A Carluzzo Rochkind & Smith note: Following is an excellent article by Virginia Lawyers Weekly. We did not handle this case, but it brings up important points your personal injury lawyers should be familiar with. For more than 30 years our personal injury lawyers in Manassas have helped clients with such matters in Prince William County, Fairfax County, Woodbridge, and throughout Northern Virginia. If you have any questions or would like to schedule an appointment, please contact our law firm at (703) 361-0776.
Statute of limitations bars personal injury claim
By Virginia Lawyers Weekly – 3/24/2024
Defendant’s plea in bar based on the statute of limitations is granted. A prior order in a non-suited case, which related back an amended complaint to the original filing date, is not binding on defendant.
This is so because the nonsuit denied defendant “the opportunity to be heard on the merits” of her then-pending plea in bar, which was also based on the statute of limitations.
Background
“On April 4, 2019, a complaint was filed by Plaintiff Isaias Tessema, alleging that ‘Katherine A. Illingworth,’ otherwise referred to as ‘Katherine A. Multhrop’ in the Complaint, recklessly and negligently struck Plaintiff with her car … on April 15, 2017.
“Illingworth, née Moulthrop, a woman residing in Colorado with no relation to the accident at issue, was served on January 2, 2020. The next day, Illingworth notified Plaintiff’s counsel she was not the correct party in the suit.
“On January 31, 2020, Plaintiff filed a Motion for Leave to Amend Complaint and Correct Misnomer, along with a corresponding Affidavit that outlined the investigatory steps Plaintiff’s counsel took to correctly identify the proper defendant.
“By letter dated June 15, 2017, defendant’s insurer, State Farm, denied liability while correctly naming Ms. Moulthrop as ‘Our insured: Catherine A. Moulthrop.’”
Plaintiff explained that a private investigator identified “the wrong person as the driver and argued that such a mistake qualified as a misnomer under § 8.01-6.
“Plaintiff’s supporting affidavit did not detail whether express notice had been given to the correct defendant of the filing of the original Complaint within the two-year statute of limitations period provided for personal injury claims, nor did this affidavit address the issue of prejudice as required by the statute.
“On February 5, 2020, another judge of this Court granted Plaintiff’s Motion to Amend and ordered that ‘Plaintiff’s Amended Complaint shall be deemed filed on Feb. 5th, 2020, and relate back to the original April 10, 2019, filing date.’
“On or about April 15, 2020, the Amended Complaint was served on Catherine Ann Moulthrop, the correct defendant.
“On August 7, 2020, Defendant Moulthrop filed a Plea in Bar arguing that Plaintiff’s Motion to Amend, and incidentally this Court’s prior order, incorrectly concluded the name error was a misnomer, further averring that because it was not a misnomer, it did not relate back to the original pleading, and the statute of limitations thus barred Plaintiff’s claim.
“A hearing was set for June 24, 2021, but Plaintiff nonsuited his case[.] … On December 10, 2021, a new case was filed, the instant action, naming Catherine Ann Moulthrop as Defendant.
“She was served on October 29, 2022, and subsequently filed her Plea in Bar, which is the subject of this opinion.
“The parties appeared before this Court on September 28, 2023, upon Defendant Moulthrop’s and Erie Insurance’s joint Plea in Bar to Plaintiff’s refiled action, again asserting Moulthrop’s argument that the instant case is barred by the statute of limitations, in that because she was not afforded the opportunity to litigate her prior Plea in Bar in the original case, she retained the right to do so in the instant case.
“Specifically, Defendant asserts:
“(1) this Court’s prior order was not binding on the present Court because Plaintiff’s mistake in naming the proper defendant was a misjoinder rather than a misnomer qualifying for relation back under § 8.01-6, and
“(2) even if this Court were to find the mistake to be a misnomer, Plaintiff did not meet his burden of proving notice and lack of prejudice to Defendant under § 8.01-6(ii)-(iii) in order to secure the right to amend his complaint, thus preventing any relation back to the date of filing the original Complaint, either through amendment or by nonsuit.
