WASTE MANAGEMENT OF KENTUCKY, LLC VS. WILDER (SHAWN B.), ET AL.
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RENDERED: JULY 25, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-002438-MR
WASTE MANAGEMENT OF KENTUCKY, LLC
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE KATHLEEN VOOR MONTANO, JUDGE
ACTION NO. 05-CI-010838
SHAWN B. WILDER and
LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; KELLER, JUDGE; HENRY,1 SENIOR
JUDGE.
HENRY, SENIOR JUDGE: On December 19, 2003, an automobile accident
occurred involving a garbage truck owned by Waste Management of Kentucky,
LLC (Waste Management) and operated by one of its employees, and an EMS
Senior Judge Michael L. Henry, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
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vehicle owned by Louisville/Jefferson County Metro Government (Louisville
Metro) and operated by its employee Shawn B. Wilder. Waste Management filed
suit to recover for damage to its vehicle on December 19, 2005, the final day of the
two-year limitations period. See Kentucky Revised Statutes (KRS) 413.125. In
the original complaint, only Louisville Metro was named as a defendant. On
February 1, 2006, Waste Management filed a motion to amend its complaint to add
Wilder as a defendant. The motion was granted. In the meantime, Louisville
Metro filed a motion to dismiss on grounds of sovereign immunity. That motion
was initially denied but was later granted after a motion to reconsider. Wilder filed
a motion to dismiss the complaint against him because the statutory limitations
period had expired before he was added as a party. Waste Management argued in
response that the filing of the First Amended Complaint related back to the filing
of the original complaint under Kentucky Rules of Civil Procedure (CR) 15.03. In
October, 2006, the trial court granted both Louisville Metro’s and Wilder’s
motions to dismiss. Waste Management has appealed only the order dismissing its
complaint against Wilder, arguing that the circuit court erred in ruling that the First
Amended Complaint did not relate back to the date of filing of the original
complaint. We disagree; thus, we affirm.
When ruling on the motion to dismiss, the trial court considered
Wilder’s accompanying affidavit asserting that he did not learn about the lawsuit
until he was served with the summons and complaint on March 25, 2006. We must
therefore treat the motion as one for summary judgment. Waddle v. Galen of
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Kentucky, Inc., 131 S.W.3d 361, 364 (Ky.App. 2004); CR 12.02. As a general
rule, “[t]he standard of review on appeal of a summary judgment is whether the
trial court correctly found that there were no genuine issues as to any material fact
and that the moving party was entitled to judgment as a matter of law.” Scifres v.
Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996); CR 56.03. “Because summary
judgments involve no fact finding, this Court reviews them de novo, in the sense
that we owe no deference to the conclusions of the trial court.” Blevins v. Moran,
12 S.W.3d 698, 700 (Ky.App. 2000). De novo review would be appropriate here
in any event because Waste Management raises no issue of fact on appeal and
seeks review of a purely legal question. See Western Kentucky Coca-Cola Bottling
Co., Inc. v. Revenue Cabinet, 80 S.W.3d 787, 790 (Ky.App. 2001).
Waste Management’s sole issue on appeal—that its First Amended
Complaint satisfied the requirements of CR 15.03 for relation back, and therefore
the circuit court erred by dismissing it—is divided into two subparts: first, that
Wilder had constructive notice of the pending suit within the statutory limitations
period, and second, that the failure to include Wilder as a named party was a
“mistake” within the meaning of CR 15.03(2)(b).
The relevant part of CR 15.03, titled “Relation Back of
Amendments,” says:
(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.
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(2) An amendment changing the party against whom a
claim is asserted relates back if the condition of
paragraph (1) is 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.
....
We noted above that Waste Management raises no factual issues in this appeal. No
attempt was made to contravene the allegations in Wilder’s affidavit that he had no
actual notice of the institution of the action within the two-year statute of
limitations period. Instead, Waste Management argues that Wilder had
constructive notice under the “identity of interest” exception to CR 15.03(2)(a)
relied upon in Halderman v. Sanderson Forklifts Company, LTD, 818 S.W.2d 270
(Ky.App. 1991), Nolph v. Scott, 725 S.W.2d 860 (Ky. 1987) and Funk v. Wagner
Machinery, Inc., 710 S.W.2d 860 (Ky.App. 1986).
The relevant part of CR 15.03 is identical to Federal Rules of Civil
Procedure Rule (FRCP) 15(c). The “identity of interest” exception apparently
found its way into Kentucky law via Kirk v. Cronvich, 629 F.2d 404 (5th Cir.
