The Supreme Court of Virginia, by a 4-3 margin, has agreed with plaintiffs’ lawyers that a lawsuit targeting the alleged negligence of a driver could be revived after nonsuit even though the plaintiff initially named the car’s owner and not the driver.
The decision saves the claim of a passenger injured in a three-vehicle Richmond car crash. The plaintiff’s legal team had been misled by a police report that listed one of the car’s owners as the driver.
The suit alleging negligent driving against that owner was afflicted by a misnomer, not a misjoinder of parties, the Supreme Court majority ruled, allowing the case to survive after refiling to name the proper defendant. That result was urged by an amicus brief filed on behalf of the Virginia Trial Lawyers Association.
Three justices objected, saying the initial lawsuit incorrectly sued the wrong person and the second suit should be barred by the statute of limitations.
The Aug. 27 opinion is Hampton v. Meyer (VLW 020-6-057). Justice William C. Mims wrote for the majority, with Justice D. Arthur Kelsey leading the dissenters.
Nonsuit and refile
On Christmas Eve 2016, the driver of a Chevrolet Suburban allegedly ran a red light outside a Richmond shopping mall and caused a collision involving three vehicles, the majority opinion summarized. Calvin Hampton was a passenger in one of those vehicles and was taken to a hospital for his injuries.
Hampton sued nearly two years later, naming Michael Meyer as the negligent driver. Five weeks after filing suit, Hampton’s lawyer was advised by the insurer that it was son Noah, not father Michael, who was driving the Suburban when the accident occurred.
Hampton nonsuited and refiled, naming Noah Meyer as defendant. The new complaint cited the 2016 Virginia Supreme Court case of Richmond v. Volk (VLW 016-6-004) to bolster its claim that the use of the wrong name in the earlier complaint was merely a misnomer.
Noah filed a plea in bar, contending the action was time barred. Richmond Circuit Judge Beverly W. Snukals agreed with Noah and dismissed the second lawsuit.
Proper defendant ‘readily apparent’
Representing Hampton on appeal, Juli M. Porto of Fairfax said the allegations of the complaint describing a negligent driver made it clear who the defendant was, regardless of what the defendants and their insurers knew.
“If it’s readily apparently to them – to anyone – who the correct defendant is, then that is a misnomer,” Porto said in oral argument on June 16. “We are not bringing in a new party,” she argued. “We’re simply correcting the name of that party.”
Defense counsel Henry S. Carter of Richmond argued the error might have been caught through “due diligence” of the plaintiff’s counsel in examining birthdates of the people involved. Mims suggested in oral argument that such an assumption demanded too much of a diligent plaintiff’s attorney.
In an amicus brief, the Virginia Trial Lawyers Association said the defendant was proposing an unfair bright-line test based on whether a “real person” was sued.
“As a practical matter, the VTLA respectfully submits that any name listed in the complaint will probably belong to one or more people because there are approximately 7.8 billion people in the world,” wrote Ashley T. Davis of Richmond for the VTLA.
The four-justice majority concluded the use of the incorrect name was a misnomer “because the complaint, read as a whole, contained sufficient allegations to identify the proper party defendant even though the incorrect name had been used.”
“Hampton sued the correct person – the driver – but used the wrong name, the one shown in the incorrect police report. Thus, there is no mistake of parties, only one of name. That is a misnomer,” Mims wrote for the court majority.
A different result would punish Hampton for reliance on the Volk opinion, the majority said. “Such an outcome would be unjust,” Mims wrote.
Mims was joined by Justices S. Bernard Goodwyn, Cleo E. Powell, and Stephen R. McCullough in reversing the dismissal of the claim and remanding for further proceedings.
Kelsey was joined in dissent by Chief Justice Donald W. Lemons and Justice Teresa M. Chafin. Kelsey’s analysis focused on the name used, not the role described.
“The owner in this case was not the right person incorrectly named. He was the wrong person correctly named. The mis was not in the nomer. It was in the person correctly named but incorrectly sued,” Kelsey wrote.
Acknowledging the significance of precedent in the case at bar, Kelsey nonetheless rejected the weight attributed to the Volk opinion.
“What I do not accept is that the stare decisis tailwind of Volk compels us to hold that a plaintiff commits a mere misnomer when he sues a vehicle owner instead of its driver in a personal injury suit arising from a vehicle accident,” Kelsey wrote.
Kelsey mocked the notion that, if the target of litigation somehow learns of the misjoinder mistake, the mistake is transformed into a misnomer.
Porto – who argued the plaintiff’s case before the justices – said the decision makes it easier for litigants to rely on court’s prior rulings.
“If the Supreme Court is switching what it says every few years, there’s no way we can make informed decisions and advise our clients,” Porto said.