RENDERED: APRIL 8, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-1048-MR

THE ESTATE OF AYANNA HENRY, 

DECEASED (SUCESSOR 

ADMINISTRATOR NOT YET 

APPOINTED); AND THE ESTATE OF 

LENA BAILEY, DECEASED 

(SUCCESSOR ADMINISTRATOR 

NOT YET APPOINTED) APPELLANTS 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE ANGELA MCCORMICK BISIG, JUDGE

ACTION NO. 15-CI-002902

AMERICAN WATER HEATER 

COMPANY AND MR. ROOF OF 

LOUISVILLE, LLC APPELLEES 

OPINION

VACATING AND

REMANDING

**   **  **

BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES.

COMBS, JUDGE: The Estate of Ayanna Henry and the Estate of Lena Bailey 

(referred to collectively as the Estates) appeal the dismissal of their civil action 
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against American Water Heater Company (American Water Heater) and Mr. Roof 

of Louisville, LLC (Mr. Roof). On appeal, the Estates argue that the trial court 

erred by concluding that they failed to timely substitute a new personal 

representative following the death of the original personal representative, who had 

been appointed to act for them both. They contend that the provisions of KRS1

395.278 (which impose a statutory limitations period for revivor of an action 

following the death of a party) do not apply following the death of an estate’s 

personal representative. After our review, we agree. Consequently, we vacate and 

remand for further proceedings.

On June 18, 2014, eleven-year-old Ayanna Henry was found dead in 

the basement of her home. Her mother, Shanita Bailey; grandmother, Lena Bailey; 

and her little sister, Aniya Henry, reported headaches and flu-like symptoms.

Therefore, first-responders tested for elevated levels of carbon monoxide in the 

home. The tests were positive for excessive carbon monoxide. 

On June 11, 2015, Shanita Bailey was appointed administrator of the 

Estate of Ayanna Henry. On the same day, Lena Bailey and Shanita Bailey,

individually; and Shanita Bailey in her capacity as administrator of Ayanna’s 

Estate and as next friend of Aniya, timely filed a personal injury and wrongful 

death action against multiple defendants, including American Water Heater and 

1 Kentucky Revised Statutes.
-3-

Mr. Roof. They alleged that the negligence of American Water Heater and Mr. 

Roof caused Ayanna’s death and personal injury to Lena Bailey, Shanita Bailey,

and Aniya Henry. 

Just weeks later, Lena Bailey died, and her action abated. Shanita 

Bailey was appointed personal representative of Lena’s Estate, and she timely

revived Lena’s claims on March 29, 2016. On August 5, 2016, Shanita Bailey 

died. Her individual claims abated.

Following Shanita Bailey’s death, counsel undertook to determine 

who would be substituted as administrator of each of the three decedents’ estates. 

On December 5, 2018, Brian Cochran, Lena Bailey’s long-term partner and father 

of Shanita Bailey, was appointed by the probate court as administrator of the 

estates of Shanita Bailey, Lena Bailey, and Ayanna Henry. However, Shanita 

Bailey’s individual claims were not timely revived. They were dismissed, and this 

appeal does not deal with that issue. 

Subsequently, American Water Heater and Mr. Roof filed motions for 

summary judgment. They argued that the claims of the Estates of Lena Bailey and 

Ayanna Henry had not been timely revived pursuant to the provisions of KRS 

395.278 (“the revivor statute”). The Estates argued that the provisions of the 

revivor statute were inapplicable. They contended that a new personal 

representative, Brian Cochran, could be substituted for Shanita Bailey pursuant to 
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the provision of KRS 395.280. This statute provides a summary procedure by 

which the court may order a substitute personal representative to replace one who 

dies or is removed from service. It does not impose an independent period of 

limitations on the procedure. 

On June 14, 2020, the Estates filed a motion to substitute under the 

provisions of KRS 395.280. The Estates argued that the statutory limitations 

period for revivor under KRS 395.278 could not be grafted onto the provisions of 

KRS 395.280 providing for the substitution of an estate’s personal representative. 

 The circuit court’s order was entered on July 23, 2020. Without 

addressing the motion filed by the Estates to substitute a personal representative 

for the deceased Shanita Bailey, the court concluded that the statutory limitations 

period of the revivor statute applied and that the limitations period had expired 

without the claims of the Estates having been revived. Consequently, it dismissed 

the Estates’ claims. This appeal followed. 

On October 19, 2020, the Estates filed in this Court a motion for

substitution. They requested that Brian Cochran be substituted as successor 

administrator so that the appeal could proceed. On October 26, 2020, Mr. Roof 

filed its response. It argued that this court lacked jurisdiction to order substitution 

of the Estates’ original personal representative.
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On October 29, 2020, American Water Heater responded to the 

Estates’ motion and made a motion to dismiss the appeal. It argued that the motion 

for substitution was untimely and that counsel for the Estates sought to prosecute 

the appeal without a live client. It contended that the Estates could not act without 

a personal representative and for that reason the appeal must be dismissed. The 

motions were passed to this merits panel for resolution by order entered on June 4, 

2021. The resolution of the motions and the merits of the appeal are mutually 

intertwined. 

