DAVID B. WHITAKER v. J. McINTYRE MACHINERY, LTD.
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RENDERED: July 16, 2004, 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001429-MR
DAVID B. WHITAKER
v.
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE DANIEL J. VENTERS, JUDGE
ACTION NO. 00-CI-00797
J. McINTYRE MACHINERY, LTD.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI MCANULTY AND MINTON, JUDGES.
GUIDUGLI, JUDGE.
David B. Whitaker (hereinafter “Whitaker”)
appeals from an order of the Pulaski Circuit Court granting J.
McIntyre Machinery, Ltd.’s (hereinafter “McIntyre Machinery”)
motion to dismiss his products liability action on the basis of
the running of the applicable statute of limitations.
We
affirm.
On August 24, 1999, Whitaker was injured at his
employer’s place of business, Somerset Scrap Metal Company,
Somerset, Kentucky.
He was injured on a machine which was used
to chop scrap metal into smaller pieces for packaging and
shipping.
He suffered severe injuries when his hand came into
contact with the cutting blades of the chop machine.
He was
taken to Lake Cumberland, L.L.C., d/b/a Lake Cumberland Regional
Hospital (hereinafter “Lake Cumberland Hospital”) and then
transported to Jewish Hospital in Louisville, Kentucky, for
surgery.
On August 2, 2000, Whitaker filed a complaint against
Somerset Scrap Metal Company, Lake Cumberland Hospital, the
“Unknown Manufacturer” of the machine and the “Unknown M.D.” who
initially treated his injuries in the emergency room.
On the
same day he attempted constructive service on the “Unknown
Manufacturer” through the Secretary of State of Kentucky and by
appointment of a warning order attorney.
On November 14, 2000,
a newly appointed warning order attorney filed his report
pursuant to CR 4.07(1) which states, in relevant part:
Comes now the undersigned, David Austin
Tapp, for his report of warning order and
states:
On the 4th day of October, 2000, he was
appointed Warning Order Attorney for
defendant Unknown Manufacturer. On October
11, 2000, a telephone call was made to the
Hon. Tara Beckwith’s office, attorney for
the Defendant, Somerset Scrap Metal Company.
A message left with secretary, requesting an
(sic) Ms. Beckwith contact my office.
Permission to visit Somerset Scrap Metal
Company and look at the piece of equipment
was requested. On October 24, 2000, after
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having no response from the previous
telephone call, another telephone call was
made to the Hon. Tara Beckwith. During this
conversation Ms. Beckwith informed my office
of an intent to file a motion to dismiss.
She agreed to contact her client regarding
my request and to call my office by the end
of the week. On October 30, 2000, after not
receiving a return telephone call another
telephone call was made to Ms. Beckwith’s
office and a message was left requesting the
opportunity to visit Somerset Scrap Metal
Company and view the piece of equipment. On
October 31, 2000, a return telephone call
was received from the Hon. John Harrison.
Permission was granted to visit Somerset
Scrap Metal Company and view the piece of
equipment. On November 13, 2000, a visit to
Somerset Scrap Metal Company was made and
the following information was taken from a
plate attached to the machine:
J. McIntyre Machinery, LTD,
Nottingham, England, TEL:
01159780781, FAX: 01159422357,
Model 320 Shear, Rating 220 440
V60HZ, Serial No. 1754 1996 (A?),
2500 PSI, 660KGS.
Two pictures were also taken of the machine
and its information plate, attached as
Exhibit A. A copy was made of the
distributors catalog showing the equipment,
attached as Exhibit B, and information on
the supplier, Exhibit C.
Based on the foregoing, it is the
opinion of this attorney that defendant
Unknown Manufacturer has not been notified
of the nature and pendency of this action.
On December 19, 2000, Whitaker moved for leave of
court to file an amended complaint.
That motion was granted and
on January 11, 2001, he filed his first amended complaint in
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which he identified McIntyre Machinery as the manufacturer of
the product at issue.
Eventually, on April 30, 2002, McIntyre
Machinery was properly served.1
On May 21, 2002, McIntyre
Machinery filed an amended answer to the amended complaint.
According to the record, nothing additional was filed until
March 25, 2003, at which time McIntyre Machinery filed a motion
to dismiss with a supporting memorandum arguing that Whitaker’s
complaint was barred based upon the one year statute of
limitations set forth in KRS 413.140.
Following a hearing on
May 16, 2003, the circuit court granted McIntyre Machinery’s
motion and on June 6, 2003, dismissed Whitaker’s claims against
the manufacturer.
This appeal followed.
In its order dismissing Whitaker’s claims against
McIntyre Machinery, the circuit court relied upon CR 15.03 and
Nolph v. Scott, Ky., 725 S.W.2d 860 (1987).
CR 15.03 dealing
with relation back of amendments of pleading states, in relevant
part:
(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 the party
against whom a claim is asserted relates
back if the condition of paragraph (1) is
1
McIntyre Machinery initially raised the issue that service did not comply
with the requirements of the Hague Convention. Whitaker finally complied
with the international service requirements on his third attempt.
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satisfied and, within the period provided 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.
In Nolph, the Supreme Court of Kentucky addressed a
situation very similar to the one before this Court and
interpreted CR 15.03 and the need for a defendant to receive
notice of a claim within the time frame permitted by the statute
of limitations in the following manner:
Scott contends the amended complaint
relates back to the earlier filing date
because Nolph received constructive notice
of the lawsuit. We disagree. Constructive
service on unknown defendants through
appointment of a warning order attorney is
not sufficient notice for the purposes of CR
15.03.
