Summary
affirming judgment for the defendant on statute-of-limitations ground where the plaintiff “waited almost 10 months before amending the complaint” after defendant was identified
Summary of this case from Patterson v. Consol. Aluminum Corp.Opinion
1910394.
August 14, 1992. Rehearing Denied November 13, 1992.
Appeal from the Baldwin Circuit Court, No. CV-90-414, Charles C. Partin, J.
Stephen D. Heninger of Heninger, Burge Vargo, Birmingham, for appellant Lezlie Sherrin.
A. Neil Hudgens and Thomas H. Nolan, Jr. of Brown, Hudgens, P.C., Mobile, for appellee Dr. William Bose.
W. Boyd Reeves of Armbrecht, Jackson, DeMouy, Crowe, Holmes Reeves, Mobile, for appellee Bay Emergency Physicians, P.A.
On June 18, 1990, the plaintiff, Lezlie Sherrin, filed a wrongful death action in the Circuit Court for Baldwin County. The original complaint named as defendants Thomas Hospital, Dr. Michael L. McBrearty, and fictitiously named defendants. The complaint was amended on three occasions to add and substitute additional defendants as discovery progressed. On June 10, 1991, defendant Bay Emergency Physicians, P.A. ("Bay"), who had been substituted for a fictitiously named defendant, filed a motion to dismiss the complaint, based upon a statute of limitations argument. On July 30, 1991, defendant Dr. William Bose, who had been substituted for a fictitiously named defendant, filed a motion for a summary judgment, based upon a statute of limitations argument. Both of these motions were treated as motions for summary judgment, and, after taking them under submission to determine whether the plaintiff could have discovered the defendants' addresses within the two-year limitations period, the trial court entered summary judgments as to these two defendants on November 19, 1991. The plaintiff appealed on December 5, 1991. We affirm.
The issue on appeal is whether the trial court erred in holding that the plaintiff's claims against the defendants were barred by the statute of limitations on the basis that the plaintiff's counsel failed to properly substitute defendants for fictitiously named defendants under Rule 9(h), A.R.Civ.P., so that the substitution related back to the filing of the original complaint pursuant to Rule 15(c). The defendants were set forth in the original complaint as follows:
"THOMAS HOSPITAL; Defendant number 1 being the proper legal designation of the entity known as Thomas Hospital;
DR. MICHAEL L. McBREARTY; Defendant number 2 being that person or entity responsible for the diagnosis, care and treatment of plaintiff's decedent at the times set forth in the complaint; Defendant number 3 being that person or entity which failed to properly attend to the medical condition of plaintiff's decedent as set forth in the complaint; all of whose true and correct names are otherwise unknown but will be added by amendment when properly ascertained."
The plaintiff's cause of action against Bay is governed by the Wrongful Death Statute. The statute requires that "such action must be commenced within two years from and after the death of the testator or intestate." Alabama Code 1975, § 6-5-410. In this case, the death occurred on March 1, 1989; thus, the two-year limitations period expired on March 1, 1991. The plaintiff's second amended complaint, which substituted Bay for a fictitiously named defendant, was filed on May 24, 1991, about two and one-half months after the two-year limitations period had expired. The plaintiff knew of Bay's true identity before the statutory period of limitations expired. The record reflects that, despite this knowledge, the plaintiff failed to amend the complaint until after the period had expired. The plaintiff's claim is thus time-barred, because she failed to properly substitute Bay for a fictitiously named defendant under Rule 9(h), A.R.Civ.P., so that the substitution related back pursuant to Rule 15(c), to the filing of the original complaint.
The plaintiffs complaint "demands judgment against all defendants, separately and severally, in accordance with the laws and dictates of the Alabama Medical Liability Act and for such damages as a jury may assess after a full and fair consideration of the facts." The AMLA requires that "all actions against physicians, surgeons, dentists, medical institutions or other health care providers for liability, error, mistake or failure to cure, whether based on contract or tort, must be commenced within two years after the act or omission or failure giving rise to the claim, and not afterwards." Alabama Code 1975, § 6-5-482.
In order to invoke the relation-back principle and proceed under the fictitious party rule, the plaintiff has the burden of satisfying two conditions:
"1) plaintiff must state a cause of action against the fictitious party in the body of the original complaint; and 2) plaintiff must be ignorant of the identity of the fictitious party, in the sense of having no knowledge at the time of the filing that the later named party was in fact the party intended to be sued."
