Background
On March 25, 2018, Joshua Adam Fuson was under the influence of methamphetamine when his brother called 911. EMT Scott Hendrickson and a Mercy Regional EMS crew responded alongside Paducah police. After Fuson fled, was apprehended, and received additional medical care, he was taken to the McCracken County Jail. He suffered cardiac arrest while in custody and was pronounced dead on March 27, 2018, leaving behind two minor daughters.
Co-administrators of Fuson’s estate and the minor children filed suit in March 2019, but Mercy Regional EMS and Hendrickson were not named until a Second Amended Complaint filed in September 2022 — more than four years after Fuson’s death. The defendants moved for summary judgment, arguing all claims were time-barred. The McCracken Circuit Court agreed, dismissing the estate’s wrongful death claims and the minor children’s loss of parental consortium claim. As to the children’s claim, the trial court relied on an unpublished Court of Appeals decision, Tallman v. City of Elizabethtown, reasoning that because the children’s claims had been prosecuted through a next friend, the minority tolling provision of KRS 413.170(1) did not apply.
The Court of Appeals affirmed dismissal of the estate’s claims but reversed as to the minor children, holding that KRS 413.170(1)’s plain language tolled the limitations period while the children remained minors and that a next friend cannot waive that statutory protection. Mercy Regional EMS and Hendrickson sought review in the Kentucky Supreme Court solely on the statute of limitations issue as to the children’s consortium claim.
The Court’s Holding
The Kentucky Supreme Court unanimously affirmed the Court of Appeals (with one dissent) and held that the minor children’s loss of parental consortium claim was tolled under KRS 413.170(1) because the children were still minors when the Second Amended Complaint was filed. The Court applied the plain-language rule of statutory construction: the statute says the limitations period is suspended until “the removal of the disability,” and a minor’s disability of infancy is not removed until the minor reaches the age of majority — not when a next friend files suit on the minor’s behalf.
The Court further held that a next friend — a procedural device allowing a minor’s claim to be brought into court — has only nominal authority to file suit and cannot waive or forfeit a minor’s substantive statutory right to tolling. Because the minor is the real party in interest and a next friend lacks authority even to settle the minor’s claims, any failure by a next friend to file within the ordinary limitations period cannot operate as a waiver. The Court expressly declined to follow Tallman, noting it is an unpublished, non-binding Court of Appeals opinion and is materially distinguishable on its procedural facts.
The Court also noted that the defendants had not appealed the Court of Appeals’ separate holding that a loss of parental consortium claim is an independent cause of action rather than derivative of the wrongful death claim. Accordingly, that ruling became the law of the case, and on remand the minor children may establish the elements of the underlying wrongful death claim in support of their consortium claims independently of the estate’s time-barred action.
Key Takeaways
- Under KRS 413.170(1), the statute of limitations on a minor’s claim is tolled until the minor reaches the age of majority — the tolling period is not cut short merely because a next friend has filed suit on the minor’s behalf.
- A next friend is only a nominal party with no authority to settle or otherwise extinguish a minor’s substantive rights; a next friend’s procedural inaction cannot waive the minor’s statutory tolling protection.
- The unpublished Court of Appeals decision in Tallman v. City of Elizabethtown — which had suggested that a next friend’s prosecution ends minority tolling — is not binding and, per the Supreme Court, should not be followed.
- Because Mercy Regional EMS and Hendrickson did not challenge the Court of Appeals’ ruling that a loss of parental consortium claim is independent (not derivative) of a wrongful death claim, that issue is now law of the case and will govern further proceedings on remand.
Why It Matters
This decision settles a previously unsettled question in Kentucky: the filing of a lawsuit by a next friend on a minor’s behalf does not trigger the running of the statute of limitations or otherwise extinguish the minor’s tolling rights under KRS 413.170(1). Defense counsel who have relied on Tallman to argue that next-friend litigation eliminates minority tolling can no longer do so. Plaintiffs’ attorneys should note, conversely, that minors retain their full tolling protection regardless of whether a next friend has already initiated related litigation.
The decision also leaves open — but does not resolve — the broader question of whether a minor’s loss of parental consortium claim is truly independent of an underlying wrongful death or negligence action. Because that issue was not appealed, the Court’s affirmance on that point is narrow, and the question may return in future cases where both sides actually contest it.