Jeri Vincent v. CNA Insurance ( 2002 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 20, 2002 Session
JERI VINCENT v. CNA INSURANCE COMPANY
Appeal from the Circuit Court for Williamson County
No. 11-01410 Russ Heldman, Judge
No. M2001-02213-COA-R9-CV - Filed December 23, 2002
After being injured in an auto accident, Jeri Vincent entered into negotiations with CNA Insurance
Company, the insurer of the driver of the other vehicle, attempting to settle her property damage and
personal injury claim. The property damage claim was settled. Ms. Vincent filed a civil action
against CNA Insurance to protect her personal injury claim from the statute of limitations. Later,
Ms. Vincent filed a motion to substitute a party pursuant to Tenn. R. Civ. P. 15.03 in order to name
the driver of the other vehicle as the defendant. The trial court denied the motion and dismissed the
cause of action. We reverse and remand the decision of the trial court because we find that Ms.
Vincent complied with the requirements of Tenn. R. Civ. P. 15.03.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court
Reversed and Remanded
PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and HAMILTON V. GAYDEN , JR., SP . J., joined.
Keith Jordan, Nashville, Tennessee, for the appellant, Jeri Vincent.
Nancy Williams Phillips, Nashville, Tennessee, for the appellee, CNA Insurance Company.
OPINION
On January 16, 1999, Jeri Vincent was injured in a two car motor vehicle accident when her
car was struck by an automobile driven by Donna F. Gibson. Ms. Gibson was insured by CNA
Insurance Company (“CNA”).1
1
At the time the lawsuit was filed, the correct name for the insurance company was Continental Insurance
Compa ny. Since the lawsuit has been filed, the name of the company has changed to Encompass Insurance. Both parties
refer to the insurance company as CNA at the trial court level and on appeal and, in order to maintain consistency, we
will also.
Ms. Vincent had no further contact with Ms. Gibson after the collision. Ms. Vincent was
contacted by an adjuster for CNA, who expressed regret for the accident, accepted financial
responsibility for her damages, and paid for the repair costs to her Nissan Altima. Ms. Vincent was
treated for what was initially thought to be a soft tissue injury, but eventually discovered she had a
ruptured cervical disc; she intended to settle her personal injury claim directly with the insurance
carrier without litigation or legal representation.
In December 1999, Ms. Vincent was informed by CNA adjuster Robert Webb that she
needed to file an action before January 16, 2000, in order to keep her claim alive. On January 14,
2000, Ms. Vincent filed a pro se civil action in Williamson County General Sessions Court which
listed CNA as the defendant. The civil action was brought for “protection of the statute of one year
for bodily injury and/or personal injury sustained as a result of a mva on 1-16-99.” It also stated that
“further evaluation of injuries are in process.”
CNA was served on February 3, 2000. Ms. Vincent spoke with Julie Salyers, a litigation
specialist independently contracted by the insurance company, about her claim. On or about
February 21, 2000, Ms. Gibson was informed of the lawsuit filed by Ms. Vincent against CNA by
Warren Tucker, a CNA claims representative.
On June 4, 2001, CNA filed a motion to dismiss or in the alternative to set for trial. Upon
receipt of that motion, Ms. Vincent hired counsel. The action was transferred to the Williamson
County Circuit Court by agreement of the parties.
On July 25, 2001, Ms. Vincent filed a motion to substitute a party by changing the named
defendant to Ms. Gibson rather than CNA. The motion to amend was denied by the trial court,
which based its holding on Smith v. Southeastern Properties, Ltd., 776 S.W.2d 106 (Tenn. Ct. App.
1999). The trial court stated:
This case [Smith] also contains the following language: ‘in the context of litigation
neither an insurance company nor persons employed by it are agents of the
uninsured.’2 Id. at 110. Accordingly, statements made to Plaintiff [Jeri Vincent] by
the adjuster will not sustain the relation back of Plaintiff’s claim against the alleged
tortfeasor, Donna F. Gibson, under T.R.C.P. 15.03. This result on its face may
appear grossly inequitable to Plaintiff since it is undisputed that in January 1999 the
adjuster for Defendant ‘assured [her] that his employer was accepting financial
responsibility for the injuries caused by the negligence of its insured, Donna F.