Columbia Engineering International Ltd. v. Espey, 429 So.2d 955, 958-59 (Ala. 1983). In Columbia Engineering, we stated that Rule 9(h) is applicable where the plaintiff "has been unable to ascertain through due diligence the name of that responsible person or entity." Id. at 959. In Kinard v. C.A. Kelly Co., 468 So.2d 133, 135 (Ala. 1985), we said that the plaintiff must "proceed in a reasonably diligent manner in determining the true identity of the defendant." After the plaintiff has discovered the true identity of the fictitiously named party, the plaintiff is then under a duty to promptly amend the complaint to reflect the true defendant. See, e.g., Kinard, 468 So.2d at 135 (the plaintiff must substitute the named defendant within a "reasonable time" after determining the defendant's true identity); Peek v. Merit Machinery Co., 456 So.2d 1086, 1091 (Ala. 1984) (the courts have refused to apply the relation-back principle to instances where there has been an "inordinate delay" after the plaintiff determined the defendant's true identity).
We have carefully reviewed the record, and it clearly demonstrates that the plaintiff was placed on notice of Bay's true identity when the defendant Dr. McBrearty and the defendant Thomas Hospital submitted their answers to the plaintiff's interrogatories on July 24, 1990, and July 31, 1990, respectively, and therein identified "Bay Emergency Physicians" as Dr. Bose's employer. The plaintiff's interrogatories asked:
"4. Please state the name and address of the first physician to see plaintiff's decedent at the emergency room or hospital on March 1, 1989."
Both Dr. McBrearty and Thomas replied:
"4. Dr. William Bose."
The plaintiff further asked:
"5. What was the relationship of the above-described physician to defendant's hospital on that occasion?"
Both defendants answered:
"5. Dr. Bose was an employee of Bay Emergency Physicians with whom Thomas Hospital had a contract to furnish emergency room physician services."
The plaintiff's counsel waited almost 10 months before amending the complaint. The limitations period expired approximately seven months after the plaintiff's counsel was informed that Bay was the employer of the first physician to see the plaintiff's decedent in the hospital. In Columbia Engineering, 429 So.2d at 959, we said:
"[T]he principal reason for the rule is to toll the statute of limitations in emergency cases where plaintiff knows he has been injured and has a cause of action against some person or entity, but has been unable to ascertain through due diligence the name of that responsible person or entity. . . . A contrary rule would emasculate the statute of limitations, which sets the time period a plaintiff has in which to determine who has hurt him and how."
In this case, the plaintiff had notice of Bay's identity within the statutory limitations period; however, the plaintiff did not have Bay's address. To read the rule to mean that the statutory period of limitations is tolled until the plaintiff obtains the address of the fictitiously named defendant would be contrary to the purpose of Rule 9(h), A.R.Civ.P.
In Kinard v. C.A. Kelly Co., 468 So.2d 133, 135 (Ala. 1985), we said:
"After the statute of limitations has run for purposes of adding new defendants, a plaintiff may substitute a named defendant for a fictitious one if Rule 9(h) has been complied with. Although the express language of the statute does not require the plaintiff to substitute the named defendant for the fictitious party within a reasonable time after determining the defendant's true identity, this Court has imposed such a duty. Clearly, the policy reasons for having a statute of limitations militate in favor of such a result. . . . The recalcitrant plaintiff cannot . . . use the rule to gain what might otherwise amount to an open-ended statute of limitations. We opined that the same policy considerations . . . require the plaintiff to proceed in a reasonably diligent manner in determining the true identity of the defendant."
It appears that reasonable diligence would have provided the plaintiff with Bay's address. The trial court illustrated this fact in its order entering the judgment in favor of Dr. Bose:
"Motion for summary judgment in favor [of] William Bose and against plaintiff is granted because his name appeared in the Mobile telephone book and his license is on file with the State in Montgomery. Motion for summary judgment in favor of Bay Emergency Physicians, P.A., and against plaintiff is granted because certificate of incorporation is on file in the Baldwin County Probate office. The court expressly finds that there is no just reason for delay and directs the clerk to enter both judgments pursuant to Rule 54(b), A.R.Civ.P."
The same reasoning applies to Dr. Bose. On July 26, 1990, slightly over a month from the date of filing of the plaintiff's complaint, Dr. McBrearty answered the plaintiff's interrogatories and clearly stated that Dr. William Bose was the first physician to see the plaintiff's decedent in the emergency room on March 1, 1989. Dr. McBrearty also answered that Dr. Bose was an employee of Bay Emergency Physicians, with whom Thomas Hospital had a contract for emergency room physician services. Thus, as of July 26, 1990, the plaintiff was in possession of the correct name of the attending physician who first saw and treated the plaintiff's decedent in the emergency room and she was informed that Dr. Bose was an employee of Bay. Not until June 26, 1991, did the plaintiff file a third amendment to her complaint that substituted Dr. William Bose as a defendant. The plaintiff's complaint against Dr. Bose is barred by the statute of limitations and is not saved by Alabama's fictitious-party pleading rule, because the plaintiff had actual knowledge of the identity of Dr. Bose as a treating physician well within the statutory period, yet did not timely amend her complaint. For the reasons stated, the judgments are affirmed.
