OKLA. STAT. ANN. tit. 12 §§ 1038 (West 1961).Meighan v. Birmingham Term. Co., 165 Ala. 591, 51 So. 775 (1910); Braun v. Moreno, 11 Ariz. App. 509, 466 P.2d 60 (1970); Johnson v. Levy, 122 La. 118, 47 So. 422 (1908); Tietjens v. General Motors Corp., 418 S.W.2d 75 (Mo. 1967); Barnes v. Smith, 305 F.2d 226 (10th Cir. 1962) (New Mexico); Thorpe v. Wilson, 58 N.C. App. 292, 293 S.E.2d 675 (1982); Hayes v. Gill, 216 Tenn. 39, 390 S.W.2d 213 (1965); and, Marcante v. Hein, 51 Wyo. 389, 67 P.2d 196 (1937). Statutory enactments by other states prohibiting or allowing punitive damages provide no assistance in resolving the specific issue before us: whether exemplary damages may be assessed under a statute which specifically provides that all causes of action survive against the representative of a deceased.
N.C. Gen. Stat. § 1A-1, Rule 15(a) (1990). As this Court stated in Thorpe v. Wilson, 58 N.C. App. 292, 293 S.E.2d 675 (1982), in allowing a similar name change: "Names are to designate person, and where the identity is certain a variance in the name is immaterial." Patterson v. Walton, 119 N.C. 500, 501, 26 S.E. 43, 43 (1896).
Brown argues on appeal that although the letter does not fully comply with North Carolina's Rules of Civil Procedure, we should nonetheless uphold the trial court's ruling that the letter constituted an answer. First, he points out that a pleading has served its purpose if it provides notice of the facts asserted by a party for his or her cause of action or defense. He cites Thorpe v. Wilson, 58 N.C. App. 292, 293 S.E.2d 675 (1982) and Jones v. Whitaker, 59 N.C. App. 223, 296 S.E.2d 27 (1982) for the proposition that errors or defects in a pleading that do not affect substantial rights are to be disregarded. Furthermore, he directs our attention to the comment of Rule 10, which states that the Rule was "designed . . . to cause factual issues to clearly emerge."
Upon appeal by both parties, this Court affirmed the trial court's ruling on plaintiffs' ability to recover damages only to the extent of the insurance coverage. Thorpe v. Wilson 58 N.C. App. 292, 293 S.E.2d 675 (1982). The present action, by the Thorpe estate against DeMent for his alleged negligence in failing to provide proper notice to the Wilson estate, was filed on 31 October 1979.
e's correct name was caused by the Defendants - and particularly by the franchisee itself, and since the pro se Plaintiff has managed to allege all of the alternatively used names of the franchisee, it is hard to imagine that the state court would not allow the Plaintiff to amend her Complaint on remand to substitute J.L. Kuder Enterprises, Inc., d/b/a Servpro of McDowell & Rutherford Counties for "Servpro of Marion" as a defendant in this matter. See also Langley v. Baughman, 195 N.C. App. 123, 126, 670 S.E.2d 913, 915 (2009) (applying Liss to allow amendment to relate back where "defendant received notice of the original claim despite the error in his name"); Pierce v. Johnson, 154 N.C. App. 34, 571 S.E.2d 661 (2002) (applying Liss where the named defendant, unbeknownst to plaintiff, was deceased and service of summons and complaint was unintentionally effected on the individual who had been named the personal representative of his estate and was the proper defendant in the matter); Thorpe v. Wilson, 58 N.C. App. 292, 297, 293 S.E.2d 675, 679 (1982) ("If, as here, the effect of amendment is merely to correct the name of a person already in court, there is no prejudice. This is true even though the change relates back to the date of the original complaint."). Moreover, because Plaintiff's claims against this defendant relate back, Defendants' argument regarding the statute of limitations is inapplicable.
North Carolina's prohibition against awarding punitive damages against a person solely based on vicarious liability, and prohibiting punitive damages against corporations unless the officers, directors, or managers of the corporation participated in or condoned the conduct constituting the aggravating factor reflects the common law notion that "[t]he sole purpose of the allowance of punitive damages is to punish the wrongdoer." Thorpe v. Wilson, 58 N.C. App. 292, 299, 293 S.E.2d 675, 680 (1982). Defendant contends that, in applying North Carolina's damages statute to Plaintiff's allegations, it is apparent to a legal certainty that punitive damages cannot be awarded against Defendant because the aggravating factors alleged in the complaint were conducted solely, if at all, by third parties.
