MAASSEN, Justice.
Several men were in a car that rear-ended the plaintiff's vehicle. The plaintiff sued the car's owner, believing he had been driving. The car's owner moved to dismiss the lawsuit on the basis of an affidavit from a second man, who claimed he was driving at the time of the accident. The plaintiff amended her complaint to name both men. The second man then moved to dismiss the claim against him, arguing that under Alaska Civil Rule 15(c) the plaintiff's amended complaint did not relate back to the date of her initial filing and the claim was therefore barred by the statute of limitations. The district court agreed and dismissed the claim. The plaintiff proceeded to trial against the car's owner, who defended on grounds that he had not been driving. The jury found against the plaintiff, who then appealed to the superior court, arguing that the district court erred when it dismissed her claim against the second man. The superior court affirmed the district court's decision.
We granted review. We conclude that the plaintiff's amended complaint met the requirements for relation back under Rule 15(c), and we therefore reverse the superior court's decision.
Linda Sellers's car was rear-ended by a Dodge Durango on January 4, 2010. The Durango carried at least three men, including the owner, Stephan Kurdilla, and Daniel Stroud. Sellers later attested by affidavit that the Durango's driver approached her vehicle, identified himself as Stephan Kurdilla, and gave her an insurance identification card with Kurdilla's name on it. She attested that she copied down the information from the card. Her passenger, Bonnie Largen, affirmed in her affidavit that she saw the Durango's driver hand Sellers an insurance identification card, heard Sellers identify the driver as Kurdilla, and saw her copy down the information from the card. The police did not respond to the scene of the accident but
On January 11, 2010, State Farm mailed a claim acknowledgment notice which identified "Our Insured" as Daniel Stroud. But in its seven subsequent letters spanning January to July, State Farm identified "Our Insured" as Stephan Kurdilla.
In June 2010, attorney Michael Stepovich notified State Farm that he represented Sellers "in regard to injuries she sustained in a rear-ending by your insured"; in his letter he named Kurdilla as "Your Insured." State Farm replied on July 30, this time identifying "Our Insured" as Stroud. Its next two letters identified Kurdilla as its insured; its next two named Stroud; and the two after that again named Kurdilla. All in all, State Farm identified Kurdilla as its insured eleven times and Stroud four times in its correspondence with Stepovich.
On January 4, 2012, the last day before the statute of limitations expired, Sellers filed a complaint naming Kurdilla as the defendant and alleging that he had been driving the Durango at the time of the accident.
Michael Kramer, the attorney State Farm retained to represent Kurdilla, later attested by affidavit that Kurdilla called him on May 16, 2012, and told him that Stroud was the driver and that he (Kurdilla) had called Stepovich earlier that day with Stroud's contact information. Stepovich, however, disputes having received such a call from Kurdilla; he contends that it was not until a few months later, when Kurdilla filed a motion to dismiss the case, that Sellers first had notice that Stroud claimed to be the driver.
Kramer filed his entry of appearance on Kurdilla's behalf on June 1. On August 16 Kurdilla filed a motion to dismiss supported by a two-line affidavit from Stroud asserting that he, Stroud, had been driving at the time of the accident. Sellers opposed the motion to dismiss and filed an amended complaint that added "and/or Daniel Stroud" to the allegations of driver negligence. Sellers also moved for a continuance pursuant to Alaska Civil Rule 56(f) so that she could investigate whether Stroud was indeed the driver and whether he and Kurdilla had colluded to hide the driver's identity.
Stroud, also represented by Kramer, then filed a motion to dismiss the new claim against him on the grounds that Kurdilla's phone call to Stepovich, together with State Farm's letters, had put Sellers on early notice that Stroud was actually the driver and that the statute of limitations on a claim against him had now expired. Stroud also directly disputed Sellers's description of the relevant events by attesting in a supporting affidavit that at the time of the collision both he and Kurdilla approached Sellers's car, that Kurdilla "gave her his insurance card and clearly identified himself as the owner of the vehicle, and [that] [Stroud] clearly identified [him]self as the driver of the vehicle."
The district court denied Kurdilla's motion to dismiss, finding that there was a question of material fact as to whether he had been driving the Durango. But the court granted Stroud's motion to dismiss the claim against him, finding that State Farm's first letter to Sellers in January 2010 — one of the four that identified Stroud as the company's insured — should "have put [Sellers] on notice of a duty to investigate as to a possible second driver, and that would be sufficient for the statute of limitations argument that's being made in
The claim against Kurdilla proceeded to trial. Kurdilla presented testimony — his own, Stroud's, and that of another passenger in the car — that Stroud, not he, was driving at the time of the accident, and the jury returned a defense verdict. Sellers appealed to the superior court, arguing that the district court erred by dismissing her claim against Stroud and by denying her motion for a Rule 56(f) continuance.
