dissenting.
I respectfully dissent.
The majority opinion, by applying KRS 413.180(2) to the case at bar, overextends previously established authority that grafted wrongful death actions within the purview of time limitations found in KRS 413.-180(1).
Confusion over the applicability of time limitations set forth in KRS 413.180(1) and (2), originates in the blurred distinction between the wrongful death act, now found in KRS 411.130, and the survival acts, now found in KRS 413.180(1), (2). At common law, even though a tort action was vested in the tort victim, it did not survive either his death or the death of the tortfeasor. Prosser and Keeton, Law of Torts, § 125A, (5th ed. 1984). Thus, “survival statutes” were enacted, transferring the cause of action held by the decedent immediately before, or at death, to his personal representative. Such is the derivation of KRS 413.180(1) and (2).
At common law, when the tortfeasor killed, rather than seriously injured his victim, he was immune from civil action. Wrongful death statutes were therefore adopted to reverse this result. In Kentucky, a precursor to KRS 411.130, was enacted, to establish a new, and independent, cause of action, in the tort victim’s dependents, or heirs, to recompense them for loss due to the tort victim’s death. Prosser and Keeton, supra, § 127.
The Kentucky Legislature in 1854, adopted a wrongful death statute, in response to passage of such a law in 1846, by the English Parliament. The Kentucky law provided:
That if the life of any person is lost or destroyed by the willful neglect of another person or persons, company or companies, corporation or corporations, their agents or servants, then the personal representative of the deceased shall have the right to sue such person or persons, company or companies, corporation or corporations, and recover punitive damages for the loss or destruction of the life aforesaid. 2 Stanton’s Revised Statutes, § III, p. 510.
A specific statute of limitations was provided in the following section of the wrongful death act, which reads as follows:
The actions under this act shall be commenced within one year from the time of such death. 2 Stanton’s Revised Statutes, § IV, p. 512.
Thus the precursor to KRS 411.130 specifically provided that an action for wrongful death accrued at the time of death regardless of the date of injury, and required that the action be brought within one year. Chiles v. Drake, 59 Ky. 146 (1859). This Court has consistently ruled that a wrongful death action accrues at the time of the tort victim’s death when interpreting legislative revisions to the original wrongful death act, the revisions having omitted the explicit time limitation clause found in section IV. Carden v. Louisville & N.R.R. Co., 101 Ky. 113, 39 S.W. 1027 (1897); Louisville & N.R.R. Co. v. Simrall’s Adm’r, 127 Ky. 55, 104 S.W. 1011 (1907); McCollum v. Sisters of Charity of Nazareth Health Corp., Ky., 799 S.W.2d 15 (1990), Farmer’s Bank & Trust Co. v. Rice, Ky., 674 S.W.2d 510 (1984), S. Speiser, Recovery for Wrongful Death, Vol. 2, § 11:11 (2d ed. 1975).
*656Language in KRS 413.180(2) appears to fall outside the parameters of a wrongful death action:
If a person dies before the time at which the right to bring any action mentioned in KRS 413.090 to 413.160 would have accrued to him if he had continued alive, and there is an interval of more than one year between his death and the qualification of his personal representative, that representative, for purposes of this chapter, shall be deemed to have qualified on the last day of the one-year period. (Emphasis added.)
The wrongful death action under KRS 411.130 does not “accrue” until death of the tort victim. Thus by the highlighted language found in KRS 413.180(2), the statute is inapplicable to civil actions brought under KRS 411.130, for an action based in wrongful death is never vested in the tort victim himself. This Court, in Wheeler v. Hartford Accident & Indemnity Company, Ky., 560 S.W.2d 816, 819 (1978) observed this fact, when we stated:
KRS 411.130 mandates that all actions for wrongful death be maintained by the personal representative of the deceased ... Courts have consistently held that the right to action is in the personal representative exclusively. (Emphasis added.)
The majority opinion applies both KRS 413.180(1) and (2) to the case at bar, arguing that for over 100 years this Commonwealth has recognized time limitations found in KRS 413.180(1) to be applicable to wrongful death claims. See, Carden v. Louisville & N.R.R. Co., supra. Since both sections in KRS 413.180 incorporate actions “mentioned in KRS 413.090 to 413.-160,” the majority thus reasons their applicability to the present case, because through case interpretation, time limitations found in KRS 413.140(l)(a), have been held to apply to wrongful death claims. Carden v. Louisville & N.R.R. Co., supra.
