Nepstad v. Beasley

• Decision Date: 07 April 1995
• Docket Number: No. 16640-2-II,16640-2-II
• Parties: Lorena R. NEPSTAD, a single person, Appellant, v. Delores BEASLEY and Waylon J. Beasley, wife and husband, and the marital community of them comprised, Respondents.
• Court: Washington Court of Appeals

Page 459

77 Wn.App. 459

892 P.2d 110

Lorena R. NEPSTAD, a single person, Appellant, v. Delores BEASLEY and Waylon J. Beasley, wife and husband, and the marital community of them comprised, Respondents.

No. 16640-2-II.

Court of Appeals of Washington Division 2.

April 7, 1995.

Harold E. Winther, Harold E. Winther, P.S., Puyallup, for appellant

Charles J. Sinnitt, Sinnitt & Sinnitt, Inc., P.S., Timothy R. Gosselin, Burgess, Fitzer, Leighton & Phillips, P.S., Tacoma, for respondents.

WIGGINS, Judge.

Plaintiff Lorena Nepstad (Nepstad) brought this action to recover damages for injuries sustained when Nepstad's automobile was struck from behind by an automobile driven by Jocelyn Fox (Fox). Plaintiff erroneously believed that the automobile had been driven by Delores Beasley, the mother of Jocelyn Fox, and filed this action against Delores Beasley and Waylon J. Beasley, her husband (Beasleys). Plaintiff learned the true identity of the driver shortly after the statute of limitations expired, and immediately moved to amend the complaint under CR 15(c) to change the party against whom the claim was asserted. The trial court held that the amendment would not relate back to the date of the original complaint under CR 15(c) because plaintiff's failure to name Fox in the original complaint constituted "inexcusable neglect". We find the requirements of CR 15(c) are satisfied, that the amendment should relate back, and reverse and remand for further proceedings consistent with this opinion.

FACTS

Several months before the Nepstad/Fox accident, Jocelyn Fox separated from her husband and moved into her parents' home. Fox transferred legal title to her automobile to her mother, Delores Beasley, so that the car could be insured under her mother's insurance policy. Fox remained the registered owner of the vehicle. Fox maintained and controlled the car, and her parents never drove it.

On February 20, 1989, Fox drove her car into the rear of plaintiff Lorena Nepstad's car. Plaintiff was shocked by the impact, but she did not lose consciousness and was not

dazed. Immediately after the accident, Fox and plaintiff spoke briefly and exchanged information. Fox showed plaintiff the following insurance identification card:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

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Plaintiff copied down the name "Dolores [sic ] Beasley", her address, the PEMCO insurance policy number, "Waylon J. Beasley", a telephone number, and the statement, "[s]he was driving her folks [sic ] car." Plaintiff showed her driver's license to Fox. The parties dispute whether Fox showed her driver's license to plaintiff, and the trial court made no finding on this issue. ¹

Both plaintiff and Fox were insured by PEMCO. Over the next 2 1/2 years, plaintiff's attorney repeatedly corresponded with PEMCO and in at least four letters, various PEMCO representatives referred to "our insured" as "Beasley". None of the letters refers to Jocelyn Fox.

Plaintiff filed and served the complaint in this action in November 1991, 3 months before the statute of limitations was to expire. The complaint named "Delores Beasley and Waylon J. Beasley" as the defendants. The complaint did not refer to Jocelyn Fox. Paragraph 3.1 of the complaint alleged the time and place of the accident, and that the vehicle In December 1991, 2 months before the statute of limitations was to expire, plaintiff served interrogatories on defense counsel asking about the circumstances of the accident. The Beasleys did not answer the interrogatories within 30 days as required by CR 33(a). In fact, the Beasleys never answered the interrogatories. Instead, Jocelyn Fox met with defense counsel and answered the interrogatories, despite the fact that she was not the named defendant and was not mentioned anywhere in the interrogatories. The defense served the interrogatory answers on plaintiff's counsel on April 1, 1992, just over 1 month after the statute of limitations had run. The Beasleys then moved for summary judgment of dismissal on the ground that they did not drive the vehicle and were not negligent.

driven by "defendant Delores Beasley" collided with plaintiff's vehicle. The Beasleys answered 1 month before the statute of limitations expired, admitting the date and place of the accident, and generally denying the balance of paragraph 3.1 of the complaint.