“Among Plaintiff’s responses was the assertion that his nonsuit cured the misnomer defect. He also complained about State Farm’s withholding its case file, which might have shed light on the timing of notice of the institution of the action possessed by Defendant.”
Rulings
“The Court has considered the conundrum of Plaintiff choosing to exercise cumulative curative options to correct a misnomer by both filing a motion to amend under § 8.01-6 and taking a nonsuit, without first having effected notice on Defendant of the institution of the action within the period afforded by the statute of limitations.
“The issues raised before the Court were whether such a misnomer nonsuit precludes a subsequent court from hearing objections to a misnomer amendment granted in the prior case, whether a complaint containing a misnomer can be cured via nonsuit without strict adherence to § 8.01-6, and how the statutory prongs of § 8.01-6 must be met in the circumstances where the driver of a vehicle has been misnamed in a filed tort action.
“First, this Court’s prior Order granting an amendment to correct a misnomer where it is unclear from the record if the statutory requirements of § 8.01-6 were met, particularly notice, is voidable error and does not preclude this Court from hearing the matter.
“Where Defendant was denied an opportunity to be heard on the merits concerning the amendment due to a nonsuit, this Court is authorized to reconsider the issue as a matter of due process.
“Second, this Court finds Plaintiff’s nonsuit to correct a misnomer mistake is not a shelter from the protective statutory requirements of the misnomer statute, § 8.01-6, and Plaintiff must meet the requirements of notice and lack of prejudice to Defendant under the statute to cure a misnomer, whether by nonsuit or amendment.
“Third, a plaintiff suing a driver for negligence can meet the burden of proving misnomer notice under § 8.01-6(ii) by application of the doctrine of identity of interest.
“Specifically, a plaintiff may meet his burden by imparting notice of the initiation of an action to the driver’s insurer such that the insurer possesses sufficient knowledge of the institution of the action to be imputed onto its insured.
“In this case, the record available to the Court does not show Plaintiff ever provided such timely notice of the institution of suit either to Defendant or to her insurer, such as by mailing a copy of the Complaint or otherwise demonstrating how Defendant or her insurer were aware of the commencement of the action within the statute of limitations period allotted for the filing of the original Complaint.
“This lack of notice not only is deficient under § 8.01-6(ii) but prejudiced Defendant in contravention of § 8.01-6(iii), and therefore Plaintiff failed to meet his attendant burden to permit correction of the misnomer under § 8.01-6.
“Consequently, Plaintiff’s amendment correcting the name of Defendant does not relate back to the filing of the original Complaint, and therefore, Plaintiff’s claim is barred by the affirmative defense of statute of limitations.
“Defendant’s Plea in Bar must thus be granted, requiring this cause to be dismissed with prejudice.
“However, because of the novelty of the holding expressed herein, the Court shall suspend dismissal of the action for ninety days, during which time Plaintiff may, if so inclined, subpoena relevant records of State Farm, Defendant’s insurer, and of Erie Insurance Exchange, Plaintiff’s uninsured motorist carrier, and conduct discovery, to determine if State Farm obtained notice of the institution of Plaintiff’s suit within the period afforded by the statute of limitations.
“To the extent State Farm possessed such timely knowledge, Plaintiff may then seek reconsideration of this Court’s ruling; otherwise, the suspending order shall expire, and the Court’s ruling shall become final.”
Tessema v. Moulthrop, Case No. CL-2021-16927, Dec. 7, 2023. Fairfax Circuit Court (Bernhard). Kenneth LaDuca, Kenneth Koppelman, Counsel for Plaintiff; Alicia Lehnes Summers, Counsel for Defendant Catherine Ann Moulthrop; Robert E. Worst; Counsel for Plaintiff’s UIM Carrier Erie Insurance Exchange. VLW 024-8-017, 32 pp.
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