Gibson.’ Therefore, the Court grants Plaintiff permission to take a T.R.A.P. 9 appeal
of this order to the Tennessee Court of Appeals, Rule 9(a)(2) criteria being
applicable.
2
The word “uninsured” appearing in the ord er is simp ly a misstatement, and the trial clearly m eant “insured.”
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This court subsequently entered an order that granted Ms. Vincent’s Tenn. R. App. P. Rule
9 application, limiting the issue on appeal to whether or not the trial court erred in denying Ms.
Vincent’s motion to substitute a party and staying any further trial court proceedings.
Generally, a review of a denial to amend pleadings is governed by the abuse of discretion
standard of review. Henderson v. Bush Bros. & Co., 868 S.W.2d 236, 237-38 (Tenn. 1993).
Reversal is appropriate where the trial court applies an incorrect legal standard or reaches a decision
that causes an injustice to the party complaining. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.
2001); Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996).
I. Relation Back of Amendments
Ms. Vincent attempted to change defendants in the lawsuit she filed against CNA and argues
that the relation-back provisions of Tenn. R. Civ. P. 15.03 should apply to save her claim against Ms.
Gibson from the statute of limitations. The relevant section provides:
Whenever the claim or defense asserted in amended pleadings arose out of the
conduct, transaction, or occurrence set forth or attempted to be set forth in the
original pleading, the amendment relates back to the date of the original pleading.
An amendment changing the party or the naming of the party by or against whom a
claim is asserted relates back if the foregoing provision is satisfied and if, within the
period provided by law for commencing an action or within 120 days after
commencement of the action, the party to be brought in by amendment (1) has
received such notice of the institution of the action that the party will not be
prejudiced in maintaining a defense on the merits, and (2) knew or should have
known that, but for a mistake concerning the identity of the proper party, the action
would have been brought against the party.
Tenn. R. Civ. P. 15.03.
Ms. Vincent’s attempted amendment herein is covered by the second sentence of Tenn. R.
Civ. P. 15.03. “Changing” a party includes adding, dropping or substituting a party. 6A CHARLES
A. WRIGHT , ET AL., FEDERAL PRACTICE & PROCEDURE § 1498 (2d ed. 1990). When the amendment
seeks to change a party to the lawsuit, the claim asserted by or against that new party will be
considered filed on the date of the original pleading when the requirements of the rule are met.
Doyle v. Frost, 49 S.W.3d 853, 856 (Tenn. 2001).
“The goal behind Rule 15, as with all the Rules of Civil Procedure, is ‘to insure that cases
and controversies be determined upon their merits and not upon legal technicalities or procedural
niceties.’” Doyle, 49 S.W.3d at 856 (quoting Karash v. Pigott, 530 S.W. 775, 777 (Tenn. 1975)).
Thus, Tenn. R. Civ. P. 15.03 is construed liberally in order to promote the consideration of claims
on their merits. Floyd v. Rentrop, 675 S.W.2d 165, 168 (Tenn. 1984); Townes v. Sunbeam Oster
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Co., Inc., 50 S.W.3d 446, 451 (Tenn. Ct. App. 2001); McCracken v. Brentwood United Methodist
Church, 958 S.W.2d 792, 797 (Tenn. Ct. App. 1997).
The principal purpose of Rule 15.03 is “to enable a plaintiff to correct a pleading error after
the statute of limitations has run if the correction will not prejudice his adversary in any way.”
Doyle, 49 S.W.3d at 856-57 (quoting Schiavone v. Fortune, 477 U.S. 21, 38, 106 S. Ct. 2379, 2389
(1986) (Stevens, J. dissenting)).
Ms. Vincent’s amendment will relate back to the date she originally filed the lawsuit if: (1)
the claim arose out of the same conduct, transaction, or occurrence as that of the original complaint;
(2) notice was received by Ms. Gibson either within the statute of limitations or one hundred twenty
(120) days thereafter; (3) Ms. Gibson is not prejudiced in maintaining a defense by the delay in
naming her; and (4) Ms. Gibson either knew or should have known she would have been sued had
it not been for the mistake.
There is no dispute that the claim or defense to be asserted by Ms. Vincent in the amended
pleadings arises out of the same occurrence, the automobile accident, as that of the original civil
warrant she filed in General Sessions Court in January of 1999. The question is whether the other
requirements are met.