Application of time limitations for wrongful death in prior case law is muddied, because a distinction exists between a cause of action which a tort victim has prior to death, pursuant to KRS 413.-140(l)(a), and a cause of action for wrongful death, pursuant to KRS 411.130, see Faulkner’s Adm’r v. Louisville & N.R.R. Co., 184 Ky. 533, 212 S.W. 130 (1919); Louisville & N.R.R. Co. v. Brantley’s Adm’r, 106 Ky. 849, 51 S.W. 585 (1899); Totten v. Loventhal, Ky., 373 S.W.2d 421 (1963); Massie v. Persson, Ky.App., 729 S.W.2d 448 (1987). Confusion by state courts and legislatures as to this distinction is not uncommon. Comment, An Economic Analysis of Tort Damages for Wrongful Death, 60 N.Y.U.L.Rev. 1113, 1117-1118 (1985).
A leading treatise on wrongful death, when distinguishing between a cause of action a person has prior to death, and a cause of action for the tort victim’s wrongful death, notes:
a statute which provides that the limitation period will cease to run 12 months after the death of one in whose favor there is a cause of action unless his personal representative qualifies will toll the statute of limitations as to the first-described action, but not as to the second. S. Speiser, supra.
In seeming contradiction to this observation, the one year time bar found in KRS 413.180(1), is applied to wrongful death acts, and not just to actions based upon personal injuries to the tort victim. KRS 413.180(1) provides that:
If a person entitled to bring any action mentioned in KRS 413.090 to 413.160 dies before the expiration of the time limited for its commencement and the cause of action survives, the action may be brought by his personal representative after the expiration of that time, if commenced within one year after the qualification of the representative.
While KRS 413.140(l)(a) covers actions imputed to the deceased before his death, e.g. pain and suffering, this Court has extended the reach of its one year statute of limitations to cover wrongful death claims by our decision in Carden v. Louisville & N.R.R. Co., supra. KRS 413.140(l)(a) covers the following:
an action for an injury to the person of the plaintiff, or of her husband, his wife, child, ward, apprentice or servant.
*657In Carden v. Louisville & N.R.R. Co., supra, this Court observed that a revision of the General Statutes transferred the act of 1854 to Chapter 57, but section 4, of the original act, which prescribed the time within which actions in wrongful death should be brought, was omitted. Noting that the revised statutes transferred the limitation clause in section 4 covering wrongful death to the “chapter on limitations,” which included other sections, including the precursor to KRS 413.140(l)(a), this Court said:
It seems evident that it was the intention of the legislature to limit the time when actions could be instituted under this statute to one year from the day when the cause of action accrued, which undoubtedly was the date of death ... the obvious purpose [of the revised statute which encompasses time limitations that include within its provisions the precursor to KRS 413.140(l)(a) ] was to provide for a reasonable limitation of actions which did not accrue to a man in his lifetime, but which might accrue for the benefit of his estate after his death. Carden v. Louisville & N.R.R. Co., supra. (Emphasis added.)
.While case interpretation has included time limitations found in KRS 413.180(1) to wrongful death claims, see Drake v. B.F. Goodrich Co., 782 F.2d 638 (6th Cir.1986); Southeastern Ky. Baptist Hospital v. Gaylor, Ky., 756 S.W.2d 467 (1988), when technically such time bars are solely applicable to personal injury actions covered under KRS 413.140(l)(a), extension of KRS 413.180(2) to the case at bar counters explicit statutory language and precedent. A wrongful death action “accrues” at the time of the tort victim’s death. Thus the case at bar is outside the statutory language previously highlighted in KRS 413.-180(2).
The majority opinion emphasizes that applying KRS 413.180(2) to the case at bar is supported by the fact that the 1988 General Assembly included KRS 413.140(l)(a) in both time limitations found within KRS 413.180(1) and (2). As previously mentioned, this Court in Carden v. Louisville & N.R.R. Co., supra, held that the time limitations clause, which covered personal injury actions, as well as other actions, was applicable to wrongful death claims, because the legislative revision of the wrongful death act omitted the one year limitation, previously found in section IV. The majority opinion thus erroneously reasons that wrongful death claims under KRS 411.130, are grafted under KRS 413.-140(l)(a), and thus fall within the purview of KRS 413.180(1) and (2).
Mrs. Conner died on August 7, 1985. Because Mr. Conner was not appointed as personal representative of his wife’s estate until September 23, 1986, more than thirteen months after the wrongful death claim accrued, and because KRS 413.180(2) is inapplicable to the wrongful death cause of action, maintenance of the suit is barred under KRS 413.140(l)(a) and KRS 413.-180(1). Thus I would affirm the opinion of the Court of Appeals that upheld granting a motion for summary judgment on grounds that the wrongful death action was time-barred.
SPAIN and WINTERSHEIMER, JJ., join this dissent.