GEORGETTE CAHILL v. KEYSTONE SERVICES, INC. D/B/A KENTUCKIANA NURSING SERVICE
Annotate this Case
Download PDF
RENDERED:
SEPTEMBER 8, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001855-MR
GEORGETTE CAHILL
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS KNOPF, JUDGE
ACTION NO. 98-CI-004091
v.
KEYSTONE SERVICES, INC. D/B/A
KENTUCKIANA NURSING SERVICE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM AND MILLER, JUDGES.
BARBER, JUDGE: This is an appeal of a dismissal of an amended
complaint adding a party as a defendant to the action.
We
affirm.
Appellant Georgette Cahill (Cahill), a nursing home
resident, was injured by Declondia White, a nursing aide at the
Parkway Extended Care Center.
27, 1997.
assault.
The assault took place on October
The aide pleaded guilty to second degree criminal
Cahill sued Parkway Extended Care for her injuries in
July, 1998.
In September, Parkway provided information in
discovery responses showing that Appellee Keystone Services, Inc.
d/b/a Kentuckiana Nursing (Kentuckiana), an agency which provides
temporary employees, had provided the nursing aide to Parkway.
Cahill filed a motion to amend the complaint on October 27, 1998.
The amended complaint was filed of record on November 3, 1998.
Kentuckiana moved to dismiss the amended complaint
against it, arguing that it was barred by the applicable statute
of limitations.
KRS 413.140 provides a one year statute of
limitations for this action.
granted the motion to dismiss.
On May 20, 1999, the trial court
Cahill argues that this dismissal
was improper, and that the amended complaint should relate back
to the date of the original filing.
A one year statute of
limitations in this action would have run on October 27, 1998,
the date the motion to amend the complaint was filed.
The
amended complaint was attached thereto, and was served upon
Parkway.
The record does not show any service to Kentuckiana of
the motion to amend the complaint, or the amended complaint
itself.
An action commences in this Commonwealth by “the filing
of a complaint with the court and the issuance of a summons or
warning order thereon in good faith.”
CR 3; Delong v. Delong,
Ky., 335 S.W.2d 895 (1960).
CR 15.03 holds that:
(1) Whenever the claim or defense asserted in
the amended pleading 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.
(2) An amendment changing a party against
whom a claim is asserted relates back if the
condition of paragraph (1) is satisfied, and
-2-
within the period provided for by law for
commencing the action against him, the party
to be brought in by amendment(a) has received
such notice of the institution of the action
that he will not be prejudiced in maintaining
his defense on the merits, and (b) knew or
should have known that, but for a mistake
concerning the identity of the proper party,
the action would have been brought against
him.
Actual, formal notice to a party who would have been named in the
original action, but for a mistake, is not required, where that
party knew or should have known of the mistake.
Nolph v. Scott,
Ky., 725 S.W.2d 860 (1987).
On December 7, 1997, counsel for Cahill contacted
Kentuckiana regarding Cahill’s claim against Parkway and
Kentuckiana for failing to protect her from the criminal conduct
of White.
White is identified in this letter as an employee of
Kentuckiana. This letter advised Kentuckiana to contact its
insurance carrier.
The initial lawsuit was timely filed, but
failed to name Kentuckiana as a party defendant.
Kentuckiana is
mentioned in the initial complaint, and identified as an agent
for providing personnel for assistant medical positions at
Parkway’s facility.
White is identified as an employee and/or
agent of Kentuckiana and Parkway.
In the amended complaint,
filed November 3, 1998, the negligence claim against Parkway is
amended to include a negligence claim against Kentuckiana.
The trial court found that the claim against
Kentuckiana was time-barred, as Cahill had known of the identity
of Kentuckiana since the filing of the initial complaint, but had
failed to name Kentuckiana as a party-defendant.
The trial court
held that the only mistake sufficient to permit relation back of
-3-
the amended complaint was “inadvertence due to mistaken identity
or misnomer or mislabeling.”
The trial court held that the
present case did not fit within these facts, and that for this
reason, the motion to dismiss should be granted.
Cahill cites two cases in which a necessary party was
added to an action after the identity of the omitted party was
established during discovery.
In Underhill v. Stephenson, Ky.,
756 S.W.2d 459 (1988), a medical negligence action was filed
against a physician.
When the identity of a nurse who might have
been liable for the plaintiff’s injuries was discovered during a
deposition, the plaintiff was permitted to add her as a party
defendant even though the initial one year limitations period had
passed.
In Clark v. Young, Ky. App., 692 S.W.2d 285 (1985), an
injured plaintiff sued the commercial carrier and driver, but
discovered as the suit progressed that the company leasing the
vehicle should also have been named a party defendant.
The court
permitted him to amend his complaint, and bring in the lease
company as a defendant, holding that the amended complaint
related back to the time of the filing of the original complaint.
The court held that:
It is obvious that Young, as a Robintech
employee, could not reasonably have been
expected to know that Mercer leased the
driver and equipment from Clark . . .
Obviously Clark knew that he was a proper
defendant and that Young was mistaken or
without knowledge of his presence in the
operation.
Id. at 288.
-4-
Cahill argues that a ninety-four year old woman in ill
health could not have been expected to know that the employee
working at Parkway, who injured her, was actually an employee of
Kentuckiana.
However, the initiating pleading shows that Cahill
did have that information at the time the complaint was filed.
Where there is no mistake as to the identity of the defendant, an
amended complaint is not properly held to relate back.
Pelphrey
v. Cochran, Ky., 454 S.W.2d 675 (1970).
In the present case, the record shows that the intent
of Cahill was to determine the involvement of Kentuckiana in the
injury to the plaintiff.
Cahill asserts that this involvement
did not become certain until she received responses to discovery
requests in late September, 1998.
This case received extensive
media coverage, and the relationship between Parkway and
Kentuckiana appears to have been ongoing and of long standing.
Under the circumstances, Kentuckiana cannot deny knowledge of the
suit within the statutory period as required by CR 15.03(2)(b).
As the action has been underway for several years, however, with
only Parkway as a named defendant, there may be prejudice to
Kentuckiana if it is forced to appear and defend at this stage of
the proceedings.
Discovery appears to be complete, and a
tentative trial date (which has already passed) was set by the
trial court.
Where a party would be prejudiced by an amendment
to the complaint, such amendment should not be permitted.
Here, the record does not show that there was a
mistake made by Cahill in failing to add Kentuckiana as a named
party to the appeal, such that relation back should be permitted.
-5-
The identity of Kentuckiana was long known, and any decision
regarding its status was one of legal strategy.
Under such
circumstances, relation back of the complaint cannot be
permitted.
We affirm the dismissal of Cahill’s claims against
Kentuckiana.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jeffrey D. Stamper
Louisville, Kentucky
Rod D. Payne
Louisville, Kentucky
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