II. Sufficiency of Notice under Tenn. R. Civ. P. 15.03
Under Tenn. R. Civ. P. 15.03, the party to be added must be given notice of the lawsuit
within the statute of limitations or within 120 days after commencement of the lawsuit. Notice in
the context of Tenn. R. Civ. P. 15.03 means notice of the lawsuit, not notice of the underlying injury
suffered by the plaintiff. Smith, 776 S.W.2d at 109; McCracken, 958 S.W.2d at 798. Notice may
be formal or informal, and does not require service of the complaint upon the party affected by the
amendment. McCracken, 958 S.W.2d at 797.
Unofficial, informal notice that a lawsuit has been filed coupled with knowledge of
the facts on which the lawsuit is based may suffice as long as the rule’s other
requirements are satisfied.
Id. at 798.
The trial court herein based its decision on Smith v. Southeastern Properties, Ltd., 776
S.W.2d 106 (Tenn. Ct. App. 1999). In Smith, the plaintiff attempted to establish notice of a lawsuit,
contrary to the sworn affidavits of the parties to be added that they were unaware of the claim until
after the applicable time limit, by imputing notice based on a alleged agency relationship. The
lawsuit involved the death of a young boy in an apartment swimming pool. The amendment at issue
sought to add the limited partnership which was the owner of the apartment complex at the time of
the incident and its general and limited partners. The insurer of the entity named in the original
complaint had hired an independent insurance adjuster to investigate the boy’s death. He sent a copy
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of the plaintiff’s notice letter to the insurer and to its attorney. He identified the insured as the
partnership which was the subject of the later amendment. However, the adjuster/investigator never
had contact with the partnership entity. There was no evidence that the parties to be added had hired
the adjuster or the attorney or that they even knew either of them. The plaintiff argued that notice
of the lawsuit to the insurer of the original defendant should have been imputed to the general
partnership and its parties. This court disagreed, stating “While we find no case law on this point
from Tennessee, it has been held that in the context of litigation neither an insurance company nor
persons employed by it are agents of the insured.” Smith, 776 S.W.2d at 110 (citing Attleboro Mfg.
Co. v. Frankfort Marine, Accident & Plate Glass Ins. Co., 240 F. 573, 581-82 (1st Cir. 1917)).
The Smith opinion continues to stand for the proposition that notice to the party to be added
cannot be imputed simply from notice to the party’s insurance company. McCracken, 958 S.W.2d
at 797. However, there is an important distinction between Smith and this case. In Smith, the
adjuster for the insurance company had no contact whatsoever with the party to be added by the
amendment, and there was no proof that the party’s insurer had provided notice to the party. The
plaintiff in Smith did not allege the parties to be added had actual knowledge or notice of the original
lawsuit and attempted to rely on the knowledge of one or more alleged “agents.” Herein, CNA
concedes that Warren Tucker, its agent, informed Ms. Gibson of the lawsuit brought by Ms. Vincent
on February 21, 2000, only thirty-five (35) days after Ms. Vincent filed her action. Thus, it is
undisputed that Ms. Gibson received actual notice of the lawsuit, and questions of imputing notice
through agency are not present.3
In McCracken, this court held that a phone call from a reporter to a church’s senior pastor
satisfied the notice requirements of Tenn. R. Civ. P. 15.03. In that case, the plaintiffs had originally
mistakenly sued the church foundation and attempted to amend by adding the church itself. After
concluding that notice to the senior pastor was notice to the church, the court found the following
important in deciding the sufficiency of the notice:
The senior pastor conceded that he was aware that Ms. McCracken had fallen at the
church, and he specifically recalled that the newspaper reporter asked questions
relating to the newly filed lawsuit. Even though the telephone call was not in writing,
it provided the senior pastor with actual notice that the McCrackens had filed a
lawsuit against the church seeking damages for the injuries stemming from Ms.
McCracken’s fall.
