Bryant v. Turney et al

Filing 223

MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell on 10/9/2013. 213 and 217 motions to dismiss and/or abstain DENIED; case STAYED pending action by the new personal representative in the state court case. cc:counsel (TBS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:11-CV-00128
Plaintiff

RICHARD WARD BRYANT,
individually on behalf of the
estate of KIRA BRYANT
v.
JAMISON K. TURNEY, DEDRA K
TURNEY, and PADUCAH NISSAN, LLC,
d/b/a NISSAN OF PADUCAH

Defendants

MEMORANDUM OPINION AND ORDER
Defendant Dedra K. Turney moves to dismiss Plaintiff’s claims asserted on
behalf of the estate of Kira Kelley Bryant and for the Court to abstain from exercising
jurisdiction over the suit. (Docket No. 213.) Paducah Nissan joins Dedra Turney in
moving to dismiss Plaintiff’s claims. (Docket No. 217.) Plaintiff Richard Bryant has
responded. (Docket No. 218.) Defendant Dedra Turney has replied. (Docket No. 220.)
This matter is ripe for adjudication. For the following reasons, Dedra Turney and
Paducah Nissan’s motions to dismiss and/or to abstain are DENIED. This case is
ordered STAYED pending action by the new personal representative in the state court
case.
As discussed with the parties in the conference call on September 27th, 2013,
this case will be stayed pending action by the new personal representative in the state
court case. The personal representative has the exclusive right to maintain a wrongful
death action. Everley v. Wright, 872 S.W.2d 95 (Ky.1993). However, Kentucky law

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permits a beneficiary to bring an action on behalf of the estate under two exceptional
circumstances: (1) when the personal representative has refused to bring the action; or
(2) where there is fraud and collusion on the part of the personal representative and the
person sought to be made liable for the death. Smith v. McCurdy, 269 S.W.3d 876, 879
(Ky. App. 2008); In re Air Crash at Lexington, Kentucky, 2007 WL 580858 (E.D. Ky.
Feb. 20, 2007).
Previously, the Court found such exceptional circumstances existed, and the
Court permitted Bryant to maintain an action on behalf of the estate. Specifically, since
Dedra was the personal representative and the state court refused to remove her, there
was a conflict of interest/collusion as to the personal representative and the person
sought to be made liable for the death (Dedra). However, now Dedra has been removed
and there has been an appointment of a new, independent personal representative.
Therefore, the same concerns about a conflict of interest/collusion do not exist.
As a result, the Court is now in a precarious situation. If the new personal
representative successfully brings an action against Dedra, it is clear the Court no longer
has jurisdiction over Bryant’s claims brought on behalf of the estate. This is because
the personal representative has exclusive jurisdiction over such claims. The Court also
believes it may be without jurisdiction if the personal representative considers bringing
a claim against Dedra, but chooses not to because it is in the best interest of the estate.1
That decision is exclusively the new, independent personal representative’s.
Admittedly, a more problematic situation would arise if the personal representative

As the reply brief notes, (Docket No. 220, Page 3), the new personal representative would be in a position
to honestly evaluate the merits of pursuing a claim against Dedra viewed from the lens of a maximum
recovery on behalf of the whole estate, not a single beneficiary.
1

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attempted to bring a claim against Dedra, but was barred from doing so by the state
court. Currently, the Court declines to decide whether it would continue to have
jurisdiction and what would be the proper course of action in that situation because it
has not occurred. If that situation presents itself, then the Court will decide the issue.
Given that several actions by the new personal representative could result in the
Court being without jurisdiction on the claims Plaintiff Bryant brought on behalf of the
estate of Kira Bryant, the Court will STAY this case pending actions/decisions by the
new personal representative. As for the remaining loss of consortium claim, which is a
personal/individual claim of Richard Bryant, the Court has an independent basis for
jurisdiction in diversity. However, since the Court could potentially end up having to
resolve the claims Bryant brought on behalf of the estate, the Court believes it is
prudent to also stay the loss of consortium claim since they are part of the same case.
CONCLUSION
For these reasons, and consistent with the Court’s conclusions above,
IT IS HEREBY ORDERED as follows: Dedra Turney and Paducah Nissan’s motions to
dismiss and/or to abstain are DENIED. This case is ordered STAYED pending action
by the new personal representative in the state court case.

IT IS SO ORDERED.

Date:

cc:

October 9, 2013

Counsel

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