AFFIRMED.
MADDOX, ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
HORNSBY, C.J., and KENNEDY and INGRAM, JJ., dissent.
Where is the prejudice here if the substitution of Bose and Bay were permitted to relate back? This Court has stated that relation-back will be denied where there is an "inordinate delay" in substitution and "the delay prejudice[s] the defendant." Wallace v. Doege, 484 So.2d 404, 406 (Ala. 1986) (stating that "relation-back . . . will not be applied where there has been an inordinate delay . . ., if the delay prejudiced the defendant"); Peek v. Merit Machinery Co., 456 So.2d 1086 (Ala. 1984) (stating that the defendant had failed to establish prejudice and, therefore, refusing to deny relation-back). Even in cases where the delay was for a period of years we have still required a showing of prejudice. See, e.g., Denney v. Serio, 446 So.2d 7 (Ala. 1984) (where a fictitious party was named in a 1980 complaint and substitution was not sought until 1982, after the statutory period of limitations had run, the Court permitted relation-back because the defendant failed to show prejudice). There has been no showing of prejudice in this case, nor, in fact, does the majority mention prejudice in its opinion, although the plaintiff has properly raised it as an issue.
I respectfully submit that this alone represents a gross and fatal flaw in the analysis of the majority. However, I also disagree with the majority's conclusion that there was an inordinate delay in substitution after learning the true identities of Bose and Bay. In fact, substitution closely followed the plaintiff's full knowledge of the identity of Bose and Bay.
A pivotal assertion, relied on by the majority for its holding that there was an inordinate delay in substitution, is that "The plaintiff knew of Bay's true identity before the statutory period of limitations expired." The majority states that the same is true as to Bose. This is incorrect.
The defendants do not dispute the following facts pertinent to this matter:
Months before the statutory period of limitations had run, the plaintiff directed to Thomas Hospital and Dr. McBrearty the interrogatories referred to by the majority. The responses of those two defendants were identical, and they included incomplete information relating to Bose and Bay. Specifically, the answers failed to identify the location of the Dr. Bose in question and, unknown to the plaintiff, failed to give a complete name for Bay by omitting its "P.A." designation.
The latter may appear to be a minor omission, but this omission was complicated by counsel for Thomas Hospital, who, as I will discuss, then named Bay, in correspondence to the plaintiff, by yet another incorrect name.
To further complicate matters, "ESES?' was listed on the decedent's emergency room sheet after the notation, "Dr. Bose." The plaintiff's counsel states that he was also engaged in activities to determine whether ESES might relate to the true identity of the employer of the physician whose identity he also sought. The plaintiff's counsel states that he has subsequently learned that "ESES" stands for yet another entity, Eastern Shore Emergency Services.
After receiving the interrogatory answers referred to by the majority, counsel for the plaintiff telephoned counsel for Thomas Hospital (who became, also, counsel for Bay), to inquire as to where the Bay described in the interrogatory answers was located. Although Thomas Hospital had stated in interrogatories that it had a contract with Bay, its counsel asserted a total lack of knowledge of Bay's address.
Counsel for Thomas Hospital followed up the plaintiff's inquiry with a letter to counsel for the plaintiff, stating therein:
"As I advised you, I do not know the address of Bay Emergency Physicians, P.C. who you intend to name as a party defendant in this case. To my knowledge, Dr. William Bose was working for Bay Emergency Physicians under a contract which that organization had with Thomas Hospital to provide emergency room services to the hospital."
Note that now, Bay is denominated as "Bay Emergency Physicians, P.C." (which is incorrect).
Counsel for the plaintiff responded by letter:
"You were unable to provide me with an address for either Dr. William Bose or Bay Emergency Physicians, P.C. We have checked with the Secretary of State, medical facilities around the bay area and other law firms. No one has been able to give me an address for service on either of these two entities. That is the reason I have not been able to amend the complaint. Can you help?"
Counsel for Thomas Hospital wrote back: "If you will send me a couple of interrogatories, perhaps you could obtain this information."
The requested interrogatories were served, promptly thereafter, on January 30, 1991, over a month before the statutory limitations period was to run. Thomas Hospital did not timely respond. A timely response would have come within the limitations period. Thomas Hospital delayed in responding to these interrogatories until April 23, 1991, more than a month after the limitations period had run.
When Thomas Hospital did finally respond, it did so with yet another name for Bay. Thomas Hospital stated that the Dr. Bose in question had been employed by Bay Medical Clinic, P.A., in Fairhope, Alabama (also, according to Bay Medical Clinic, P.A., incorrect).