3
W e note that the court in Sm ith did not hold that notice can never be imputed. The plaintiff relied on the
knowledge of one or more “agents.” One of those alleged agents was the attorney who had been counsel of record for
the original defendant entity as well as present counsel for the partnership plaintiff sought to add. The co urt did not ho ld
that know ledge by a party’s attorn ey cou ld not be impu ted. Instead, it held that the record showed that the first
appearance by the attorney at issue was made two months after the statute of limitations (then the deadline for notice)
ran and, thus, the facts d id not demonstrate that the requirements of the rule had been met. 776 S.W.2d at 110. Federal
courts have held that constru ctive or impu ted no tice will suffice. Singletary v. Penn sylvania D ep’t of Co rr., 266 F.3d
186, 195 -96 (3d Cir. 2001).
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McCracken, 958 S.W.2d at 797-98. Federal courts have similarly held informal notice is sufficient.
First, Rule 15(c)(3) notice does not require actual service of process on the party
sought to be added; notice may be deemed to have occurred when a party who has
some reason to expect his potential involvement as a defendant hears of the
commencement of litigation through some informal means. See Varlack v. SWC
Caribbean, Inc., 550 F.2d 171, 175 (3d Cir. 1977) (holding that a person who the
plaintiff sought to add as a defendant had adequate notice under 15(c)(3) when,
within the relevant period, the person by happenstance saw a copy of the complaint
naming both the place where he worked and an “unknown employee” as a defendant,
which he knew referred to him); see also Berndt v. Tennessee, 796 F.2d 879, 884 (6th
Cir. 1986) (notice need not be formal); Eakins v. Reed, 710 F.2d 184, 187-88 (4th
Cir. 1983) (same); Kirk v. Cronvich, 629 F.2d 404, 407-08 (5th Cir. 1980) (same).
At the same time, the notice received must be more than notice of the event that gave
rise to the cause of action; it must be notice that the plaintiff has instituted the action.
See Bechtel v. Robinson, 886 F.2d 644, 652 n.12 (3d Cir. 1989).
Singletary v. Pennsylvania Dep’t of Corr., 266 F.3d 186, 195 (3d Cir. 2001).
If a telephone call from a reporter unrelated to either the plaintiff or the defendant is
sufficient to provide notice, certainly a telephone call from an insurance company which has been
handling the claim to its insured is also sufficient. The type of notice required is “fair notice that a
legal claim existed in, and was in effect being asserted by” plaintiff. Smith, 776 S.W.2d at 109
(citing Williams v. United States, 405 F.2d 234, 236-38 (5th Cir. 1968)).
CNA maintains that the notice did not meet the time requirements in Tenn. R. Civ. P. 15.03.
The argument is that Ms. Gibson did not receive notice before the expiration of the statute of
limitations and that the amendment was not filed within 120 days of the filing of the complaint.
While both those statements are factually correct, we cannot agree that either disqualifies the
proffered amendment from relating back to the original complaint.
The language of Tenn. R. Civ. P. 15.03 is clear as to the time requirement placed on notice
to the party to be added: “within the period provided by law for commencing an action or within 120
days after commencement of the action.” The provision allowing notice within 120 days of the filing
of the action was added to the language of Tenn. R. Civ. P. 15.03 in 1995 to incorporate “language
similar to that adopted in the federal version to change the unfortunate result of decisions such as
Schiavone v. Fortune, 477 U.S. 21, 106 S. Ct. 2379 (1986).” Tenn. R. Civ. P. 15.03 Advisory
Commission Comment (1995). Prior to the 1995 amendment, a party seeking to amend a pleading
to change a party was required to prove notice was had by the party to be added prior to the
expiration of the statute of limitations. The 1995 amendment obviously changed that result, as was
intended. We note that in Doyle, the Tennessee Supreme Court found sufficient notice that was
given 118 days after the filing of the complaint, where the complaint had been filed only five days
before the statute of limitations period expired.
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CNA’s second argument regarding timeliness is that Rule 15.03 requires that the “relation
back amendment be requested no more than 120 days after the commencement of the action.” That
proposition appears nowhere in the language of the rule. To the contrary, the 120 days clearly refers
to notice to the party to be brought in by amendment.4
Thus, we find that Ms. Gibson had actual notice of the lawsuit filed by Ms. Vincent within
the time provided by the rule. Timely notice is not all that is required, however, because Tenn. R.
