Feher v. Vicknair ( 2013 )

 appellant must show that he exercised reasonable diligence in
ascertaining the true identity of the intended defendants. Respondent
asserts that since appellant knew respondent's name and the potential
claims against him at the time of the filing of the original complaint, based
on the accident report prepared by law enforcement, appellant did not
exercise reasonable diligence and his claims do not relate back. Appellant
counters that contention, arguing that the accident report identified
respondent, but attributed sole fault to Ms. Delarosa-Perez, and therefore,
appellant had no basis to believe that he had viable claims against
respondent at the time he filed his initial complaint. The district court
granted partial summary judgment as to appellant's claims against
respondent, which the district court properly certified as final under
NRCP 54(b), and this appeal followed.
This court reviews summary judgments de novo. Wood v.
Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary
judgment is appropriate if the pleadings and other evidence on file, viewed
in the light most favorable to the nonmoving party, demonstrate that no
genuine issue of material fact remains in dispute and that the moving
party is entitled to judgment as a matter of law. Id. Having considered
the parties' arguments and the district court record, we conclude that the
district court erred in granting partial summary judgment as to
appellant's claims against respondent.
The district court stated in its order granting partial summary
judgment that the accident report "clearly provided notice to [appellant] of
potential culpability for the accident on the part of [respondent]."
Although the accident report did identify appellant, respondent, and Ms.
Delarosa-Perez as the drivers of the three vehicles damaged in the
accident, the accident report specifically noted that Ms. Delarosa-Perez
SUPREME COURT
OF
NEVADA
2
(0) 1947A
was at fault for the accident and did not indicate that respondent was at
fault. Viewing the evidence in the light most favorable to appellant,
appellant has demonstrated that a genuine issue of material fact remains
in dispute regarding whether appellant was aware of any potential claims
against respondent at the time he filed his initial complaint, and thus, the
district court erred in granting partial summary judgment to respondent.
Wood, 121 Nev. at 729, 121 P.3d at 1029.
The record shows that appellant properly named doe
defendants in his complaint pursuant to NRCP 10(a) and promptly sought
leave of the district court to amend his complaint to add respondent as a
defendant after Ms. Delarosa-Perez filed her third-party complaint against
respondent. Nurenberger Hercules-Werke GMBH v. Virostek, 107 Nev.
873, 881-82, 822 P.2d 1100, 1105-06 (1991). As respondent failed to show
that no issues of material fact remain regarding whether appellant
exercised reasonable diligence, summary judgment was not appropriate.
Wood, 121 Nev. at 729, 121 P.3d at 1029. Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
J.
J.
Saitta
SUPREME COURT
OF
NEVADA
3
(0) I947A
cc: Chief Judge, The Eighth Judicial District Court
Hon. Jack B. Ames, Senior Judge
Paul H. Schofield, Settlement Judge
George T. Bochanis, Ltd.
Law Offices of Katherine M. Barker
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
4
(0) 1947A