On appeal, the superior court analyzed Rule 15 and concluded that there was no identity of interest between Kurdilla and Stroud that would allow Kurdilla's knowledge of the lawsuit to extend Sellers's time for bringing a claim against Stroud. The court noted that "Stroud and State Farm presumably have an identity of interest," but it concluded that Sellers had abandoned any argument based on that relationship. The superior court also observed that Kurdilla had been served more than 120 days after Sellers filed her complaint and that the trial court had not found good cause for a lack of timely service, meaning that Sellers could not meet another requirement of Rule 15(c) — notice of the lawsuit within the time allowed for service. The superior court affirmed "[t]he district court's decisions regarding the relation back and identity of interests doctrines."
The superior court declined to resolve another of Sellers's arguments — that the Servicemembers Civil Relief Act tolled the statute of limitations with respect to Stroud while Kurdilla, a member of the armed services, was deployed overseas — because the argument was raised for the first time on appeal. But the superior court did reverse and remand the district court's denial of Sellers's Rule 56(f) motion, noting that Sellers had not been dilatory in her discovery efforts and that there were adequate reasons to give her more time. Finally, the superior court reversed the district court's dismissal of Stroud from the case and remanded to the district court to determine whether there was a viable claim for fraud against the two men and, if so, when it had accrued.
Sellers filed a petition asking us to review the district and superior courts' holdings on the issues of identity of interest and relation back under Civil Rule 15(c). We granted the petition. Sellers argues: (1) that she made a mistake, not a deliberate tactical choice, when she identified Kurdilla as the defendant driver, and Rule 15(c) allows relation back in the event of a mistake; (2) that the service period Rule 15(c) refers to in which a potential defendant must receive notice of the litigation was extended beyond 120 days by the district court's order allowing service by publication; (3) that the Servicemembers Civil Relief Act tolled the statute of limitations on her claim against Stroud; and (4) that Stroud shares an identity of interest with State Farm, Kramer, and Kurdilla which means that any notice of the litigation to those parties may be imputed to him.
"We exercise our `independent judgment when interpreting the Alaska Rules of Civil Procedure.'"
As for the applicable standard of review for decisions whether amendments relate back under Alaska Civil Rule 15(c), Stroud notes that we review "a trial court's denial of a motion to amend a complaint under an abuse of discretion standard."
We review factual findings for clear error.
The full text of Alaska Civil Rule 15(c) is important to the discussion that follows. It states:
In this opinion we must decide whether the rule (1) permits the relation back of an amendment that adds — rather than merely substitutes — a defendant; (2) allows a plaintiff with a mistaken belief about the defendant's identity to amend her complaint regardless of whether she was on "inquiry notice" that her initial choice of whom to sue might be mistaken; (3) allows the period provided "for service of the summons and complaint" to be expanded by an order allowing service by publication; and (4) allows "notice of the institution of the action" to be imputed from an insurer to a permissive driver who is an insured by definition. We also address whether our interpretation of the rule comports with due process.
The second sentence of Civil Rule 15(c) provides that "[a]n amendment changing the party against whom a claim is asserted relates back" under stated conditions. (Emphasis added.) Stroud argues that Sellers cannot take advantage of this provision because she did not seek to "change" a party when she revised her complaint to name "Steph[a]n Kurdilla and/or Daniel Stroud" as the defendants; he argues that "change" can mean only "substitute," not "add." Stroud argues that the provision is intended only as a "name-correcting device" and cannot be used to add a new party once the statute of limitations has run.
An important purpose of Rule 15(c) is to ensure that a new party has fair notice of a cause of action within the time provided by the statute of limitations, "such that the party's rights will not be prejudiced."
Requiring a plaintiff to "substitute" rather than "add" a defendant gives the new party no additional protections;
Considering the policies underlying Rule 15(c), we conclude that adding a defendant is "changing the party against whom a
The district court dismissed Sellers's claim against Stroud as time-barred after finding that the letters in which State Farm identified Stroud as "Our Insured" "would have put [Sellers] on notice of a duty to investigate as to a possible second driver." The superior court did not address the issue of mistake, resolving Sellers's appeal on notice grounds instead; but Stroud argues in his response to Sellers's petition for review that Sellers made a conscious choice to sue only Kurdilla and that the district court's finding of inquiry notice supports this conclusion. We disagree.
