Pan v. Bane

• Decision Date: 05 July 2006
• Docket Number: No. 102,233.,102,233.
• Parties: David Wei PAN, an individual, and Xiaolu Wang, an individual, Plaintiffs/Respondents v. Mark BANE, an individual, and Marta Bane, an individual, Defendants/Petitioners.
• Court: Oklahoma Supreme Court

141 P.3d 555

2006 OK 57

David Wei PAN, an individual, and Xiaolu Wang, an individual, Plaintiffs/Respondents v. Mark BANE, an individual, and Marta Bane, an individual, Defendants/Petitioners.

No. 102,233.

Supreme Court of Oklahoma.

July 5, 2006.

As Corrected July 26, 2006.

COPYRIGHT MATERIAL OMITTED

Interlocutory Certiorari Previously Issued to the District Court of Tulsa County; Honorable Ronald Shaffer.

¶ 0 Defendants/petitioners bring a certified, interlocutory appeal from the trial court's order granting the plaintiffs'/respondents' motion to amend their petition in order to add a new defendant and relate back to the original petition after the statute of limitations had run, pursuant to 12 O.S.2001, § 2015(C).

AFFIRMED.

Adam Scott Weintraub, Savage, O'Donnell, Affeldt, Weintraub & Johnson, Tulsa, OK, for Petitioners.

Kenneth E. Wagner, Roni S. Rierson, Marcus N. Ratcliff, Brian J. Goree, Latham, Stall, Wagner, Steele & Lehman, Tulsa, OK.

EDMONDSON, J.

¶ 1 The question before us in this accelerated review is whether, under these circumstances, plaintiffs' amendment to their petition adding a new party and a new theory of recovery after the expiration of the statute of limitations properly "relates back" under the provisions of 12 O.S.2001, § 2015(C), to the date the action was originally commenced. We find that it does and that the statute was correctly applied by the trial court. Certiorari was previously granted on defendants' petition to review the certified interlocutory order of the Tulsa County District Court and we affirm that court's order allowing the amendment.

¶ 2 This case arose from an automobile accident on March 1, 2003, involving a vehicle owned and occupied by plaintiffs, David Pan and his wife, Xiaola Wang, and a vehicle owned by defendants, Mark and Marta Bane. The material facts are not disputed. The Banes' minor daughter, Lacey Bane, was driving their automobile and this fact was shown in the accident report. On December 1, 2004, Mr. Pan and his wife filed a negligence action seeking damages for property and personal injuries sustained in the accident. Mark and Marta Bane and their insurance carrier, American Commerce, were named as defendants and were timely served within the 180 days allowed by 12 O.S. § 2004(I). The petition omitted Lacey as a defendant; instead, it alleged Mr. and Mrs. Bane had "negligently operated" the vehicle and caused the collision. In their answer Mark and Marta Bane did not state that they were not driving; instead, they denied being "negligent in the happening of the subject incident." Plaintiffs subsequently dismissed their action against the insurer.

¶ 3 The statute of limitations expired on March 1, 2005. In late April 2005, the plaintiffs discovered they had mistakenly identified Lacey's parents as the negligent operators of their vehicle. On April 28, 2005, plaintiffs filed their motion seeking leave to file an amended petition pursuant to § 2015(C), to add Lacey as a defendant in the negligence claim and to add negligent entrustment as a theory of recovery against Mark and Marta Bane.

¶ 4 Plaintiffs contended below, as they do on appeal, that the amended petition related back to the filing of the original petition pursuant to the provisions of the statute. They argued Lacey had constructive notice of the commencement of the action, as notice should be imputed to her from her parents because of the identity of interest between them; specifically, that she was a minor living in her parents' home, had been driving her parents' vehicle, and knew or should have known when her parents were sued that the action would have been brought against her but for the mistake as to the identity of the proper party. They also stressed that Lacey and her parents were covered under the same insurance policy, that their insurer had been on notice since the beginning of the suit, and that they also shared the same counsel. Defendants objected, arguing the action was barred by the statute of limitations and the facts of this action were not within the reach of § 2015(C).

¶ 5 The trial judge granted plaintiffs' motion and plaintiffs filed their amended petition and served Lacey with summons on May 25, 2005. The trial court certified its order for interlocutory appeal and entered an order staying the action. Resolution of this question involves the interpretation and application of a statute to undisputed facts, which is a question of law that we review de novo. Manley v. Brown, 1999 OK 79, 989 P.2d 448.

