Susan was a passenger on a motorcycle. The motorcycle driver passed a line of cars. The lead vehicle turned left, struck the motorcycle, and Susan was injured.
The police report named David as the vehicle driver, and Damiann (his mother) as the vehicle owner. David later testified at a traffic court hearing. Susan and her attorney were present. Susan recognized David as the driver. Susan’s attorney questioned David under oath.
About two years after the auto accident Susan sued Damiann (the mom) but did not name David. Damiann answered the complaint and denied she was a single male, and denied she was the driver.
After the statute of limitations ran, Susan’s attorney sought to amend the complaint and name David. The trial court denied the motion. Susan appealed. [NOTE: Our law firm was not involved in this case in any way.]
A personal injury claimant can add or substitute the defendant after the a statute of limitations has run only if
(1) the new party received notice of the institution of the action so that he or she will not be prejudiced in making a defense on the merits;
(2) the new party knew or should have known that, but for a mistake concerning identity of the proper party, the plaintiff would have brought the action against him or her; and
(3) the plaintiff’s delay in adding the new party was not due to inexcusable neglect.
Here, the courts held that Susan’s attorney’s failure to name David was inexcusable neglect. David was named in the police report as the driver. Susan and her attorney were present at David’s traffic hearing, and Susan’s attorney questioned David under oath. Damiann was named and served in the lawsuit, and formally denied she was a single male and that she was the driver.
The Court of Appeals upheld the trial court.[1] Because Susan’s attorney named the wrong person in the personal injury lawsuit, her claims against David are lost forever.
By personal injury attorney Travis Scott Eller
[1] Karlmann v. Kegney, unpublished (No. 42136-4-ii).