Karlmann v. Kegney

• Decision Date: 11 September 2012
• Docket Number: 42136-4-II
• Court: Washington Court of Appeals
• Parties: SUSAN KARLMANN, a single woman, Appellant, v. DAMIANN D. KEGNEY, a single man, Respondents, FERNANDO MAFFEI, a single man, Defendant.

SUSAN KARLMANN, a single woman, Appellant, v. DAMIANN D. KEGNEY, a single man, Respondents, FERNANDO MAFFEI, a single man, Defendant.

No. 42136-4-II

Court of Appeals of Washington, Division 2

September 11, 2012

UNPUBLISHED OPINION

Johanson, A.C.J.

Susan Karlmann^[1] appeals an order denying her motion to amend her personal injury complaint. She argues that (1) the trial court lacked discretion^[2] to deny her motion to amend because Damiann Kegney intentionally obfuscated David Kegney's identity, (2) Kegney violated CR 12(i) by not naming David in her answer, and (3) RCW 4.16.170 tolls the statute of limitations when one or more defendant is served within 90 days of filing the complaint. We hold that the trial court did not abuse its discretion and affirm the trial court's order denying Karlmann's motion to amend because she inexcusably neglected to name David in her complaint even though she had actual notice that he was the driver of the vehicle involved in the accident.

FACTS

In May 2007, Susan Karlmann was a motorcycle passenger involved in an accident when the motorcycle driver passed a line of automobiles on a two-lane highway. When the front vehicle made a left turn, it struck the motorcycle, throwing Karlmann to the ground and injuring her. Both parties agree that Damiann Kegney (Kegney) owned the vehicle involved in the accident and that at the time of the accident her son, David Kegney, ^[3] was the vehicle driver. The police filed a report immediately following the accident, naming all parties involved in the collision, including the drivers and the vehicle owners.^[4]

In October 2007, David testified at the motorcycle driver's infraction hearing. Karlmann's counsel questioned David at the infraction hearing.^[5] In her deposition, Karlmann stated that she attended the infraction hearing, that she saw David there, and that she was aware that he was the vehicle driver.

Two years later, in October 2009, Karlmann filed a personal injury complaint naming Kegney, the owner of the automobile as the defendant, but she did not name David. In her answer Kegney denied both the first and fourth paragraphs of the complaint. These paragraphs alleged, "That defendant Damiann D. Kegney, at all times material hereto, is a single man, " and "Damiann Kegney[ ] made a left turn in the motorcycle's path." Clerk's Papers (CP) at 3-4.

On April 27, 2010, Kegney and her counsel notified Karlmann that neither she nor her counsel were available for the following day's scheduled deposition. Kegney did not answer Karlmann's interrogatories until June 3, 2010, eight days after the statute of limitations expired. Kegney's deposition occurred on August 13, 2010. The record does not indicate whether Karlmann moved to compel discovery.

At the end of August 2010, Karlmann moved to amend her complaint and to substitute David as a defendant. On September 3, 2010 Karlmann's counsel filed a declaration stating that he mistakenly thought Kegney was the same person as David. The trial court denied Karlmann's motion to amend the complaint. Karlmann appeals.

ANALYSIS

Karlmann argues that (1) the trial court is "without discretion" to deny a motion to amend under CR 15(c) and that CR 15(c) should be liberally construed in favor of amending the complaint; (2) Kegney violated CR 12(i) by not naming David in her answer; and (3) RCW 4.16.170 tolls the statute of limitations when one or more defendants served within 90 days of filing the complaint. Additionally Karlmann argues that Kegney delayed and obfuscated the discovery process, preventing her from timely and correctly naming David in her complaint. Kegney responds that (1) inexcusable neglect bars an amended pleading; (2) Kegney did not violate CR 12(i) because David had no duty to intervene and Kegney was not trying to conceal David's identity and (3) RCW 4.16.170 does not apply. Kegney is correct.

I. Washington CR 15(c)

The party seeking to amend its complaint has the burden to prove that the conditions of CR 15(c) are satisfied. Segaline v. Dep't of Labor & Indus., 169 Wn.2d 467, 477, 238 P.3d 1107 (2010). We review the trial court's CR 15(c) ruling for abuse of discretion. Kommavongsa v. Haskell, 149 Wn.2d 288, 295, 67 P.3d 1068 (2003).

Karlmann first argues that the trial court abused its discretion by failing to interpret CR 15(c) liberally to allow the parties to try their claims on their merits. Relying on DeSantis v. Angelo Merlino & Sons, Inc., Karlmann argues that historical interpretation of the Fed.R.Civ.P. 15(c) allows parties to try their claims on the merits. 71 Wn.2d 222, 224, 427 P.2d 728 (1967). Kegney responds that the trial court properly denied leave to amend because Karlmann's failure to add David was a result of inexcusable neglect. Kegney is correct.