The warning order rules provide for
constructive service on a person unknown to
the plaintiff. CR 4.50, 4.06, 4.07. While
strict compliance with these rules is
required, see e.g., Potter v. Breaks
Interstate Park Commission, Ky., 701 S.W.2d
403 (1985), actual notice to the defendant
is not necessary. Appointment of a warning
order attorney is a procedural device
permitting an action to proceed, in certain
circumstances, unknown to the defendant.
However, the relation back rule
mandates that the party to be named in an
amended pleading knew or should have known
about the action brought against him. CR
15.03(2)(b). Actual, formal notice may not
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be necessary. Cf., Funk v. Wagner
Machinery, Inc., Ky.App., 710 S.W.2d 860
(1986). Nevertheless, knowledge of the
proceedings against him gained during the
statutory period must be attributed to the
defendant. CR 15.03(2)(b). As noted by the
United States Supreme Court in its review of
the federal relation back rule, “(T)he
linchpin is notice, and notice within the
limitations period.” Schiavone v. Vortune
aka Time, Inc., ___ U.S. ___, 106 S.Ct.
2379, 91 L.Ed.2d 18 (1986).
Movant Nolph lacked notice of the
lawsuit within the limitations period.
Thus, a key ingredient of CR 15.03 is
missing. The trial court did not err in
refusing to permit the amended pleading to
relate back to the time of the original
complaint.
Nolph, Id. at 861-62 (footnotes omitted).
Whitaker argues on appeal that Nolph is not
controlling but rather that the court should rely on Underhill
v. Stephenson, Ky., 756 S.W.2d 459 (1988) and Hagy v. Allen, et.
al, E.D. Ky., 153 F. Supp. 302 (1957).
In Underhill, the
Supreme Court of Kentucky held that the trial court committed
reversible error when it refused to permit the Underhills to
amend their complaint.
However, the Supreme Court distinguished
Underhill from the facts presented in Nolph.
Specifically, the
Supreme Court stated:
The trial court committed reversible
error when it refused to permit the
Underhills to amend their complaint by
alleging that the hospital was negligent
acting through its officers, agents, and/or
employees. Civil Rule 15.03(2) provides for
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the amendment of an original pleading to
relate back to the date of the original
proceedings. The important consideration is
not whether the amended pleading presents a
new claim or defense, but whether the
amendment relates to the general factual
situation which is the basis of the original
controversy. Perkins v. Read, Ky., 616
S.W.2d 495 (1981). The hospital will not be
unduly prejudiced by the amendment. This
Court has previously indicated that a
malpractice action is barred only when the
alleged negligence was discovered or should
have been reasonably discovered. There was
no way for the Underhills to discover the
misrepresentation as to the presence of the
physician at the hospital emergency room
until his deposition was taken on May 1,
1984. Thereafter they sought to amend their
complaint within one year from the date of
such discovery.
Nolph v. Scott, Ky., 725 S.W.2d 860
(1987) does not apply because the underlying
fact situation is different. Here the
alleged negligent act of the nurse (the
occurrence) was unknown until the doctor’s
deposition was taken.
Nolph, Id. at 460-61.
As to the Underhill’s reliance on the Hagy case, we
believe the more recent federal case of Ford v. Hill, E.D. Ky.,
874 F.Supp. 149 (1995), to be controlling on this issue.
In the
Ford case, Chief Judge William Bertelsman dismissed a claim made
against two unknown police officers.
In so doing, the Judge
held as follows:
The parties agree that plaintiffs’
initial complaint contains the same factual
allegations against two John Doe officers
that have now been made against defendants
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Hill and Crafton. The parties further agree
that plaintiff filed an amended complaint
identifying defendants Hill and Crafton by
name on July 11, 1994.
The issue, then, is whether naming an
unknown or John Doe party can constitute “a
mistake concerning the identity of the
proper party” for purposes of relation back
under Rule 15(c)(3). The First and Seventh
Circuits have unequivocally concluded:
Rule 15(c)(3) “permits an
amendment to relate back only
where there has been an error made
concerning the identity of the
proper party and where that party
is chargeable with knowledge of
the mistake, but it does not
permit relation back where, as
here, there is a lack of knowledge
of the proper party.”
Wilson v. United States, 23 F.3d 559,
563 (1st Cir.1994) (quoting Worthington v.
Wilson, 8 F.3d 1253, 1256 (7th Cir.1993))
(emphasis in original). In Worthington, the
original complaint named “unknown police
officers.” In Wilson, the original
complaint correctly named the corporation
plaintiff intended to name, but the
corporation turned out to be the wrong
party. The courts in both cases refused to
permit relation back of an amendment under
Rule 15(c)(3).
In this case, plaintiffs initially
lacked knowledge of the proper defendants
and elected to file their complaint against
“unknown officers.” Because Rule 15(c)(3)
applies only where there has been an error
concerning the identity of the proper party
rather than where, as here, there is a lack
of knowledge of the proper party, the
amended complaint in this case does not
relate back to the filing of the initial
complaint. Accordingly, plaintiffs’
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individual claims against defendants Crafton
and Hill are barred by the one-year statute
of limitations.
Ford v. Hill, 874 F.Supp. 153-54.
Despite Whitaker’s arguments to the contrary, the
Pulaski Circuit Court properly found that Whitaker’s claim
against McIntyre Machinery is barred by the statute of
limitations.
Thus the order of the Pulaski Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Joel Randolph Smith
Jamestown, KY
Linsey W. West
Kara MacCartie Stewart
Lexington, KY
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