AMENDED RULE ON MISTAKEN IDENTITY SAVES PERSONAL-INJURY COMPLAINT

July 28, 2004

Steven P. Garmisa
Hoey & Farina Attorney
garmisa@hoeyfarina.com
1-888-425-1212

In the first published decision applying a recent amendment to the statute governing the relation-back doctrine for complaints that initially named the wrong defendant, the Illinois Appellate Court reversed a ruling that dismissed a personal-injury claim.

Although the right defendant was not served until after the statute of limitations expired, an amended complaint was timely because it was served on the right defendant within the period permitted for service under the Illinois Supreme Court Rules. Fassero v. Turigliatto, 2004 WL 1260102 (4th Dist., June 4).

Close to the two-year deadline for filing a personal-injury claim, Connie Fassero filed a complaint against Thomas Turigliatto, alleging he was the other driver in a two-car accident.

It turns out that Turigliatto was simply the owner of the other vehicle. The driver was actually his brother, Todd Turigliatto. And there were no allegations in Fassero's complaint that the owner of the other vehicle was negligent. Instead, the complaint merely alleged negligence by the other driver.

Thomas and Todd Turigliatto lived together with their mother, and Thomas was tagged by substitute service on his mother.

Todd heard about the complaint the day it was served on Thomas. Then a week later -- after the statute of limitations expired -- Todd was served with an amended complaint that named him as the proper defendant.

The trial judge denied leave to amend, and granted Thomas' motion to dismiss, reasoning that Fassero could have sorted things out -- before drafting the complaint -- by simply reading the police report.

Applying the amended version of 2-616 of the Code of Civil Procedure, the Appellate Court reversed. Here are some highlights of Justice Thomas R. Appleton's opinion (with various omissions not noted in the quoted text):

"A central issue in this case is whether the relation-back doctrine applies. If this is a case of a misnomer, the relation-back doctrine applies, and the amended complaint naming the proper defendant is considered filed upon the filing date of the original complaint. Service upon the misnamed defendant after the statute of limitations has expired does not bar the suit.

"If this is a case of mistaken identity, the relation-back doctrine does not apply unless the factors set forth in section 2-616(d) are satisfied. If the factors are not satisfied, plaintiff is required to have sued the proper defendant within the applicable statute of limitations.

"Misnomer applies in those cases where the proper party or real party in interest is sued under the wrong name. A misnomer occurs where the plaintiff brings an action and serves summons upon the party intended to be made the defendant, thus giving actual notice of the lawsuit to the real party in interest, but the process and complaint do not refer to the person by his correct name.

"The misnomer rule is a narrow one and applies only where a plaintiff brings an action and a summons is served upon a party intended to be made a defendant.

"In contrast, mistaken identity is when the wrong party is sued. A case of mistaken identity is governed by section 2-616(d) of the Civil Code of Procedure, which provides: 'A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (1) the time prescribed or limited had not expired when the original action was commenced; (2) the person, within the time that the action might have been brought or the right asserted against him or her plus the time for service permitted under Supreme Court Rule 103(b), received such notice of the commencement of the action that the person will not be prejudiced in maintaining a defense on the merits and knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him or her; and (3) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading ... even though the person was not named originally as a defendant. For the purpose of preserving the cause of action under those conditions, an amendment adding the person as a defendant relates back to the date of the filing of the original pleading so amended.'
"We first note that Public Act 92-116, effective Jan. 1, 2002, changed this statutory section. Although there is a plethora of case law interpreting the older version of section 2-616(d), no published opinions apply to the amended version.

"Whether a particular case involves misnomer or mistaken identity depends on the intent of the plaintiff. However, this determination is not controlled by the plaintiff's subjective intention of whom he intended to sue but, rather, by the objective manifestations of that intent as contained in the record. The most probative evidence of whom the plaintiff intended to sue is the party named in the complaint. If the named party in fact exists but is not a real party in interest, a court can conclude that the plaintiff has mistakenly sued the wrong party.

"We will not reverse the trial court's determination unless the court abused its discretion."

Appleton and his colleagues concluded that this was "a case of mistaken identity, not misnomer. Here, the real party in interest, Todd, was not originally sued or served. This was not a case where the correct party's name was wrong but a case where plaintiff was mistaken as to the correct party's identity. Thomas' mother gave Thomas the documents upon his arrival at home. She did not give the documents to Todd. Although Thomas showed the documents to Todd on the day Thomas was served, there was no evidence that Thomas, Todd or their mother assumed the wrong party was sued. It was reasonable for them to assume (without reading the complaint) that Thomas was the intended defendant as the owner of the vehicle.

