Taito v. Owens Corning

Opinion

WOODS (Fred), J.

Plaintiff/employee filed a complaint against a third party for injuries sustained while in the course and scope of his employment. The workers’ compensation carrier for plaintiff’s employer later filed a complaint in intervention in plaintiff’s third party action. Plaintiff was subsequently permitted to file a complaint in intervention in his own third party action, but the court later struck plaintiff’s complaint in intervention. Plaintiff appeals from the order striking his complaint in intervention in his own third party action. We affirm.

Factual and Procedural Synopsis

On July 10, 1989, appellant filed a complaint for personal injuries against Owens Coming, John Doe and Does I to X. Appellant alleged that he was physically attacked and beaten by John Doe on January 28, 1989, on premises owned by Owens Coming. At the time of the incident, appellant was acting within the course and scope of his employment as a security guard for Wells Fargo Guard, and John Doe was acting within the course and scope of his employment as a truck driver for Owens Coming.

1

On May 29, 1990, the complaint was served on respondent Apex Bulk Commodities, Inc. (Apex), named as Doe I.

2

Apex answered the complaint on July 9, 1990. However, it was not until September 13, 1990, that the complaint was amended to name respondent Apex in place of Doe I. Apex filed a motion to dismiss on September 24, 1990, on the ground that

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appellant had failed to name and serve Apex within the one-year limitations period.

On February 14, 1991, the court dismissed the complaint as to Apex.

On September 25, 1990, CNA/Transportation Insurance Company (CNA) filed a notice of lien in the action, and on December 27, 1990, CNA filed a complaint in intervention against Owens Coming, John Doe and Does I to X, seeking reimbursement for workers’ compensation benefits paid to appellant.

On March 26, 1991, the court granted appellant’s ex parte petition for leave to file a complaint in intervention.