Opinion
No. 10-05-00177-CV
Opinion delivered and filed April 12, 2006.
Appeal from the 342nd District Court, Tarrant County, Texas, Trial Court No. 342-200691-03.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
The following chronology is at issue in this case in which Appellee James Ryan Wilhelm obtained a summary judgment against Appellant Lisa Mishak:
• August 10, 2001: Mishak and Wilhelm were in an auto accident.
• August 7, 2003: Mishak filed suit against "Allstate Indemnity Company, as Insurer of James Ryan Wilhelm."
• August 14, 2003: Allstate was served.
The trial court later dismissed Allstate as a defendant. See, e.g., Allstate Ins. Co. v. Watson, 876 S.W.2d 145, 149 (Tex. 1994) (Texas prohibits direct actions against insurers on third-party claims).
• October 16, 2003: Mishak amended her petition, adding as a defendant "Marcia Wilhelm as Guardian of James Ryan Wilhelm" (Marcia is the mother of James).
• January 9, 2004: Mishak again amended her petition, adding James Ryan Wilhelm as a defendant.
The trial court granted Wilhelm's motion for summary judgment, which asserted that the two-year statute of limitations barred Mishak's claim. See TEX. CIV. PRAC. REM. CODE ANN. § 16.003(a) (Vernon 2002 Supp. 2005). Mishak argued in the trial court and argues on appeal that the equitable tolling exception based on misidentification applies so that her suit against Wilhelm relates back to the filing of the original petition.
If the plaintiff merely misnames the correct defendant (misnomer), limitations is tolled and a subsequent amendment of the petition relates back to the date of the original petition. If, however, the plaintiff is mistaken as to which of two defendants is the correct one and there is actually existing a corporation with the name of the erroneously named defendant (misidentification), then the plaintiff has sued the wrong party and limitations is not tolled.
Enserch Corp. v. Parker, 794 S.W.2d 2, 4-5 (Tex. 1990). "A misnomer occurs when the correct defendant is sued and served with process, but is misnamed in the petition." Cortinas v. Wilson, 851 S.W.2d 324, 327 (Tex.App.-Dallas 1993, no writ) (citing Matthews Trucking Co. v. Smith, 682 S.W.2d 237, 238 (Tex. 1984)). "Misidentification occurs when two separate legal entities with similar names actually exist and the plaintiff sues the wrong one because he is mistaken about which entity is the correct defendant." Torres v. Johnson, 91 S.W.3d 905, 908 (Tex.App.-Fort Worth 2002, no pet.) (citing Chilkewitz v. Hyson, 22 S.W.3d 825, 828 (Tex. 1999), and Enserch Corp., 794 S.W.2d at 4-5). "The statute of limitations will be tolled in misidentification cases if there are two separate, but related, entities that use a similar trade name and the correct entity had notice of the suit and was not misled or disadvantaged by the mistake." Flour Bluff ISD v. Bass, 133 S.W.3d 272, 274 (Tex. 2004).
Mishak asserts that this case presents a misidentification issue, claiming that the insurer-insured relationship between Allstate (who was timely sued) and Wilhelm (who was not timely sued) serves to toll the statute of limitations. But there could not have been confusion between Allstate and Wilhelm, and the Texas Supreme Court has refused to extend misidentification to the insurance context. See id. at 273-74 (rejecting misidentification exception where plaintiff incorrectly sued worker's comp third-party administrator, rather than employer). Texas courts have also refused to extend misidentification to individuals. See Fleener v. Williams, 62 S.W.3d 284, 286-87 (Tex.App.-Houston [1st Dist.] 2001, no pet.); Cortinas, 851 S.W.2d at 327. Finally, misidentification requires actual notice to the correct defendant of the lawsuit within the limitations period. Torres, 91 S.W.3d at 909. The parties stipulated that neither Allstate nor Wilhelm's mother had actual notice of the suit within the limitations period, and there is no evidence in the record suggesting that Wilhelm had such notice.
The trial court correctly granted Wilhelm's motion for summary judgment. We overrule Mishak's two issues and affirm the trial court's judgment.