Thompson v. Killary

683 S.W.3d 641

Linda THOMPSON; Rick Jackman; and City of Louisville/Jefferson County Metro Government, Appellants

v.Samantha KILLARY, Appellee

2022-SC-0308-DG

Supreme Court of Kentucky.

February 15, 2024

ON REVIEW FROM COURT OF APPEALS, NO. 2020-CA-0194, JEFFERSON CIRCUIT COURT NO. 18-CI-002551

COUNSEL FOR APPELLANT, LINDA THOMPSON: Carol Schureck Petitt, Vaughn Petitt Legal Group, PLLC.

COUNSEL FOR APPELLANT, RICK JACKMAN: William H. Brammell, Jr., Eminence, Kayla M. Campbell, J. Kent Wicker, Louisville, Wicker/Brammell PLLC.

COUNSEL FOR APPELLANT, CITY OF LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT: Kristie Babbitt Walker, Kathryn Delaine Meador, Jefferson County Attorney’s Office.

COUNSEL FOR APPELLEE: Lindsy Lopez, Tad Thomas, Louisville, Thomas Law Offices, PLLC.

COUNSEL FOR AMICUS, AMERICAN ASSOCIATION FOR JUSTICE: Joshua D. Hicks, Hicks & Funfsinn, PLLC, Lexington.

COUNSEL FOR AMICUS, CHILD USA: John Abaray, Louisville, Abaray Craddock & Smith, PLLC.

COUNSEL FOR AMICUS, EXECUTIVE COMMITTEE OF THE SOUTHERN BAPTIST: John O. Shelter, Louisville, Kirby Black, Steven T. Clark, Louisville, Stoll Keenon Ogden.

COUNSEL FOR AMICUS, KENTUCKY JUSTICE ASSOCIATION: A. Nicholas Naiser, Louisville, Naiser Law Office.

COUNSEL FOR AMICUS, LIFEWAY CHRISTIAN RESOURCES: Stewart C. Burch, Logan Burch & Fox, PLC.

COUNSEL FOR AMICUS, SOUTHERN BAPTIST CONVENTION: Bryan H. Beauman, Sturgill, Turner, Barker & Moloney, PLLC, Lexington.

COUNSEL FOR AMICUS, SOUTHERN BAPTIST THEOLOGICAL SEMINARY: Bryan E. Leet, Sharon L. Gold, Thomas E. Travis, Lexington, Wyatt Tarrant & Combs.

OPINION OF THE COURT BY CHIEF JUSTICE VANMETER

The law of the Commonwealth states, "[n]o statute shall be construed to be retroactive, unless expressly so declared." KRS¹ 446.080(3). Nevertheless, we permit retroactive application of statutes without explicit declaration when we are "absolutely certain the legislature intended such a result" or when the substance of the statute is remedial in nature and no new rights or duties are created. Commonwealth Dep’t. of Agric. v. Vinson, 30 S.W.3d 162, 168 (Ky. 2000). Here, we are presented with a question regarding the retroactivity of two amendments to KRS 413.249, which establishes the statute of limitations for civil claims of childhood sexual assault and abuse. We hold that while the statute is remedial in nature and should be applied retroactively, Appellants hold a vested right in asserting a statute of limitations defense that is not overcome by the addition of a new triggering event and KRS 413.249 does not provide for the revival of time-barred claims.

I. BACKGROUND

This matter arises from the more than a decade of, sexual abuse Samantha Killary allegedly endured at the hands of her adoptive father, Sean Jackman. Sean adopted Killary around 1993 when she was two years old. In 1997, Sean engaged in a pattern of sexual abuse that would last until 2009, the same year Killary turned 18. In 2018, Sean was convicted of multiple criminal offenses related to the abuse. Throughput the period of abuse, Sean was a police officer with the Louisville Metro, Police Department ("LMPD")², as was his father, Rick Jackman,³ and Sean’s girlfriend from 2001-2003, Linda Thompson.

In 2017, one year prior to the institution of this action, our General Assembly took the laudable action of reforming the statute of limitations for civil claims of childhood sexual abuse, extending the time limit from five years to ten years and adding a new triggering event: the conviction of the abuser. KRS 413.249(2)(d) (2017 amend.).

On May 2, 2018, Killary brought this action against the various persons and entities she alleges played a role in her abuse. Killary alleges Thompson may have participated in some of the abuse and that Rick, Thompson, and the Louisville Metro Government ("Metro") knew of the abuse and failed to take action to prevent it. Killary’s complaint, thus, asserted both first-party claims against Sean and Thompson and third-party claims against Thompson, Rick and Metro. Finally, Killary asserts Metro is vicariously liable for the actions of its employees and brings additional claims for negligent hiring and intentional infliction of emotional distress. The claims other than those for childhood sexual abuse were dismissed and are not on appeal here.