"Any well-written complaint will describe the acts that led to the plaintiff's injury. Therefore, if such drafting manifested an intent to sue the person who committed those acts, the misnomer rule would apply in every case. The allegations in plaintiff's complaint were directed at the conduct of the driver of the vehicle, but the complaint named someone else as defendant. This is the very essence of mistaken identity. Because plaintiff simply sued the wrong person, the misnomer rule does not apply.

"Plaintiff's complaint alleged the driver of the Turigliatto vehicle committed several violations, which ultimately harmed her. Nowhere in the complaint does she allege the owner of the vehicle violated his duty of care to her. For these reasons, we find this case is one of mistaken identity."

"Because we have determined this is a case of mistaken identity, not misnomer, we turn to the statute to determine whether plaintiff's amended complaint against Todd relates back to the date of filing of her original complaint for purposes of the statute of limitations. In doing so, we look to the factors set forth in section 2-616(d) of the Code of Civil Procedure.

"If plaintiff is able to satisfy the factors, then her amended complaint assumes the filing date of her original complaint and her cause of action may be pursued against Todd despite the expiration of the statute of limitations.

"The statutory factors are as follows: (1) whether the statute of limitations had not expired when the original action was commenced; (2) whether the person, within the time that the action might have been brought or the rights asserted against him or her plus the time for service permitted under Supreme Court Rule 103(b), received such notice of the commencement of the action that the person will not be prejudiced in maintaining a defense on the merits and knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him or her; and (3) whether it appears that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading.

"First, the statute of limitations had not expired when the original action was commenced. The accident occurred on April 7, 2001. The original complaint was filed on March 31, 2003, approximately one week prior to the expiration of the applicable statute of limitations. Although we do not condone plaintiff's final-hour filing, her original action was nevertheless timely filed.

"Second, we determine that Todd had notice of the lawsuit and knew or should have known that, but for plaintiff's misidentification, it was he who should have been sued. We find his knowledge of the suit on the day Thomas was served effectively defeats any claim that he would be prejudiced by being expected to assert a defense on the merits at this late date.

"Previously, section 2-616(d) required knowledge of the action and service of summons upon the intended party within the time prescribed by statute. The Jan. 1, 2002, amendment eliminated the service requirement and specified only that the real party in interest receive notice of the action within the time permitted under Rule 103(b).

"The purpose of Rule 103(b) is to allow service of a defendant after the statute of limitations has expired if the plaintiff can show that he or she exercised due diligence in obtaining service. Thus, we find that this second factor requires that the true defendant has received notice, and the plaintiff is required to show that he received that notice within the time that would have been excusable for service upon that person pursuant to Rule 103(b).

"The record indicates that Thomas was served on April 8, 2003, one day after the statute of limitations expired and one week after the filing of plaintiff's complaint. The record further indicates that Todd received notice of the suit on April 8, 2003. The question then is, Would notification on April 8, 2003, be considered acceptable under Rule 103(b)? Did plaintiff exercise due diligence in serving Thomas? We note that the date of service on Thomas is only relevant to this inquiry because it happens to be the same date that Todd was notified of the action.

"We find the one-week time lapse between the date of filing the complaint and service upon Thomas was sufficient to comply with Rule 103(b).

"One of the purposes of Rule 103(b) is to protect defendants from stale claims, thereby affording defendants a fair opportunity to investigate the circumstances while witnesses and facts are accessible. In light of the purpose of Rule 103(b) and the facts of this case, a one-week delay cannot be found to demonstrate that plaintiff did not make a diligent effort in serving defendant.

"Thomas said he showed Todd the summons and complaint on April 8, 2003. It therefore follows that a reading of plaintiff's complaint would demonstrate to Todd that he was the one that should have been named in the suit, not Thomas. Todd was aware, or should have been aware, of the nature of the action after seeing plaintiff's complaint and therefore would not be prejudiced in maintaining a defense on the merits.

"The third and final factor is easily resolved. The amended pleading sets forth a cause of action that grew out of the same transaction or occurrence as that set forth in the original pleading. Plaintiff's amended complaint alleges the driver of the Turigliatto vehicle (Todd) was negligent, caused an accident on April 7, 2001, and proximately caused her injuries. It was this very accident that was the subject of the original complaint filed against Thomas, the misidentified driver of the Turigliatto vehicle. The same set of facts is set forth in plaintiff's original and amended complaints.

"In its amendment of section 2-616(d), the legislature specifically dispensed with the service requirement, thus relaxing the burden on the plaintiff by requiring only proof of notice within the limitations period. We find the statutory factors of section 2-616(d) have been met, and plaintiff should be allowed to pursue her action as set forth in her amended complaint against Todd, the real party in interest.

"Our holding here is not only consistent with the statutory language and previous case law, but it is also supported by the long-standing premise that controversies should be resolved on their merits and not upon mere technicalities."

Back to Trial Notebook Main page