Practice Points with Mark Scruggs: Suing the Wrong Defendant

One of the most common errors we see at Lawyers Mutual is the failure to sue the right defendant before the statute of limitations expires. Usually, we see this problem in the context of a claim against a corporate defendant. It sometimes arises when the individual defendant has died say between the date of the accident and the filing of the lawsuit. By the time plaintiff’s counsel finds out the individual defendant has died, the statute of limitations has expired. The plaintiff is forced to amend the complaint to add the defendant’s estate as a party defendant.

The law in North Carolina is unforgiving. When one is forced to amend a complaint to add a new party, the amendment will not relate back to the filing date of the original complaint. If the statute of limitations has expired, the action will be subject to dismissal as to the new party. Crossman v. Moore, 341 N.C. 185, 459 S.E.2d 715 (1995). (A notable exception to this rule is where the plaintiff amends the complaint to correct a misnomer, e.g., correcting a mistake in the name of the defendant where the correct defendant received notice of the lawsuit. See, e.g., Liss v. Seamark Foods, 147 N.C. App. 281, 555 S.E.2d 365 (2001).)

Here are my top five recommendations to avoid this potential problem:

1. File the lawsuit well before the statute of limitations. (You knew I was going to say that didn’t you?) File early enough that you can hopefully ferret out any problems with your choice of defendant and correct it before the statute of limitations expires.
2. When you file early, send discovery with the complaint – interrogatories and request for admissions - designed to uncover any defense that you sued the wrong defendant.
3. If you file on the eve of the statute of limitations and you draw a motion to dismiss based on the contention that you’ve sued the wrong defendant, initiate discovery immediately – interrogatories, request for production, depositions – to test the defendant’s contention. You may be able to show that the incorrect defendant and the right defendant are so intertwined that the right defendant, in fact, got notice of the lawsuit. Do not wait until the motion to dismiss is on for hearing. That’s too late. If you initiate discovery right away after receiving the motion to dismiss, the court will likely give you an opportunity to conduct enough discovery to hopefully defend against the motion to dismiss.
4. In the “dead defendant” scenario I alluded to above, my only suggestion is to think about doing whatever you can well ahead of the statute of limitations to determine if your intended defendant has died. (You might be surprised how often this happens!) If so, and if an estate is open, you can sue the estate within the statute of limitations. If there is no estate open, you can get one open and file your lawsuit against the estate before the statute of limitations runs. Amending the complaint to add the defendant’s estate after the statute of limitations expires is problematic because an estate is a new party and the amendment will not relate back to the initial filing date.
5. My final recommendation is to call Lawyers Mutual immediately upon receiving notice that you may have sued the wrong defendant. We have experience helping our insureds fix these problems, but you cannot wait until the eve of the hearing on the defendant’s motion to dismiss. We need time to help you do some of the things outlined above to try to save your case.