RICHARD BENDER, Appellant, v. CLARK EQUIPMENT CO., Respondent
Bender v. Clark Equipment Co.
Young, Springer and Rose, JJ., concur.
RICHARD BENDER, Appellant, v. CLARK EQUIPMENT CO., Respondent.
RICHARD BENDER, Appellant, v. CLARK EQUIPMENT CO., Respondent.
No. 24126
June 27, 1995
897 P.2d 208
Donald Pope, Reno, for Appellant.
Wait & Shaffer, Reno, for Respondent.
OPINION
By the Court,
Shearing, J.:
This is an appeal from an order of the district court dismissing a complaint as time-barred by the statute of limitations.
On October 15, 1990, a forklift allegedly backed over appellant at work, crushing his left foot and leaving him without much feeling in his left hand. On October 13, 1992, two days before the two-year statute of limitations ran, see NRS 11.190(4)(e), appellant filed a complaint in district court. The complaint named Clark Manufacturing, Inc., as a defendant. Appellant alleged that Clark Manufacturing, Inc. had negligently and defectively manufactured a forklift without a backup warning device. No "Doe" defendants were named.
On October 21, 1992, appellant filed an amended complaint which named Clark Equipment Co. instead of Clark Manufacturing, Inc. as the defendant. On October 23 and 26, 1992, appellant filed second and third amended complaints. On November 2, 1992, the third amended complaint and an amended summons were served on Clark Equipment Co. Thereafter, the district court dismissed appellant's complaint as time-barred. Appellant contends that the district court erred in dismissing his complaint.
Until Nurenberger Hercules-Werke v. Virostek, 107 Nev. 873, 822 P.2d 1100 (1991), all situations involving the amending of a complaint to name a new party defendant after the statute of limitations had run were governed by a rule announced by this court in Servatius v. United Resort Hotels, 85 Nev. 371, 455 P.2d 621 (1969), and modified by later cases. The general rule of Servatius is: "While an amendment may be made to correct a mistake in the name of a party, a new party may not be brought into an action once the statute of limitations has run because such an amendment amounts to a new and independent cause of action." Servatius, 85 Nev. at 372-73, 455 P.2d at 622 (quotation omitted). Nevertheless, a defendant could be brought into an action even if the statute of limitations had run if the defendant: (1) had actual notice of the institution of the action; (2) knew it was the proper defendant in the action; and (3) was not misled to its prejudice. Id. at 373, 455 P.2d at 622-23.
In Nurenberger, this court concluded that Servatius had been misapplied to cases governed by NRCP 10(a), i.e. cases involving the utilization of fictitious defendants. Nurenberger, 107 Nev. at 877-78, 822 P.2d at 1103. Servatius remains applicable to cases where the plaintiff has not named "Doe" defendants. Id.
Nevertheless, Nurenberger notes that Servatius was an instance where, despite the plaintiff's failure to name the correct defendant before the running of the statute of limitations, this court crafted a rule that allowed for an amendment striking the wrong party defendant and correctly identifying a party defendant already before the court. Id. at 878, 822 P.2d at 1103. Nurenberger further notes that Servatius is "an opinion of limited application crafted to supply a basis for achieving equity and justice where the true defendant, although unnamed, had actual knowledge of the institution of the action, knew that it was the proper defendant, and was not in any way misled to its prejudice." Id. at 878, 822 P.2d at 1104. Similarly, in Nurenberger we "balanced the equities in favor of accountability and recompense over prejudice." Id. at 882, 822 P.2d at 1106.
Because the Servatius rule was crafted to achieve equity, its application need not be rigid. Appellant filed his complaint before the statute of limitations had expired. Although appellant named Clark Equipment Co. rather than Clark Manufacturing, Inc., he realized and corrected his mistake almost immediately. Appellant then served the summons and amended complaint on the correct party defendant within twenty days of filing the complaint, well within the 120 days allowed by NRCP 4(i). Respondent was therefore not prejudiced because, even if appellant had correctly named respondent in his original complaint of October 13, 1992, appellant nevertheless had until mid-February of 1993 to serve respondent. Respondent, however, received notice of the appellant's action on November 2, 1992.
Accordingly, we modify the Servatius rule to allow a plaintiff who has incorrectly named a party defendant in a timely filed complaint to amend that complaint to name the correct defendant so long as the correct defendant is served within the time provided by NRCP 4(i). We therefore reverse the order of the district court dismissing appellant's complaint, and we remand this case for further proceedings.
Young, Springer and Rose, JJ., concur.
NRCP 10(a) provides:
Every pleading shall contain a caption setting forth the name of the court and county, the title of the action, the file number, and a designation as in Rule 7(a). In the complaint the title of the action shall include the names of all the parties, but in the other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. A party whose name is not known may be designated by any name, and when his true name is discovered, the pleading may be amended accordingly.