The Misnomer Statute and Relation Back of a Complaint
August 5, 2020
In Sparks v. Lucas, 2018 Va. Cir., LEXIS 43 (March 23, 2018), the Plaintiff alleged she was injured when she was rear-ended by a vehicle driven by Eddy Lucas on April 4, 2014. Plaintiff stated that the Defendant did not have an insurance card, but that he was insured by Allstate under the policy issued to his mother, Rosalba Vasquez. Plaintiff was not aware of Mr. Lucas’ correct name at the time. Plaintiff, through counsel, filed suit four days before the statute of limitations expired naming Jose Vasquez as the Defendant. This initial lawsuit was not served and was nonsuited in October of 2016. Allstate did not become aware of the Complaint until May 24, 2016.
Plaintiff, pro se, filed a new complaint on April 11, 2017, now naming “Jose Vasquez, AKA John Doe” as the Defendant. This suit was also not served. On May 5, 2017, after hiring new counsel, Plaintiff amended the lawsuit on May 12, 2017, naming Eddy Lucas as the Defendant.
The amended complaint was served on Lucas on June 8, 2017. There was no evidence to suggest that Lucas was aware of this lawsuit prior to being served with the amended complaint. Defendant, through counsel, filed a Plea in Bar on June 27, 2017, alleging that the lawsuit violated the two-year statute of limitations pursuant to Virginia Code § 8.01-243.
Defendant argued that the first complaint that actually named Eddy Lucas as the Defendant was filed on May 5, 2017, far beyond two years after April 4, 2014. Plaintiff argued that the amended complaint relates back pursuant to Virginia Code § 8.01-6, the misnomer statute, which reads:
“A misnomer in any pleading may, on the motion of any party, and on affidavit of the right name, be amended by inserting the right name. An amendment changing the party against whom a claim is asserted, whether to correct a misnomer or otherwise, relates back to the date of the original pleading if (i) the claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading, (ii) within the limitations period prescribed for commencing the action against the party to be brought in by the amendment, that party or its agent received notice of the institution of the action, (iii) that party will not be prejudiced in maintaining a defense on the merits, and (iv) that party knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against that party.”
The Court agreed that the first two lawsuits were indeed misnomers, that is, the Court found that the Plaintiff sued the right person in the wrong name. However, the Court found that the amended complaint did not relate back because criteria (ii) of 8.01-6 was not satisfied. That is, there was no evidence that Mr. Lucas was aware of the suit during the two-year limitation period, i.e. by April 4, 2016. To the contrary, there was evidence presented that the Defendant never gave a false name and gave the correct name of his mother, the policy holder. Furthermore, Plaintiff could have easily deciphered the Defendant’s correct name by reaching out to Allstate; the proper insurance carrier that Plaintiff was indeed aware of.
Plaintiff stated that at the scene of the accident, Lucas told her his name was Jose Vasquez and that he did not have identification or an insurance card. At depositions, Lucas testified that he in fact did have identification and that he had no idea who Jose Vasquez was or where the Plaintiff got that name.
Therefore, the Court sustained the Plea in Bar and Plaintiff’s amended complaint was dismissed with prejudice. The lesson to be learned is a simple one; due diligence to discover the actual name of the Defendant should be conducted and initiating pleadings should be quickly filed. This case makes evident that a seemingly curable mistake could result in finality of an otherwise valid claim.