Civ. P. 15.03 requires that the party to be added receive such notice that he or she will not be
prejudiced in maintaining a defense on the merits. As to that requirement, this court stated in
McCracken:
The church was not prejudiced in defending against the suit because it knew about
Ms. McCracken’s fall as soon as it happened. It also knew that its insurer had been
negotiating a settlement with the McCrackens’ lawyer for quite some time. Finally,
the church knew that the McCrackens were looking to the church for damages and
. . . that the McCrackens’ lawyer had mistakenly named the foundation as a defendant
rather than the church.
McCracken, 958 S.W.2d at 798.
Similar facts in the case before us compel the conclusion that Ms. Gibson would not be
prejudiced in this case. Ms. Gibson was well aware of the accident at the time it happened. CNA
had already settled the property damage portion of Ms. Vincent’s claim, apparently admitting
liability for its insured, Ms. Gibson, and had been in active negotiations regarding the personal injury
claim. In fact, it seems that the only portion of the claim which was not successfully negotiated
before the statute of limitations ran was the amount of personal injury damages sustained by Ms.
Vincent. It remains undisputed, as the trial court found, that an adjuster from CNA “assured [Ms.
Vincent] that his employer was accepting financial responsibility for the injuries caused by the
negligence of its insured, Donna F. Gibson.” It appears that CNA undertook to represent Ms.
Gibson’s interest with regard to the claim by Ms. Vincent.
4
CNA has no t raised herein the issue of whether the amendment was filed so late that it should not be allowed.
It is important to note that Tenn. R. Civ. P. 15.03 contains no time limitation for seeking amendment to a pleading. Tenn.
R. Civ. P. 15.01, however, allows a party to amend the pleadings: (1) once as a matter of course at any time before a
responsive plead ing is served; and (2) within 15 days after a ple ading is served if the pleading is one to which no
responsive pleading is permitted and the action has not been set for trial. Otherwise, a party may am end a pleading o nly
by written consent of the adverse party or by leave of the court, which “shall be freely given as justice so req uires.”
Tenn. R. Civ. P. 15.01. In this case, M s. Vinc ent sought to amend her complaint and substitute parties nearly eighteen
months after the filing of her complaint. However, because a motion to dismiss is not a responsive pleading, the filing
of a pre-answer motion to dismiss by CNA did not cut off Ms. Vincent’s right to amend her com plaint once as a matter
of course. See Adams v. Carter County Mem. Hosp., 548 S.W.2d 307 , 309 (Te nn. 197 7); McBurney v. Aldrich, 816
S.W.2d 30, 33 (T enn. Ct. App. 1991). Further, we no te that CNA has no t argued that the delay p rejud iced M s. Gibson’s
defense. Additionally, CNA’s motion to dismiss was filed almost seventeen months after the lawsuit was initiated.
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The record indicates that CNA appeared through its attorney in the trial court to oppose the
motion to amend by substituting parties. CNA has filed a brief in this appeal for the same purpose.
Since CNA has undertaken to represent Ms. Gibson’s interests in this matter, CNA would have a
difficult time in claiming, and in fact does not attempt to claim, that its defense of the personal injury
claim has been prejudiced. In addition, CNA makes no assertion on appeal that Ms. Gibson would
be prejudiced in defending Ms. Vincent’s claim because of some deficiency in the notice or timing
thereof that she received. Merely having to defend the lawsuit does not constitute prejudice so as
to preclude the relation back of an amendment adding a party. See Osborne Enters. v. City of
Chattanooga, 561 S.W.2d 160, 164 (Tenn. Ct. App. 1977).
We conclude that Ms. Vincent has met the requirements of Tenn. R. Civ. P. 15.03 regarding
notice to the party to be added with regard to time, sufficiency, and lack of prejudice.
III. Knowledge and Mistake
The final requirement is that the party to be brought into the lawsuit by amendment “knew
or should have known that, but for a mistake concerning the identity of the proper party, the action
would have been brought against the party.” Tenn. R. Civ. P. 15.03. This requirement has not been
frequently discussed, as a separate requirement, by courts of this state. In fact, our courts have often
stated that notice is the critical element in determining whether amendments relate back to the
original pleadings. Floyd, 675 S.W. 2d at 168; Smith, 776 S.W.2d at 109.