We have interpreted Rule 15(c)(2) to require that "the party seeking to amend must have made a true mistake concerning the identity or name of the proper party."
We have held that there was no "true mistake" for purposes of Rule 15(c) when a plaintiff knew of someone's identity and role in a possible cause of action but deliberately chose to omit that person from the complaint. In Siemion v. Rumfelt, a minor driving his father's car ran into the plaintiffs' vehicle.
In contrast to the plaintiffs' deliberate choices about whom to sue in Siemion, the U.S. Supreme Court has noted that a plaintiff "might know that the prospective defendant exists but nonetheless harbor a misunderstanding about his status or role in the events" and "mistakenly choose to sue a different defendant based on that misimpression."
The district court in this case found only that Sellers was "on notice of a
In this case, Sellers sued Kurdilla because she believed he was the driver. She named him as the driver in the crash report and in her complaint. The district court's finding that Sellers was on notice to inquire into whether Stroud was the driver instead does not change the fact that she premised her complaint on a mistake about the driver's identity. Because Sellers made a "mistake concerning the identity of the proper party," we must resolve whether Rule 15(c)'s other requirements are satisfied.
Rule 15(c) requires that the notice and mistake elements be satisfied "within the period provided by Rule 4(j) for service of the summons and complaint." Rule 4(j), in turn, provides a 120-day time limit for service; if service has not been completed within that time, the clerk is required to "send notice to the plaintiff to show good cause in writing why service ... is not complete." "If the court finds good cause why service has not been made, the court shall establish a new deadline by which plaintiff must file proof of service or proof that plaintiff has made diligent efforts to serve."
The district court in this case did not decide whether Stroud had imputed notice of Sellers's lawsuit within the time allowed by Rule 4(j). The superior court did address the issue, holding that the period for service of the summons and complaint was 120 days because "[t]he trial court in this case did not find good cause" to extend the Rule 4(j) period; the court further held that since Kurdilla was served more than 120 days after Sellers filed her complaint, the necessary prerequisites to relation back under Rule 15(c) did not occur within the Rule 4(j) service period and notice could not be imputed
As explained below, we conclude that Stroud had imputed notice of the litigation well within 120 days of the filing of the complaint; nonetheless, we first explain why we disagree with the superior court's calculation of the applicable period for service. Contrary to Stroud's argument on appeal, West no longer defines the notice period for purposes of Rule 15(c). The rule was amended in 2005, after West was decided, to provide for notice "within the period provided by Rule 4(j) for service of the summons and complaint."
It is true, as the superior court observed, that the district court in this case did not make an explicit good cause finding in support of a new deadline under Rule 4(j). The district court did, however, authorize an extension of the service period. By authorizing service by publication, the district court required Sellers to publish notice "four times during four consecutive calendar weeks, once in each week."
This reading is consistent with West, in which we concluded that Rule 15(c)'s goal was "to liberalize the rules of pleading" to allow amendments otherwise barred by the statute of limitations as long as defendants were protected against the prosecution of stale claims.
In any event, we conclude that service of process on Kurdilla is not determinative in this case because State Farm, which insured both him and Stroud, had notice of the suit and of Sellers's alleged mistake much earlier. Kramer's affidavit of April 23, 2013, filed in support of a motion for costs related to a motion to compel, asserted that he had "been lead attorney in [this case] since its inception [on] January 4, 2012." An invoice Kramer's law firm sent State Farm, filed after trial in support of a motion for attorney's fees, reflected that on January 26, 2012, one of the firm's attorneys received a phone call from a State Farm representative, researched court records, and reviewed Sellers's complaint; the next day Kramer also reviewed the complaint, researched "statute of limitations issues" regarding "[redacted]," and spoke to the State Farm representative assigned to Sellers's insurance claim. The records show that over the next few weeks Kramer received State Farm's claim file and prepared to defend the claim. This evidence is more than sufficient for us to conclude that State Farm had notice of Sellers's suit and her alleged mistake within the time allowed for service on Kurdilla.
We next address whether State Farm's timely notice of the litigation may be fairly imputed to Stroud. For deciding whether amendments relate back under Rule 15(c) we have adopted the "identity of interest" doctrine, which imputes notice of litigation to a new defendant through timely notice to an original party.
