It seems like a fairly standard, straightforward directive. But a simple typo can have serious consequences to a case, and plaintiffs need to know their attorneys have adequate experience and staff necessary to ensure such a mistake doesn’t happen.
Recently, this issue was before the Virginia Supreme Court in the matter of Richmond v. Volk.
This was a car accident lawsuit stemming from an incident in which plaintiff suffered injury after she was allegedly struck from behind by a vehicle driven by defendant. The vehicle driven at the time of the crash was owned by someone else, and defendant was a permissive user. The vehicle was covered under an auto insurance policy that belonged to its owner.
The statute of limitations on personal injury cases in that state is two years. The crash occurred in April 2009. In February 2011, plaintiff filed a lawsuit to recover damage for the injuries she had sustained in the crash. The lawsuit incorrectly named the owner of the vehicle as the defendant, as opposed to the driver. A copy was forwarded to the auto insurance company.
After plaintiff failed to negotiate a settlement with the auto insurance company, plaintiff directed the clerk to serve process on the defendant (the wrongly-named vehicle owner). Plaintiff further provided the clerk with the vehicle owner’s address instead of the driver’s address. Process was posted at the car owner’s residence. But in February 2012, the auto insurance company learned process was served on the wrong address, and a representative contacted plaintiff to discuss the case.
Soon after that conversation defendant driver filed a motion to quash the service of process because it was served on the wrong address. The high court in its review noted defendant driver never claimed she wasn’t the person identified in the lawsuit. In fact, she told the court specifically that she was “erroneously identified.”
Plaintiff moved to “non-suit” her claim, and that was granted. Plaintiff then refiled her claim properly and made sure it was properly served on the driver’s address.
Defendant driver asked the trial court to issue an order finding the claim was barred because it was filed after the statute of limitations. The trial court granted defendant’s request, finding defendant driver wasn’t the same person or entity as was named in the original lawsuit, and plaintiff couldn’t rely on the relation-back doctrine (which allows an action to be treated as if it was done earlier) because she failed to fix the error before the expiration of the statute of limitations.
Plaintiff appealed, arguing trial court erred because the statute of limitations was tolled when she filed the first complaint. Her error was a misnomer – wherein she used the wrong name – but not a misjoinder – wherein she wrongly identified the defendant.
The law allows correction of misnomers after the expiration of the statute of limitations, but not misjoinders. After conducting a legal analysis, the court determined this was a minsnomer, reversed the earlier decisions and remanded the case for trial.
Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.
Richmond v. Volk, Jan. 28, 2016, Virginia Supreme Court
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Surviving Victims of Violent DUI Crash in Florida Settle for $1.35M, Jan. 30, 2016, Fort Myers Injury Lawyer Blog