An inconvenient truth may be a problem, but an incovenient forum runs the risk of a lost cause. Here is a post from the Kentucky Tort and Insurance Law Blog by Edward Brutscher digesting and analyzing a recent Kentucky Supreme Court decision. Click on the heading for his entire post and commentary. Fortunately for the injured plaintiff, the Kentucky Supreme Court applied the Kentucky savings statute to save a cause of action dismissed for forum non conveniens.
Forum Non Conveniens Again?
The Supreme Court has published Dollar General Stores, Ltd. v. Smith, another case dealing with the little known and seldom used doctrine of forum non conveniens. The court had previously held that the savings provision of KRS 413.270 applied to save cases filed in the improper venue, as well as, those filed in the wrong jurisdiction. The Court had not previously decided whether the savings statute applied when the case was dismissed on the grounds of forum non conveniens from a proper venue. The Court believed this issue was before them. . . .
Chief Justice Lambert writing for the majority applied the savings statute (KRS 413.270) to save the claim and toll it so that it was not barred as untimely filed in the proper jurisdiction.
With the enactment of KRS 452.105, the General Assembly made it clear that venue should be transferred in a proper case, and that the action should not be dismissed. We now hold that the same rule applies where the trial court determines that another forum would be a more convenient place for the litigation.
Newly-appointed Justice Abramson perplexingly straddled the fence on this one by concurring in the result (not wishing to penalize the claimant for her counsel's "overly broad reading of the saving statute") but siding with the analysis of the dissenting opinion by Justice Minton who read the statute more narrowly and making distinctions between venue and jurisdiction being outcome determinative in this situation.
I concur in the result reached by the majority only because I agree that we ought not to penalize the plaintiff, Mabel Smith, for her counsel's reliance on the overly broad reading of the saving statute, KRS 413.270, which the Sixth Circuit Court of Appeals propounded in Shircliff v. Elliott. 384 F.2d 947 (6' Cir. 1967), and which this State's highest Court suggested in D. & J. Leasing, Inc. v. Hercules Galion Products, Inc., 429 S .W .2d 854 (Ky. 1968). I agree with Justice Minton, however, that that broad reading does not comport with the statutory language, and so henceforth would limit application of KRS 413.270 and KRS 452.105 to the circumstances the General Assembly has specified . In short, the dissent reflects what I believe is the correct interpretation of the two statutes.
Although Justices Minton and Abramson would make up at least two who would not prospectively apply the holding in this case, they are clearly in the minority as Justices Cunningham, Minton, Scott, and Schroder joined the Chief Justice in both the result and the analysis.