In Phillips v. Gieringer the plaintiff was involved in a car accident with a driver who was insured under his father's State Farm policy.
Sellers argues that the issue of imputed notice in her case is governed by Phillips because in both cases the original defendant and the actual driver were represented by the same insurance company.
The superior court noted in Sellers's appeal that an identity of interest presumably existed between Stroud and State Farm, but that "[o]n appeal, Sellers abandoned her argument" and "focused entirely on an identity of interest between Stroud and Kurdilla." We review de novo whether a party has waived a claim on appeal.
Sellers's brief on appeal in the superior court argued that her case was "factually analogous" to Phillips. She explained that Phillips held that notice could be imputed to the driver "because both parties were represented by the same counsel and covered by the same insurance carrier." She then argued that notice could be imputed in her case because "both Kurdilla and Stroud were covered by State Farm" and were represented by the same attorney. We acknowledge that Sellers could have clarified her argument by stating that notice was imputed through State Farm, but we believe she adequately briefed her claim by identifying the relevant holding in Phillips and the corresponding circumstances in her own case. Our conclusion is bolstered by Stroud's response to Sellers's brief, in which he argued that "State Farm never had an identity of interest with Stroud such that notice of the suit against Kurdilla to State Farm should be imputed to Stroud."
Sellers's circumstances are very close to those in Phillips. Her complaint described the defendant as the driver but named the car owner; both the owner and the driver were covered by the same insurance policy; and the trial court granted leave to amend the complaint and add the driver but refused to allow the amendment to relate back. The only salient difference between the cases is that Stroud was a permissive driver under Kurdilla's insurance policy rather than a named insured. Stroud contends that "the only relationship between State Farm and Stroud is a contractual obligation to Kurdilla to defend any permissive driver" and that this difference from Phillips is determinative.
Stroud understates State Farm's obligation to him. Under AS 28.20.440(b)(2), motor vehicle liability insurance must "insure the person named and every other person using the vehicle with the express or implied permission of the named insured." Unnamed but permissive drivers "qualify as additional insureds when involved in an accident" and are entitled to "coverage ... against the claims of [an] injured party as if the permissive user was the named insured."
Stroud argues that imputing notice to a permissive driver is unfair because the insurance company does not have the same "contact information and an ongoing business relationship" with "a random driver," making it less likely that the insurer's actual notice will reach the insured. That consideration does not affect this case, where State Farm identified Stroud as "Our Insured" on January 11, 2010 — within days of the accident — and where the attorney State Farm hired spoke to Stroud by phone within the Rule 15(c) notice period.
Stroud next argues that we should not impute notice of the litigation to him through State Farm because his interests were adverse to the insurer's.
Stroud cites no authority in support of these arguments. As already noted, an auto insurer is required by statute to "insure the person named [in the policy] and every other person using the vehicle."
In short, Stroud has not shown that his interests were adverse to those of State Farm, nor has he rebutted the presumption from Phillips that he and his insurer share an identity of interest. State Farm's actual notice of the litigation in January 2012 is therefore imputed to Stroud.
Finally, Stroud argues that imputing notice to him through State Farm violates due process under the federal and Alaska constitutions.
It is true that the failure to provide a new party with adequate, timely notice of litigation "might raise a question of procedural
Procedural due process under Alaska's constitution "`requires notice and opportunity for hearing appropriate to the nature of the case.' Parties must have notice of the subject of proceedings that concern them `so that they will have a reasonable opportunity to be heard.'"
The only prejudice Stroud alleges is that more than two and a half years passed between the accident and Sellers's amendment adding him as a defendant. But we have already concluded that having received the same notice as Kurdilla, who was timely served, Stroud had fair notice of the litigation such that his rights will not be prejudiced. We therefore conclude that due process is satisfied.
Sellers's amended complaint relates back to the date she filed her original complaint. Accordingly, we REVERSE the dismissal of Sellers's claim against Stroud and REMAND to the superior court with instructions to remand to the district court for further proceedings.
But the mistake inquiry under Rule 15(c) asks whether the plaintiff made a mistake when she filed the original complaint. See, e.g., id. at 29 ("[K]nowledge acquired by a plaintiff after filing his original complaint is without weight in determining his state of mind at the time he filed the initial complaint and, thus, in determining whether a mistake concerning identity occurred."). Sellers filed her initial complaint on January 4, 2012; the phone call Kurdilla alleged to have made later and Stroud's affidavits filed later are irrelevant for Rule 15(c) purposes.
