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Misnomer or Misjoinder?

October 16, 2020

By Jason C. Greaves

The Virginia Supreme Court blurs the difference, excusing plaintiffs from naming the wrong party.

Misnomer and misjoinder are frequently confused terms, but the Virginia Supreme Court, in its recent decision of Hampton v. Meyer, has confused them further to the benefit of plaintiffs. 847 S.E.2d 287 (2020).

The traditional understanding of misnomer, under Virginia law, is “when the right person is incorrectly named, not where the wrong person is named.”  Rickets v. Strange, 293 Va. 101, 110-11 (2017) (emphasis added); see also Rockwell v. Allman, 211 Va. 560 (1971) (“A misnomer is a mistake in name, but not person”).  The classic example of a misnomer would be the misspelling of a defendant’s name or suing a business’s trade name, rather than its legal entity name.  See e.g., Jacobson v. Southern Biscuit Co., 198 Va. 813 (1957); Baldwin v. Norton Hotel, Inc., 163 Va. 76 (1934).  Misnomers in Virginia are easily fixed by requesting an amendment of the pleadings, with the amendment relating back to the original filing date.  Va. Code § 8.01-6.  Additionally, under the recent holding of Richmond v. Volk, a plaintiff may fix a misnomer by taking a nonsuit and refiling the action with the corrected name.  291 Va. 60 (2016).  Therefore, a misnomer is generally not a fatal flaw, so long as the defendant was aware of the lawsuit within the statute of limitations.

Conversely, misjoinder is when the wrong person is named, and it can be a fatal error because there is no tolling of the statute of limitations.  See Ricketts, 293 Va. at 111.  This was true, even where the correct defendant was aware of the mistake.  See Estate of James v. Peyton, 277 Va. 443 (2009); Miller v. Highland County, 274 Va. 355 (2007); Swann v. Marks, 252 Va. 181 (1996).

In Hampton, the Plaintiff incorrectly named the owner, rather than the driver of an automobile in a personal injury action.  Previously, this would have been a fatal misjoinder, except that the Virginia Supreme Court in Hampton overturned the trial court, holding that Plaintiff’s mistake was actually a misnomer.

In Hampton, the Plaintiff was injured in a car accident.  The police report incorrectly identified the owner of the vehicle, Michael Meyer (“Michael”), as its driver.  The actual driver was Michael’s son, Noah Meyer.  A few weeks before the 2-year statute of limitations would have run, the Plaintiff filed a personal injury action against Michael.  A few weeks after the statute of limitations had expired, the Plaintiff learned that Noah was the driver, and nonsuited the case.[1]  Plaintiff refiled the action against Noah, claiming that it was a misnomer, under the authority of Richmond v. Volk.

The majority agreed with the Plaintiff and its opinion—in a 4-3 decision—relied almost exclusively on the Richmond v. Volk case, broadening the meaning of a misnomer.  Under the majority’s holding, a plaintiff can name any person or entity, so long as the Complaint makes sufficient allegations that only the true, intended defendant could fit the Complaint’s description, and so long as that intended defendant had knowledge of the Complaint.   The Court reasoned that because the “entirety of the Complaint” identifies the “driver” of the vehicle, and because Noah knew that he was the driver, this was more akin to a misspelling than the naming of an incorrect party.

The dissenting opinion by Justice Kelsey (also author of the Richmond v. Volk dissent) cites to a long series of misnomer and misjoinder cases.  Justice Kelsey makes a straight-forward argument that the scenario presented in Hampton is a classic misjoinder: the wrong person was named.  The dissent points out the far-reaching implications of turning a misjoinder into a misnomer, simply because the intended defendant happens to learn of the mistake.  The dissent uses the example of naming Honda as a defendant for a defective Camry, which would become a fixable misnomer if Toyota happened to read the Complaint.

As Justice Kelsey stated in the opening of his dissent of Richmond v. Volk:

The nonsuit statute, Code § 8.01-380, goes a long way toward inoculating plaintiffs (but not defendants) from many of the adverse consequences associated with missing filing deadlines or violating other procedural rules governing litigation.  Our cases have interpreted the statute to do just that.  As a result, the nonsuit has become “a powerful tactical weapon” found only “in the arsenal of a plaintiff.”

291 Va. at 68.

To plaintiff’s arsenal, we can now add Hampton’s expanded definition of misnomer and the ability to toll the statute of limitations, no matter what name or entity plaintiff happens to identify in a complaint.

[1] It is noteworthy that the opinion includes the following: “The insurer had not provided this information earlier, despite communicating with Hampton” on two prior occasions.  It seems that perceived unfairness or withholding by the insurance company may have played a role in the Court’s decision.