In sum, before the statutory period of limitations had run, the plaintiff had not been able to correctly identify Bay. In fact, the plaintiff, even through considerable efforts, had not been able to obtain the full and correct name of Bay. Moreover, there is evidently more than one entity operating in the Mobile/Fairhope area with a name like Bay's, e.g., Bay Medical Clinic, P.A.
Also, as to Bose, the plaintiff had been able to correctly identify only a name; the plaintiff was confronted with a morass of conflicting information as to the employer of this person and, despite her attorney's efforts, had no information as to where service on the correct Dr. Bose could be had.
In Threadgill v. Birmingham Bd. of Educ., 407 So.2d 129, 132 (Ala. 1981), we stated that Rule 9(h) is "intended to operate principally in the area of emergency cases where neither the name nor the identity of the defendant is known." Names can be identical and names can be misspelled or incorrectly stated, as this plaintiff will surely attest; more than a name must be learned before one can be reasonably certain that he or she has named the correct person as a defendant and in order to effectively bring that person into court.
Until after the statutory period had run, the plaintiff, despite considerable efforts, was largely left in the dark about Dr. William Bose, although before the period ran she had properly requested and had tacitly been promised additional information about Bose by counsel for Thomas. Similarly, there is no question that the plaintiff had not, until after the statute ran, been able to correctly identify Bay.
However, as the majority points out, one must "proceed in a reasonably diligent manner in determining the true identity of the defendant." Kinard v. C.A. Kelly Co., 468 So.2d 133, 135 (Ala. 1985). Note that one is not required to proceed with "all diligence," exhausting every means at his or her disposal, but with efforts that, objectively viewed, indicate that he or she proceeded with "reasonable diligence."
Given the fact that the plaintiff did not ascertain the true identity of Bay and Bose until after the statutory period had run, the question becomes whether the plaintiff failed to use reasonable diligence in learning the true identities of these defendants. The majority indicates that it holds both that the identities were known before the limitations period ran and that if there was any lack of information relating to the identity of Bay and Bose before that time, it was because the plaintiff did not use reasonable diligence in seeking this information.
Here, I must make a critical point about the statement of counsel for Thomas Hospital made over a month before the limitations period ran. Recall that counsel for Thomas Hospital tacitly promised the plaintiff the information needed ("[i]f you will send me a couple of interrogatories"). Specifically, it bears emphasis that at that point, counsel for Thomas Hospital clearly suggested that he had access to the information needed but that he would not provide it informally; he indicated that if the plaintiff made a formal request through interrogatories then counsel for Thomas Hospital would provide the identifying information about Bay and Bose.
This information had already been requested by a previous interrogatory as to Dr. Bose. Note, also, that counsel for Thomas Hospital had previously denied any knowledge of this information.
The Committee Comments to Ala.R.Civ.P. 33 cite several cases for the proposition that "where a party acquires information after he has answered an interrogatory which would change his answer, there is an obligation upon him to apprise the party who submitted the interrogatory of this additional information."
Nevertheless, in an attempt to get the information, the plaintiff immediately complied with the request for additional interrogatories.
This fact is important, because, at that point, the plaintiff had no reason to believe that further outside investigation was necessary; the information sought was available, as logically it should have been, through counsel for the very hospital that by its own admission had a contract with Bay, and in which, by its own admission, Bose had rendered care.
Yet, as regards Bay, the majority suggests that the plaintiff's Birmingham counsel, rather than investigating the identity of Bay through discovery tools, should have been scouring, for example, Mobile telephone books or medical license records. Even assuming that any of the incomplete or erroneous names for Bay that the plaintiff had knowledge of would have rendered such a pursuit fruitful, this is an incorrect assessment. Reasonableness did not require the plaintiff to use methods outside discovery after counsel for Thomas Hospital had clearly indicated that the information needed was within the easy reach of discovery and where the plaintiff engaged in efforts to obtain that information through discovery.
In fact, it is evident that the reason the statute of limitations became an issue here was the fact that, in violation of our rules of procedure, counsel for Thomas Hospital (who also represents Bay) failed to timely respond to an interrogatory that would have yielded the information sought, and, further, delayed in responding until after the limitations period had run. The plaintiff's counsel made diligent efforts within the framework of our rules of procedure, but he was not receiving the required cooperation of opposing counsel. The majority permits Bay to enjoy an ill-gotten advantage.
In my view, the plaintiff did indeed act with reasonable diligence. The record indicates that before counsel for Thomas Hospital indicated that discovery would yield the information needed, the plaintiff had contacted the secretary of state's office, medical offices around Mobile, and Mobile attorneys, had filed interrogatories and requests for production, and had sought this information by both telephone and written correspondence with counsel for Thomas Hospital.
HORNSBY, C.J., and INGRAM, J., concur.