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What Constitutes Excusable Neglect when a Plaintiff Names the Wrong Defendant?

Tuesday, April 10, 2012

From the desk of Kyle Riley:  Plaintiffs sometimes fail to name the correct person as the defendant when filing a lawsuit.  When a plaintiff does not discover this error until after the statute of limitations has expired, certain requirements must be met before a plaintiff will be allowed to amend the complaint and bring the action against the correct defendant.  One such requirement is that the plaintiff’s error in naming the wrong defendant must have been the result of excusable neglect.  This case provides an example of what constitutes excusable neglect.

Claims Pointer:  When a plaintiff erroneously names a person as the defendant in a lawsuit after reasonably attempting, but failing, to learn the identity of the correct defendant until after the statute of limitations had expired, the plaintiff may amend the complaint to name the correct defendant and the amendment will relate back to the original filing date for statute of limitations purposes.

Watson v. Ermand, in the Court of Appeals of the State of Washington (Case No: 41367-1-II, December 28, 2011).

Miles Ermand was driving his vehicle when it collided with a vehicle being driven by Plaintiff.  After the collision, Miles showed Plaintiff a Safeco insurance card which listed Michael Ermand as the insured.  According to Plaintiff, she then asked Miles whether his name was Michael Ermand.  Miles responded affirmatively.  After exchanging contact information, Plaintiff asked Miles to see his driver’s license and suggested they call the police.  Instead of responding to Plaintiff, Miles got in his vehicle and left the scene.  Miles denied that Plaintiff ever asked for his name or his driver’s license.  Plaintiff subsequently provided a recorded statement to Safeco in which she stated that the driver of the other vehicle was Michael.  All correspondence from Safeco to Plaintiff and/or her attorney listed Michael Ermand as “our insured.”   

On April 27, 2009, Plaintiff filed a personal injury lawsuit naming Michael Ermand as the defendant.  Michael Ermand was served two days later.  The statute of limitations expired on May 10, 2009.  On June 8, 2009, Michael Ermand filed an Answer alleging that Miles Ermand was at fault for the accident.  After conducting discovery, Plaintiff filed a motion to amend her complaint to add Miles Ermand as an additional defendant and assert a family car doctrine claim against Michael Ermand.  The trial court denied Plaintiff’s motion and the case was eventually dismissed.  Plaintiff appealed the trial court’s denial of her motion to amend. 

CR 15(c) governs relation back of amendments to pleadings for statute of limitations purposes and provides the following: 

“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” 

Based on this rule, the Court of Appeals held that Plaintiff’s motion to amend to add the family car doctrine claim against Michael Ermand should have been granted because this claim arose out of the same occurrence alleged in the original complaint.    

The Court of Appeals then addressed whether Plaintiff’s motion to amend to add Miles Ermand as a party should have also been granted.  There was no dispute that all of the requirements of CR 15(c) were met in this case.  However, the Court of Appeals noted that a plaintiff’s failure to timely name a necessary party cannot be remedied under CR 15(c) if the failure was caused by inexcusable neglect.  The Court then stated that plaintiffs are only required to conduct a reasonable investigation into ascertaining the identity of the correct defendant; they are not required to do everything imaginable.  After examining two prior cases addressing the same issue, the Court of Appeals drew a distinction between plaintiffs who learned the identity of the correct defendant before the statute of limitations expired but failed to act in time and plaintiffs who, despite reasonable efforts, did not come to realize the identity of the correct defendant until after the statute had expired.  Based on this analysis, the Court of Appeals held that Plaintiff’s neglect was excusable because, despite her reasonable efforts, she never received any information indicating that someone other than Michael Ermand was driving the car until after the statute of limitations expired.  Accordingly, the Court of Appeals reversed the trial court’s dismissal of the case and remanded with instructions to grant Plaintiff’s motion to amend.

Case updates are intended to inform our clients and others about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in this email without seeking professional counsel. 

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