finding that parties “are at liberty to contract for a limitation period less than the period fixed by statute”
How later courts described this case
- finding that parties “are at liberty to contract for a limitation period less than the period fixed by statute”
- recognizing an exception to the general rule requiring an affirmative act if the party who remains silent has a legal duty to speak or disclose information
- “[W]here the law imposes a duty of disclosure, a failure of disclosure may constitute concealment under KRS 413.190(2), or at least amount to misleading or obstructive conduct.”
- failure to comply with disclosure requirements under assumed name statute sufficient "concealment” for statutory estoppel because this failure to disclose prevented plaintiffs from naming proper defendants within statute of limitations
Written by the judges who cited it.
The opinion
REYNOLDS, Justice,
dissenting.
I respectfully dissent. The majority, with acknowledgement that numerous deci *918 sions of this Court exist and demonstrate firm commitments to enforce the statute of limitations, now takes a quantum leap and affords another exception to the rule.
At issue is whether the failure of partners operating a business under an assumed name to comply with KRS 365.015 tolls the statue of limitations in a negligence action. Although Hayes v. Providence Citizens’ Bank & Trust Co., 218 Ky. 128 , 290 S.W. 1028 (1927), charted the purpose of the statute, it has, this date, been improvidently expanded to provide a nonlegislative purpose under the claim of equitable estoppel. Hayes, sufra, provided at page 1029:
“There is nothing inherently vicious in doing business under an assumed name. Such manner of doing business was lawful before the statute was passed.... The statute being penal in its nature and in derogation of the common law, it should not be construed so as to include within its purview cases which do not clearly come within it....
An examination of the statute discloses two very pertinent facts: (a) It expressly imposes for its nonobservance the rather light penalty of a fine between the limits of $25 and $100, or imprisonment from 10 to 30 days, or both; (b) it does not expressly impose any further penalty or consequence. This is a potent indication of a legislative purpose that the penalty expressed should be exclusive....”
The same rationale applies to this case and leads to an unalterable conclusion that failure to comply with the assumed name statute does not prohibit a person from asserting a statute of limitation defense when it is applicable.
There is no appearance, in this record, of an act or conduct which, in point of fact, has misled or deceived a plaintiff or obstructed or prevented him from instituting his suit. It appears to be of no consequence that the decision gratuitously condones a party’s unexplainable laxity.
No one disputes that statutes of limitation may work hardships, but the services which they render as a whole outweigh the injuries inflicted upon the unwary. In all events, the broadening of exceptions to the statute is a legislative and not a judicial function since they derive their force alone from statutory enactment. See Lingar v. Harlan Fuel Co., 298 Ky. 216 , 182 S.W.2d 657 (1944).
There is no conduct to bring the partner within the provisions of KRS 413.190(2) or equitable estoppel. As stated in Hackworth v. Hart, Ky., 474 S.W.2d 377 (1971), unless the conduct of the defendant amounts to an absconding or concealment or obstructs the prosecution of the action it will not toll the running of the statute of limitations.
A partner, in Kentucky, cannot be sued, and a partner of the appellee, Mayfair Diagnostic Laboratory, was not joined as a defendant until 16 months after the cause of action was first discovered. Under our holding in Nolph v. Scott, Ky., 725 S.W.2d 860 (1987), which cited with approval Schiavone v. Fortune, a/k/a Time, Inc., 477 U.S. 21 , 106 S.Ct. 2379 , 91 L.Ed.2d 18 (1986), it was said that “the linchpin is notice and notice within the limitation period, and the notice required is notice of the action or notice of the lawsuit.” The relation back provisions of CR 15.03(2) does not save the appellants’ claim upon joining a partner as a defendant 16 months after discovery of the cause of action.