1980); see Clark v. Young, 692 S.W.2d 285, 288 (Ky.App. 1985). Cronvich was
overruled by Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18
(1986). In Schiavone, the Supreme Court said that “[t]he object of the [identity of
interest] exception is to avoid the application of the statute of limitations when no
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prejudice would result to the party sought to be added.” Schiavone at 477 U.S. 28.
Schiavone was a libel action against Fortune magazine. Fortune, rather than a
separate company, “is only a trademark and the name of an internal division of
Time, Incorporated (Time), a New York corporation.” Id. at 477 U.S. 23. Even
though Fortune is a division of Time, the United States District Court for the
District of New Jersey held that without proof that Time had actual notice of the
filing of the action prior to expiration of the statute of limitations, an amended
complaint naming Time filed after the statute expired did not relate back under the
rule. The court accordingly dismissed Schiavone’s amended complaint. The
United States Court of Appeals for the Third Circuit affirmed. The United States
Supreme Court affirmed, declining to adopt the “identity of interest” theory as it
was employed in Cronvich and by a minority of federal appellate courts. The
Court held in essence that the parts of FRCP 15(c) which serve as a guide for our
interpretation of CR 15.03 literally mean what they say, that is, that “in order for
an amendment adding a party to relate back under Rule 15(c) the party to be added
must have received notice of the action before the statute of limitations has run.”
Schiavone at 477 U.S. 31, quoting 6 C. Wright & A. Miller, Federal Practice and
Procedure § 1498, p. 250 (Supp.1986).
Schwindel v. Meade County, 113 S.W.3d 159 (Ky. 2003) examines
the “identity of interest” exception in Kentucky law. Schwindel cites Schiavone,
Cronvich, Halderman, Nolph and Funk and discusses many of those cases.
Schwindel also discusses what kind of “mistake” is contemplated by CR
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15.03(2)(b), which comprises the second subpart of Waste Management’s
argument here. We believe that Schwindel provides controlling authority for this
case. Mrs. Schwindel fell on bleachers at a softball tournament. She and her
husband sued Meade County, the county judge, the magistrates, the Meade County
Board of Education, the superintendent of schools and the county school board
members, all in their official capacities. More than three months after the
limitations period expired, the plaintiffs were granted leave to file an amended
complaint naming as additional defendants “The Unknown Defendant(s), the
servants, agents, and employees of Meade County, Kentucky, and/or Meade
County Board of Education.” The amended complaint was later dismissed. The
Kentucky Supreme Court held that dismissal of the amended complaint against the
unknown defendants was proper:
[T]he implied . . . “should have known” notice referred to
in CR 15.03(2)(b), which gave rise to the “identity of
interest” exception, applies only when the plaintiff has
mistakenly sued the wrong party and the right party
“knew or should have known” of that fact . . . . Absent
mistake, the “identity of interest” exception to the
requirement of actual notice does not apply.
Schwindel at 170 (emphasis in original). In that case, there was no “mistake,” the
action was not commenced against the unknown defendants within the period of
limitations, and Schwindel did not show that those defendants had actual notice of
the filing of the action within the limitations period; therefore, the amended
complaint could not relate back. Put another way, the plaintiffs in Schwindel had
to know at the time they filed their lawsuit that some “servants, agents, and
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employees of Meade County, Kentucky, and/or Meade County Board of
Education” negligently constructed or maintained the bleachers that caused Mrs.
Schwindel’s injuries unless they believed that the members of the Meade County
Fiscal Court or the Meade County Board of Education did such work themselves;
yet they failed to sue them within the time allowed by the statute.
Likewise, Waste Management had to know that some employee was
driving Louisville Metro’s EMS vehicle when the collision occurred, but failed to
name any such person in the complaint before the statute of limitations expired.
Waste Management would have made a “mistake” if, to borrow Louisville Metro’s
example, it had sued Gene Wilder instead of Shawn Wilder. Even then, to avail
itself of the benefit of CR 15.03, Waste Management would have had to show that
Shawn Wilder “knew or should have known” of the filing and had sufficient notice
so as not to be prejudiced in his defense prior to the expiration of the limitations
period. Id. at 169-70. This case involves no “mistake” within the meaning of CR
15.03 nor any showing that the other requirements of the rule were met. Dismissal
was proper.
The Order of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James M. Gary
Louisville, Kentucky
Gregory Scott Gowen
Louisville, Kentucky
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