Metro moved to dismiss the remaining charge on sovereign immunity grounds. Sean, Rick, and Thompson also sought dismissal, arguing that the action was time-barred by the 2007 version of KRS 413.249 which was in effect when that limitations period on Killary’s claims began to run. The trial court granted both motions to dismiss, holding the 2017 version of the statute did not apply. Killary appealed the order.

During the pendency of the appeal, the legislature again amended KRS 413.249 in 2021. The General Assembly added language permitting suits against third parties, including entities such as Metro; expressly made the 2017 version of the statute retroactive; and seemingly provided for revival of all previously time-barred claims for childhood sexual abuse, among other things.

In a divided opinion, the Court of Appeals reversed the decision of the trial court. The majority held that the 2017 version of the statute applied and created a new triggering event as to Sean that caused the limitations period for the claims against him to run upon his conviction for the abuse. As such, Killary’s claims against him were well within the statute of limitations. As to Metro, Rick and Thompson, the majority reasoned that they had a vested right in the old statute of limitations, KRS 413.140(1)(a) (2007 amend.), but not the new limitation period created by the 2021 amendments and thus remanded the matter to the trial court to determine whether those parties owed a duty to Killary under the present KRS 413.249(5). The Court of Appeals further instructed the trial court to determine whether the 2021 amendments waived sovereign immunity regarding Metro. A dissenting opinion argued that, except for Sean„ the remaining parties’ defenses, whether it be the statute of limitations or sovereign immunity, had vested by the time either the 2017 or 2021 amendments came into effect. Accordingly, the, dissent believed the legislature lacked the power to divest Thompson, Rick, and Metro of their defenses to the claims against them and those parties were rightfully dismissed.

Thompson, Rick, and Metro, the Appellants herein, petitioned for discretionary review pursuant to CR⁴ 76.20,⁵ which this Court granted.

II. STANDARD OF REVIEW

[1] The case before us presents only questions of law. Accordingly, we review KRS 413.249 and the applicable statute of limitations de novo. Overstreet v. Kindred Nursing Ctrs. Ltd. P’ship, 479 S.W.3d 69, 73 (Ky. 2015) (citing Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004)).

III. ANALYSIS

[2] At the outset, we believe that analysis of the 2021 amendments to KRS 413.249 is appropriate and necessary in this instance. Although typically, "[a] question not raised nor adjudicated in the circuit court will not be addressed by this court," Benefit Ass’n of Ry. Emps. v. Secrest, 239 Ky. 400, 39 S.W.2d 682, 687 (1931), "[w]hen the facts reveal a fundamental basis for decision not presented by the parties, it is our duty to address the issue to avoid a misleading application of the law." Mitchell v. Hadl, 816 S.W.2d 183, 185 (Ky. 1991). Here, the parties did not argue the 2021 amendment before the trial court for the simple reason that the amendment had yet to come into existence. We believe that full adjudication of the issues on appeal requires us to address the now in-effect statutory provision, particularly because the issues presented here are purely legal and the various statutory amendments at play are so intertwined as to make ignoring the current version all but impossible.

The issues before us revolve around the various versions of KRS 413.249 that have been in force during the pendency of this action. Generally, KRS 413.249 sets forth certain procedural requirements for bringing a civil action for childhood sexual abuse or assault. Primarily at issue here, the statute sets forth the applicable statute of limitations and provides certain triggering events that begin the running of the limitations period. Since the time the statute of limitations began to run on Killary’s case in 2009 pursuant to the 2007 version of KRS 413.249, the statute has been amended three times: 2013, 2017, and 2021. The latter two amendments form the heart of this dispute.

At the time Killary’s cause of action initially accrued, the statute then in force, the 2007 version, provided for a 5-year limitations period beginning upon the latest of three occurrences:

(a) Within five (5) years of the commission of the act or the last of a series of acts by the same perpetrator;

(b) Within five (5) years of the date the victim knew, or should have known, of the act; or

(c) Within five (5) years after the victim attains the age of eighteen (18) years.

KRS 413.249(2) (2007 amend.). In Killary’s case, the applicable period began on her 18th birthday sometime in 2009. Thus, at least as to the first-party claims against Sean and Thompson, Killary was required to bring her action during or before 2014.⁶

In 2017,⁷ the legislature amended the statute to expand the limitations period to ten years and to add a new triggering event: "the conviction of a civil defendant for an offense included in the definition of childhood sexual abuse or childhood sexual assault." KRS 413.249(2)(d), (2017 amend.). The 2017 amendment did not contain retroactivity language.

Finally, in 2021, the General Assembly passed the current version of the statute. This time, the legislature made significant changes, including a provision explicitly applying the 10-year limitations period to actions against third parties. The current version also includes retroactivity language, albeit curiously phrased, as well as a codified provision for...