The concepts, however, are not unrelated. The requirements of notice and knowledge
together seek to prevent the situation where “a person who has had no reason to know that he or she
is expected to respond to a claim will be brought into a suit” after the time limitations in the rule.
Tenn. R. Civ. P. 15.03 Advisory Committee Comments. The objective of these and other
requirements of the rule is to avoid the application of the statute of limitations when no prejudice
would result to the party sought to be added by the amendment. 6A CHARLES A. WRIGHT , ET AL.,
FEDERAL PRACTICE & PROCEDURE § 1499.
Both requirements are often analyzed together as in McCracken, discussed above, and in
Floyd v. Rentrop, 675 S.W.2d 165 (Tenn. 1984). In Floyd, the plaintiffs originally sued Dr. Reisser,
believing he was the lead surgeon performing the operation at issue, but later sued Dr. Rentrop,
based on various records indicating he performed the surgery, and nonsuited the claim against Dr.
Reisser. Later, the plaintiffs attempted to amend their amended complaint to add Dr. Reisser, having
learned that Dr. Reisser in fact was the lead surgeon. After finding that Dr. Reisser had notice within
the required time period, the Supreme Court found:
He and Dr. Rentrop have been represented by the same counsel in the case. Under
such circumstances, he would not be prejudiced in maintaining his defense on the
merits and he knew, or should have know that, but for mistake concerning the
identity of the proper party, the action would not have been dismissed as to him and
instituted against his partner, who he knew did not perform the surgery . . . . As to
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his knowledge of the action instituted against Dr. Rentrop, such knowledge will be
imputed to him since it is conceded that Dr. Reisser and Dr. Rentrop are partners.
Floyd, 675 S.W.2d at 168.
Although not specifically labeled as such, these comments implicate another principle often
applied to determine if an amendment should relate back: identity of interest. 6A CHARLES A.
WRIGHT , ET AL., FEDERAL PRACTICE & PROCEDURE § 1499. Under the Federal Rules of Civil
Procedure which have the same requirements for an amendment to relate back, federal courts have
held that if a sufficient identity of interest exists between the new defendant and the original one so
that relation back would not be prejudicial, then relation back is proper.5 Woods v. Indiana Univ.-
Purdue at Indianapolis, 996 F.2d 880, 889 (7th Cir. 1993); Serrano v. Gonzalez, 909 F.2d 8, 12 (1st
Cir. 1990). The original defendant and the defendant sought to be added have an identity of interest
when they are so closely related in business or other activities that it is fair to presume the added
parties learned of the institution of the action shortly after it was commenced. Wilson v. United
States, 23 F.3d 559, 563 (1st Cir. 1994) (quoting Hernandez Jimenez v. Calero Toledo, 604 F.2d 99,
102-03 (1st Cir. 1979)); Serrano, 909 F.2d at 12. This identity of interest inquiry is relevant to both
the sufficiency of notice, and particularly the prejudice therefrom, and the knowledge that the added
party was omitted due to a mistake.
With regard to the requirement that the party to be added knew or should have known that,
but for a mistake, the action would have been brought against him, “the courts probably will apply
something akin to a reasonableness test . . . . Relation back will be refused only if the court finds
that there is no reason why the party to be added should have understood that he was not named due
to a mistake.” 6A CHARLES A. WRIGHT , ET AL., FEDERAL PRACTICE & PROCEDURE § 1498. The test
has been described as whether the omitted defendants, viewed as reasonably prudent people, ought
to have been able to anticipate or should have expected that the character of the originally pleaded
claim might be called into question. Dorsey v. St. Joseph Co. Jail Officials, 910 F. Supp. 1343, 1349
(N.D. Ind. 1996), rev’d on other grounds, 98 F.3d 1527 (7th Cir. 1996) (reversing the grant of
summary judgment to defendants because of a dispute of material facts regarding the incident).
In order for an amendment adding parties to relate back, a plaintiff must show that the failure
to name the defendants sought to be added by amendment resulted from a mistake concerning the
identity of the proper party. Tenn. R. Civ. P. 15.03. “A ‘mistake’ within the meaning of this rule
does not exist merely because a party who may be liable for conduct alleged in the original complaint
was omitted as a party defendant.” Smith, 776 S.W.2d at 109 (citing Jenkins v. Carruth, 583 F.