Plaintiff immediately moved to amend the complaint to add Jocelyn Fox as a defendant, arguing that the amendment should relate back to the date of filing. The trial court granted the Beasleys' motion for summary judgment. The court took testimony on the motion to amend. The court concluded that plaintiff's mistaken reading of the insurance identification card constituted "inexcusable neglect" which barred relation back of the amendment under CR 15(c). The court relied primarily on South Hollywood Hills Citizens Ass'n. v. King Cy., 101 Wash.2d 68, 677 P.2d 114 (1984), and Foothills Dev. Co. v. Clark Cy. Bd. of Cy. Comm'rs, 46 Wash.App. 369, 730 P.2d 1369 (1986), review denied, 108 Wash.2d 1004 (1987). The court observed:

I can't sit in equity and do perhaps what I would like to do--I took an oath to uphold the law. And I'm satisfied that the case law submitted by [defense counsel] compels me to deny the plaintiff's motion to amend the complaint. I don't like the ruling I made. Jocelyn knew. But the plaintiff has the burden of showing it's excusable and I don't think that the plaintiff has carried that burden.

The trial court then dismissed the plaintiff's complaint on the ground that it was time barred.

ANALYSIS

REQUIREMENTS OF CIVIL RULE 15(c)

Civil Rule 15(a) governs amendments generally and allows amendments before a responsive pleading is served. After a responsive pleading has been served, "a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires."

Civil Rule 15(c) specifically governs when amendments will relate back to the date of the original pleading. If the amendment in this case relates back to the date of the original pleading, then the claim against Jocelyn Fox was brought within the statute of limitations and dismissal was erroneous. Under CR 15(c) an amendment changing a party against whom a claim is asserted relates back to the date of the original pleading if three conditions are satisfied: (1) "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"; (2) within the applicable statute of limitations, the party to be brought in by the amendment "has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits"; and (3) within the applicable statute of limitations, the party to be brought in "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." CR 15(c). All three conditions are satisfied here.

The first condition is indisputably satisfied because the original complaint and the amendment both relate to the same automobile accident.

The second condition is also satisfied. Fox was living in her parents' home at the time suit was commenced. Delores Beasley testified that she read the complaint and realized that she was not the proper party, and that she had been named instead of Fox. Delores Beasley testified that she and It is equally clear that the third requirement of CR 15(c) is satisfied in this case. Fox clearly knew or should have known that but for the mistake concerning the identity of the proper party, the action would have been brought against her. The trial judge orally stated, "Jocelyn knew", and the facts amply support this observation. Fox met with defense counsel in early January 1991 to answer the interrogatories propounded by plaintiff to the Beasleys and signed the interrogatories under oath as the "defendant in the above captioned action". Fox explained that she had answered the interrogatories instead of her parents, "[b]ecause it was for me.... [w]ell, probably because it's just obvious that it's my accident and I would be the one who had the information about it." She also admitted that there was no question in her mind that she had received the interrogatories and that they were really intended for her.

her daughter have maintained "a very close communicative relationship", and that she was sure that she shared information about the lawsuit with her daughter. Fox similarly testified that she and her mother had an "exceptional" communicative relationship, that she was "sure" that her mother told her about the complaint, and that her mother would probably tell her about anything important. Thus, Fox received sufficient notice of the lawsuit within the applicable statute of limitations that she will not be prejudiced in maintaining her defense on the merits.

The Supreme Court found that an amendment related back under the predecessor version of CR 15(c) under virtually identical circumstances in DeSantis v. Merlino and Sons Inc., 71 Wash.2d 222, 427 P.2d 728 (1967). In DeSantis, the original complaint named Angelo Merlino, d/b/a Merlino Pure Food Products Company, a proprietorship. In fact, however, the proper defendant was Angelo Merlino and Sons Inc., a Washington corporation. Just as in this case, the defendants retained counsel, who answered the complaint with a general denial and awaited expiration of the statute of limitations before moving to dismiss the complaint. As in this case, the trial court dismissed and ruled that the complaint "The rule [15(c) ] is to be liberally construed on the side of allowance of amendments, particularly where the opposing party is put to no disadvantage. (Citing cases.)

should not relate back. The Supreme Court reversed and remanded for trial on the merits:

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