The cases treated the policies as undistributed assets which were not covered by the nonclaim statute. See Thorpe v. Wilson, 58 N.C. App. 292, 293 S.E.2d 675 (1982); Force v. Sanderson, 56 N.C. App. 423, 289 S.E.2d 56, cert. denied, 306 N.C. 383, 294 S.E.2d 207 (1982); In re Miles' Estate, 262 N.C. 647, 138 S.E.2d 487 (1964). Plaintiff maintains that these cases are still good law and would allow recovery from the Dickerson estate in this case.
The cases treated the policies as undistributed assets which were not covered by the nonclaim statute. See Thorpe v. Wilson, 58 N.C. App. 292, 293 S.E.2d 675 (1982); Force v. Sanderson, 56 N.C. App. 423, 289 S.E.2d 56, cert. denied, 306 N.C. 383, 294 S.E.2d 207 (1982); In re Miles' Estate, 262 N.C. 647, 138 S.E.2d 487 (1964). Plaintiff maintains that these cases are still good law and would allow recovery from the Dickerson estate in this case.
See, e.g., Doe v. Colligan, 753 P.2d 144, 146 (Alaska 1988); Evans v. Gibson, 220 Cal. 476, 31 P.2d 389, 395 (1934); Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 939 (D.C. 1995); Lohr v. Byrd, 522 So.2d 845, 846-47 (Fla. 1988); Sightler v. Transus, Inc., 208 Ga.App. 173, 430 S.E.2d 81, 81 (1993), cert. denied, (citing Morris v. Duncan, 126 Ga. 467, 54 S.E. 1045, 1046 (1906)); Wolder v. Rahm, 249 N.W.2d 630, 632 (Iowa 1977); Fehrenbacher v. Quackenbush, 759 F.Supp. 1516, 1521-22 (D.Kan. 1991) (predicting Kansas law); Stewart v. Estate of Cooper, 102 S.W.3d 913, 916 (Ky. 2003); Johnson v. Levy, 122 La. 118, 47 So. 422, 424 (1908); Thompson v. Estate of Petroff, 319 N.W.2d 400, 408 (Minn. 1982); Allen v. Anderson, 93 Nev. 204, 562 P.2d 487, 488-89 (1977); Jaramillo v. Providence Wash. Ins. Co., 117 N.M. 337, 871 P.2d 1343 (1994); Thorpe v. Wilson, 58 N.C.App. 292, 293 S.E.2d 675, 680 (1982); McAdams v. Blue, 3 N.C.App. 169, 164 S.E.2d 490, 494 (1968) (citing Rippey v. Miller, 33 N.C. 247, 250 (1850)); Mongold v. Estate of Gilbert, 114 Ohio Misc.2d 32, 758 N.E.2d 1245, 1249 (Ohio Ct. of Com. Pl. 2000); Morriss v. Barton, 200 Okla. 4, 190 P.2d 451, 459-60 (1947); Olson-Roti v. Kilcoin, 653 N.W.2d 254, 260 (S.D. 2002); Hayes v. Gill, 216 Tenn. 39, 390 S.W.2d 213, 217 (1965); Dalton v. Johnson, 204 Va. 102, 129 S.E.2d 647, 650-51 (1963); Parker v. Artery, 889 P.2d 520, 525 (Wyo. 1995); 30 A.L.R.4th 707 §§ 3, 4 (1984 Supp. 2005) (listing courts that have refused to award punitive damages against a deceased tortfeasor's estate).See Evans, 31 P.2d at 395; Lohr, 522 So.2d at 846; Thompson, 319 N.W.2d at 408; Marcante v. Hein, 51 Wyo. 389, 67 P.2d 196, 202-03 (1937); Restatement (Second) of Torts § 908 cmt. a (1979); 1 J.D. Lee Barry A. Lindahl, Modern Tort Law § 21.35 (Rev. Ed. 1994); 1 James D. Ghiardi John J. Kircher, Punitive Damages Law Practice § 9.10 (1987 Cum.Supp. 1
Id. at 439, 100 S.E. at 880 (emphasis added) (citations and quotation marks omitted); see also McLean v. Matheny , 240 N.C. 785, 787, 84 S.E.2d 190, 191 (1954) ("Ordinarily, under the comprehensive power to amend process and pleadings where the proper party is before the court, although under a wrong name, an amendment will be allowed to cure a misnomer." (citations omitted)); Thorpe v. Wilson , 58 N.C. App. 292, 297, 293 S.E.2d 675, 679 (1982) ("If ... the effect of amendment is merely to correct the name of a person already in court, there is no prejudice."). Because our case law prior to the enactment of the North Carolina Rules of Civil Procedure makes clear that a trial court can correct a misnomer in a judgment, we conclude Rule 60(a) may be an appropriate vehicle for amending a judgment to correct a misnamed party.