Supp. 613, 616 (E.D. Tenn. 1982)). However, “mistake” must mean more than a mere mislabeling
of the proper party, because the notice and knowledge requirements of the second sentence of Tenn.
5
Tenn. R. Civ. P. 15.03 has been construed by Tennesse e cou rts consistently with fed eral interpretation of Fed.
R. Civ. P . 15(c ). See, e.g., Chapman v. King, 572 S.W.2d 925 (T enn. 1978); Karash v. Piggott, 530 S.W .2d 775 (T enn.
1975); Gamble v. Hospital Corp. of Am., 676 S.W.2d 340 (Tenn. Ct. App. 1984); 6A C HARLES A. W R IG H T , E T A L .,
F ED ERA L P RACTICE & P ROCEDURE § 1498.
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R. Civ. P. 15.03 do not apply to attempts to simply correct the mislabeling of a party. Grantham v.
Jackson-Madison County Gen. Hosp. Dist., 954 S.W.2d 36, 37-38 (Tenn. 1997).
A mistake includes a mistake of law as well as a mistake of fact. Soto v. Brooklyn Corr.
Facility, 80 F.3d 34, 36 (2d Cir. 1996); Woods, 996 F.2d at 887.
This phrasing of the ‘mistake’ criterion was introduced in the 1966 amendment to
Rule 15. According to the Advisory Committee Note accompanying the 1966
amendment, the language was prompted by several cases in which plaintiffs, unaware
of the technical requirements of the law, mistakenly named institutional instead of
individual defendants . . . . In these cases, plaintiffs, who were required by statute to
sue the Secretary of Health, Education and Welfare, ‘had mistakenly named as
defendants the United States, the Department of HEW, and the Federal Security
Administration (a nonexistent agency). . . .’ Fed. R. Civ. P. 15 advisory committee
note (1966 amendment). The amendment was expressly intended to preserve
legitimate suits despite such mistakes of law at the pleading stage.
Soto, 80 F.3d at 36 (some citations omitted).
Federal courts have found the mistake requirement satisfied where a pro se plaintiff has sued
a defendant who could not be liable under the law, most often in 42 U.S.C. § 1983 actions where the
plaintiff originally named a governmental entity and later sought to add individual officials or
employees. Soto, 80 F.3d at 36-37; Serrano, 909 F.2d at 14-15.
The mistake made herein by Ms. Vincent, acting pro se, was that she sued the insurance
company with whom she had been dealing and who had paid part of her claim, instead of the insured
driver of the car that hit her. Ms. Vincent’s brief filing, the general sessions warrant, contains
enough information to make it clear that she was suing for injuries received in the motor vehicle
accident. Ms. Vincent mistakenly failed to name the party alleged to have caused the injury, the
proper party in a negligence action. Nonetheless, Ms. Gibson was driving the vehicle which ran into
Ms. Vincent. Ms. Gibson was fully aware of the accident and her part in it. CNA knew or should
have known that the proper defendant was its insured, Ms. Gibson, and that Ms. Gibson was not
named originally only through a mistake.
CNA’s course of conduct herein has established an identity of interest between itself and its
insured with regard to Ms. Vincent’s claim and resulting lawsuit. While a number of situations may
arise where the insured and the insurer do not have the same interest, or in fact may have antagonistic
interests, such is not the case before us. Not only did CNA undertake to negotiate and partially settle
Ms. Vincent’s claim, assuring her it would be financially responsible, it also undertook before the
courts to represent Ms. Gibson’s interests in opposing the amendment. If Ms. Gibson is not added,
the dismissal of the lawsuit will stand, and CNA will face no further liability. Thus, it has an interest
in preventing the substitution of Ms. Gibson. We find this situation to demonstrate a sufficiently
identical interest to justify the relation back of the amendment.
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IV. Conclusion
Applying the legal standards explained above, we conclude that Ms. Vincent met the
requirements Tenn. R. Civ. P. 15.03. Consequently, we reverse the judgment of the trial court. The
proposed amendment adding Ms. Gibson is allowed and relates back to the date of the original
pleading. The costs of the appeal are taxed to the appellee, CNA, for which execution may issue if
necessary.
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PATRICIA J. COTTRELL, JUDGE
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