Diliberti v. Stage Call Corp.

Opinion

SILLS, P. J.

Attorneys frequently name the wrong individuals as defendants in lawsuits. No problem. When they ascertain who the true defendant should be, they simply amend their pleadings. Astonishingly, an attorney in this case filed suit naming the wrong person as the plaintiff.

Francine Diliberti and her sister Mary Jo Diliberti were involved in an automobile collision with a wayward wheel in November 1988. Francine was driving with Mary Jo in the front passenger seat. An automobile traveling in the opposite direction lost a wheel, which careened across a dirt

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medium strip into Francine’s vehicle. Fortunately, neither suffered life-threatening injuries; Francine was not injured at all, but Mary Jo was, and she retained an attorney to represent her. After an exchange of correspondence between the attorney and some claims adjusters, suit was filed in October 1989 naming Francine—not Mary Jo—as the plaintiff. Not only was the wrong sister named as the plaintiff, no mention was made of Mary Jo in the body of the complaint or even of the fact that there was a passenger in the car.

Over a year elapsed before the complaint was finally served in December 1990. Defendant Stage Call Corporation answered and requested medical records; the parties then apparently realized the wrong plaintiff had been named. By this time, of course, the statute of limitations had long since run; in fact, it expired over one year before the complaint was served. Mary Jo’s attorney filed a motion to amend and substitute Mary Jo for Francine as plaintiff. That motion was denied, and tills appeal ensued.

1

Not surprisingly, there is a dearth of statutory and decisional law on “wrong plaintiff” cases. Code of Civil Procedure section 473 allows “a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect” upon such terms as the court may deem just. The precise question we face here is whether a party may be substituted after the statute of limitations has expired. We would have no trouble permitting the substitution of Mary Jo for Francine if the body of the complaint sounded as a claim for a passenger. Changing the caption would be nothing more than correcting an obvious mistake in form. (See