Is Suing the Defendant’s Insurer Misnomer or Misjoinder?
January 5, 2023
In a recent Virginia case, a plaintiff filed his lawsuit styled as follows:
MET LIFE PROPERTY AND CASUALTY INSURANCE CO.
In the body of the complaint, plaintiff alleged that Met Life Property and Casualty Insurance Co. insured Luis Gonzales. Met Life retained counsel to file a motion to dismiss with prejudice, asserting the plaintiff sued the insurance company as opposed to the tortfeasor driver.
Under Virginia law, “A misnomer is a mistake in name, not the identification of a party.” Hampton v. Meyer, 299 Va. 121, 128, 847 S.E.2d 287 (2020). The court elaborated, “In other words, a misnomer occurs where the proper party to the underlying action has been identified but incorrectly named.” Id.
A misjoinder is “when the person or entity identified by the pleading was not the person by or against whom the action could be, or was intended to be, brought.” Estate of James v. Peyton, 277 Va. 443, 452, 674 S.E.2d 864 (2009). In James, the court elaborated that “the key distinction between misnomer and misjoinder is whether the incorrectly named party in the pleadings is, in fact, the correct party who has been sufficiently identified in the pleadings.” Estate of James, 277 Va. at 455.
Pursuant to Virginia Code §8.01-5, naming a tortfeasor’s insurance company is clearly not a proper party to the litigation. So, in naming Met Life Property and Casualty Insurance Co., is that a matter of misnomer or misjoinder? On May 6, 2022, in the matter of Jordan v. Met Life Property and Casualty Insurance Company, the judge opined that naming the insurance company instead of the tortfeasor was a misjoinder, not misnomer. In this specific case, the statute of limitations had run. Therefore, dismissal with prejudice was appropriate.
In the Hampton case, the applicable police report identified the tortfeasor driver incorrectly by naming the owner and father of the automobile. When it came to light that the actual driver of the vehicle was the owner’s son with the same last name, the Supreme Court held that misnomer had occurred because the plaintiff had relied in good faith on the accuracy of the police report and sued the person whom they believed to be the driver of the automobile, but used the wrong name.
However, with respect to the style above for the case filed against Met Life Property and Casualty Insurance Co., clearly Met Life is not a tortfeasor driver but is an insurance company who insured an individual whose car was involved in an automobile accident. It is clear in this situation that the plaintiff sued only the insurance company and failed to name any tortfeasor driver. By naming Met Life Property and Casualty Insurance Co., plaintiff incorrectly sued a party which is defined as misjoinder, and dismissal of the matter is the appropriate remedy.
In summary, under Virginia law, “a misnomer is a mistake in the name, not the identification of a party” and a misnomer occurs where the proper party to the underlying action has been identified, but incorrectly named. This is distinctly different than misjoinder. A misjoinder occurs when the proper person or entity identified is not the person or entity against whom the action could be, or is intended to be, brought. Misnomer will toll the statute of limitations. Misjoinder in the complaint against an incorrect party does not toll the statute of limitations.