¶ 6 New parties or claims may not be added to a civil action by amendment to pleadings after the statute of limitations has run unless the requirements governing the relation back of amendments set forth in 12 O.S.2001, § 2015(C), have been satisfied. That statute provides:

C. RELATION BACK OF AMENDMENTS. An amendment of a pleading relates back to the date of the original pleading when:

1. Relation back is permitted by the law that provides the statute of limitations applicable to the action; or

2. 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; or

3. The amendment changes the party or the naming of the party against whom a claim is asserted if paragraph 2 of this subsection is satisfied and, within the period provided by subsection I of Section 2004 of this title for service of the summons and petition, the party to be brought in by amendment:

a. Has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and

b. 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.

An amendment to add an omitted counterclaim does not relate back to the date of the original answer.

The delivery or mailing of process to the Attorney General of Oklahoma, or an agency or officer who would have been a proper defendant if named, satisfies the requirements of subparagraphs a and b of this paragraph with respect to the State of Oklahoma or any agency or officer thereof to be brought into the action as a defendant.

¶ 7 Because the Oklahoma Pleading Code, 12 O.S. §§ 2001 et seq., is based on the Federal Rules of Civil Procedure, we rely on federal authority for guidance as to the construction of corresponding sections of our statutes. Section § 2015(C) is virtually identical to Rule 15(c) of the Federal Rules of Civil Procedure and we have adopted the construction placed upon it by the federal courts.¹ Dotson v. Rainbolt, 1995 OK 39, 894 P.2d 1109, 1113; Prough v. Edinger, Inc., 1993 OK 130, 862 P.2d 71, 74.

¶ 8 The general philosophy of modern pleading rules is that they should give fair notice of the claim and be subject to liberal amendment, be liberally construed so as to do substantial justice, and decisions should be made on the merits rather than on technical niceties. 5 Wright & Miller, Federal Practice and Procedure: Civil 3d §§ 1202, 1215-1226. Addressing the philosophy and purpose of the federal rules in Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 229, 9 L.Ed.2d 222(1962), the Supreme Court stated: "It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of . . . mere technicalities. `The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.' Conley v. Gibson, (citation omitted). The Rules themselves provide that they are to be construed `to secure the just, speedy, and inexpensive determination of every action.' Rule 1."

¶ 9 The relation back doctrine of Federal Rule 15(c) is remedial and promotes the general purpose of the federal rules by "providing the opportunity for a claim to be tried on its merits rather than being dismissed on procedural technicalities, when the policy behind the statute of limitations has been addressed." 3 Moore's Federal Practice, § 15.19[3][a](3d ed.at 15-84). The rationale of the doctrine is that where the party to be added² has received timely and fair notice of the institution of the original action and the facts upon which it is based, he has received all the notice and protection required by the statute of limitations which exists to protect defendants from prejudice that may result from having to defend against stale claims. See e.g., Bloomfield Mech. Contracting, Inc. v. Occupational Safety & Health Review Comm'n, 519 F.2d 1257, 1262 (3d Cir.1975) (purpose of relation back is to "ameliorate the effect of a statute of limitations where the plaintiff has sued the wrong party but where the right party has had adequate notice of the institution of the action"); Rendall-Speranza v. Nassim, 107 F.3d 913, 918 (D.C.Cir.1997) (The purpose of the rule is to "avoid the harsh consequences of a mistake that is neither prejudicial nor a surprise to the misnamed party. A potential defendant who has not been named in a lawsuit by the time the statute of limitations has run is entitled to repose-unless it is or should be apparent to that person that he is beneficiary of a mere slip of the pen, as it were."); Lacedra v. Donald W. Wyatt Detention Facility, 334 F.Supp.2d 114, 127 (D.R.I.2004) (in a proper case the doctrine ensures that new parties cannot use the statute of limitations to prevent litigation of claims when they received sufficient notice of the proceedings or were practically involved in the proceedings from the early stages of litigation).

¶ 10 Three requirements must be met in order for an amendment adding a new party to relate back to the original filing of the action. The first, same transaction, is satisfied in this case. Defendants concede the amended complaint...