In DeSantis, our Supreme Court held that the court should liberally construe Fed.R.Civ.P. 15(c) when the plaintiff misidentified the defendant as a proprietorship instead of a corporation. 71 Wn.2d at 222, 224. But the DeSantis court clarified that its holding applied only to the facts and circumstances of that particular case, which involved the misidentification of a corporation, not individual parties, and it declined to extend its holding concerning Fed.R.Civ.P. 15(c) to Washington's civil rules.^[6] 71 Wn.2d at 225. Therefore, we reject Karlmann's argument that the court must always liberally construe Washington's CR 15(c).

The party seeking to amend its complaint has the burden to prove that CR 15(c) is satisfied. Segaline, 169 Wn.2d at 477. "When a party is added or substituted upon amendment of a complaint, the amended complaint relates back to the date of the original pleading for purposes of a statute of limitations if (1) the new party received notice of the institution of the action so that he or she will not be prejudiced in making a defense on the merits; (2) the new party knew or should have known that, but for a mistake concerning identity of the proper party, the plaintiff would have brought the action against him or her; and (3) the plaintiff's delay in adding the new party was not due to "'inexcusable neglect.'" Segaline, 169 Wn.2d at 477 (quoting Stansfield v. Douglas County, 146 Wn.2d 116, 122, 43 P.3d 498 (2002)) (citations omitted).

Regarding the requirement that the "new party knew or should have known" that Karlmann mistakenly named Kegney, Karlmann argues that David knew his mother was involved in a lawsuit concerning the collision in which he was involved. Segaline, 169 Wn.2d at 477. Kegney does not dispute that David knew Kegney was involved in a lawsuit. Instead she argues that Karlmann had actual notice that Kegney was not the proper party, thus Karlmann does not satisfy the third element of CR 15(c) because her mistake was a result of inexcusable neglect.

CR 15(c) does not allow for joinder of a new party if the plaintiff's delay in adding the new party was due to " 'inexcusable neglect.' " Segaline, 169 Wn. 2d at 477 (quoting Stansfield, 146 Wn.2d at 116). "[I]nexcusable neglect exists when no reason for the initial failure to name the party appears in the record." S. Hollywood Hills Citizens Ass'n for Pres. of Neighborhood Safety & Env't v. King County, 101 Wn.2d 68, 78, 677 P.2d 114 (1984). Furthermore, "'a conscious decision, strategy or tactic'" to fail to name a party will not defeat the expiration of the statute of limitations under CR 15(c). Stansfield, 146 Wn.2d at 122 (quoting Pub. Util. Dist. No. 1 v. Walbrook Ins. Co., 115 Wn.2d 339, 349, 797 P.2d 504 (1990)).

The plaintiff may establish that failure to name the proper party was excusable neglect under CR 15(c) when "the record reflected that [the plaintiff] misidentified the defendant after she misread the insurance card, misunderstood the identity of the driver, and had no reason to know the proper party." Watson v. Emard, 165 Wn.App. 691, 701, 267 P.3d 1048 (2011) (emphasis added) (citing Nepstad v. Beasley, 77 Wn.App. 459, 467, 892 P.2d 110 (1995)) . In contrast, the plaintiff fails to establish excusable neglect when informed of the proper party's identity. See Segaline, 169 Wn.2d at 477.

Recently, we held that the trial court abused its discretion when it denied plaintiff's proposed amendment to add an unnamed party because plaintiff's counsel had no way to identify the additional party before the statute of limitations expired. Watson, 165 Wn.App. at 702. In Watson, Miles Emard, the driver, showed Watson, the injured party, his father's insurance card at the accident scene and then left without filing a police report. Watson, 165 Wn.App. at 695-96. The insurance company sent six letters to Watson referring to the defendant as "our insured" or "Michael Emard" and did not indicate that the driver was Miles Emard. Watson, 165 Wn.App. at 696. Emard's counsel did not respond to the complaint by notifying plaintiff that he was not the driver until the statute of limitations had expired and Watson's counsel had no reason to know that Michael Emard was not the driver until that time. Watson, 165 Wn.App. at 696.

In Watson, we held that "'[g]enerally, inexcusable neglect exists when no reason for the initial failure to name the party appears in the record.'" Watson, 165 Wn.App. at 700 (quoting Teller v. APM Terminals Pac., Ltd., 134 Wn.App. 696, 706, 142 P.3d 179 (2006)). "The moving party has the burden of proof to show that any mistake in failing to timely amend was excusable." Watson, 165 Wn.App. at 700. Failing to "name a party who is apparent, or ascertainable upon reasonable investigation, is inexcusable." Watson, 165 Wn.App. at 700 (emphasis added). Furthermore, "[a] party is charged with her attorney's failure to research and identify all necessary parties." Watson, 165 Wn.App. at 700.

Unlike in Watson, here,...