Because this matter involves statutory interpretation -- i.e., the 

meaning, interrelationship, and application of the provisions of KRS 395.278 and 

KRS 395.280 -- we review the lower court’s decision de novo. Hauber v. Hauber, 

600 S.W.3d 204 (Ky. 2020). We do not defer to the circuit court’s interpretation of 

the statutes. Id. 

At common law, when a party died, his legal proceedings abated; the 

proceedings died with him. Hardin County v. Wilkerson, 255 S.W.3d 923 (Ky. 

2008). There was no method by which the decedent’s action could continue to be 

maintained. Id. 

In contrast to the common law, the provisions of KRS 395.278 

provide that an abated action can be revived. However, because the decedent’s 

action has abated, it cannot continue to be prosecuted in his name. Id. The 
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original action remains on the docket only as a placeholder for an action revived by

the personal representative of the decedent’s estate. Id. Revivor is the vehicle by 

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

party; revivor signals an intent to take on the rights and liabilities associated with 

the original action. Estate of Benton by Marcum v. Currin, 615 S.W.3d 34 (Ky. 

2021). 

 Pursuant to the provisions of KRS 395.278, the period during which 

an action may be revived by the successor or personal representative of the 

deceased party is expressly limited to one year. That provision operates as a 

statute of limitations; therefore, the period set forth in the statute is mandatory, and 

where a motion “to revive the action and to substitute the successor or personal 

representative of the deceased party is not made within the prescribed time, the 

action may be dismissed as to the deceased party. CR[2] 25.01(1).” Estate of 

Benton, 615 S.W.3d at 38 (quoting Hammons v. Tremco, Inc., 887 S.W.2d 336,

338 (Ky. 1994)).

In this case, Lena Bailey’s action abated upon her death. Shanita 

Bailey was duly appointed personal representative of Lena’s Estate, and Shanita 

revived Lena’s claims on March 29, 2016. There is no dispute concerning the 

timeliness of the revivor of Lena Bailey’s action. 

2 Kentucky Rules of Civil Procedure. 
-7-

On August 5, 2016, Shanita Bailey died. Upon her death, Shanita’s 

individual claims abated; they were not revived pursuant to the provisions of KRS 

395.278. Consequently, they were dismissed pursuant to the provisions of CR 

25.01. Those individual claims are irrelevant to this appeal. 

The dispute on appeal focuses only upon what happened next. On 

December 5, 2018, Brian Cochran was appointed by the probate court as 

administrator of the Estates of Lena Bailey and Ayanna Henry. On June 14, 2020, 

well beyond the period prescribed by the provisions of KRS 395.278, the Estates 

filed a motion to substitute under the provisions of KRS 395.280. The statute 

provides as follows: 

When 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.

Because it erroneously believed that Brian Cochran’s substitution under KRS 

395.280 was time-barred, the circuit court declined to enter the order permitted by 

the statute.

 The statute provides a summary procedure by which an estate’s 

personal representative may be replaced upon her death or removal. Upon the 

appointment of the estate’s representative, the mechanism for administering the 

decedent’s assets and liabilities has been implemented; the conduct of the 
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decedent’s estate is supervised by the probate court. Death or removal of the 

appointed representative does not cause the estate’s action to abate. Instead, her 

death or removal merely requires substitution with yet another representative. 

 The procedure established by KRS 395.280 does not refer to revivor 

of an action, and it does not contain a period of limitations. Revivor applies as a 

concept only to the estate of a deceased person -- not to the replacement of a 

personal representative who was charged with administration of the revived action 

brought in the name of the estate. The limitations period established by the 

provisions of KRS 395.278 governs the procedure by which a deceased party’s 

action is revived in the name of her estate’s personal representative. It is not 

applicable to the subsequent substitution of the personal representative. 

Consequently, the trial court erred by failing to order the substitution of the 

Estates’ personal representative. 

The order of the Jefferson Circuit Court is vacated. This case is 

remanded for further proceedings. 

ALL CONCUR.
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BRIEFS FOR APPELLANTS:

Kevin M. Monsour

Louisville, Kentucky

Charles E. Soechting, Jr.

Dallas, Texas

BRIEF FOR APPELLEE

AMERICAN WATER HEATER 

COMPANY:

Byron N. Miller 

Joseph A. Wright

Louisville, Kentucky 

BRIEF FOR APPELLEE MR. ROOF 

OF LOUISVILLE, LLC: 

John R. Martin, Jr.

Hunter Rommelman

Louisville, Kentucky