, AMERICAN WATER HEATER 

COMPANY:

Byron Norman Miller

Joseph Andrew Wright

Thompson Miller & Simpson PLC

COUNSEL FOR APPELLEES, THE ESTATE OF AYANNA HENRY, DECEASED 

(SUCCESSOR ADMINISTRATOR NOT YET APPOINTED):

Kevin Michael Monsour

Bruce Law Group, LLC

Charles E. Soechting, Jr.

Law Offices of Charles E. Soechting, Jr. 
34

COUNSEL FOR APPELLEES, THE ESTATE OF LENA BAILEY, DECEASED 

(SUCCESSOR ADMINISTRATOR NOT YET APPOINTED):

Kevin Michael Monsour

Bruce Law Group, LLC

Charles E. Soechting, Jr.

Law Offices of Charles E. Soechting, Jr.