Bradley v. Doe

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1392
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
JAMES ARTHUR BRADLEY, III,
Plaintiff

Nash County
v.
No. 12 CVS 1638

JOHN DOE and CSX TRANSPORTATION, INC.,
Defendants

Appeal by plaintiff from order entered 5 September 2013 by

Judge Quentin T. Sumner in Nash County Superior Court. Heard in

the Court of Appeals 9 April 2014.

The Moody Law Firm, Inc., by Claude W. Anderson, Jr., for
Plaintiff.

Poyner Spruill LLP, by Timothy W. Wilson and Karen H.
Chapman, for unnamed Defendants North Carolina Farm Bureau
Insurance Agency, Inc. and North Carolina Farm Bureau
Mutual Insurance Company, Inc.

ERVIN, Judge.

Plaintiff James Arthur Bradley, III, appeals from an order

granting a motion for summary judgment filed by Defendant North

Carolina Farm Bureau Insurance Agency, Inc., and a motion to

dismiss filed by Defendant North Carolina Farm Bureau Mutual

Insurance Company, Inc., and denying Plaintiff’s motion to amend
 -2-
the summons issued and the complaint filed in this case so as to

correctly name the carrier that provided him with uninsured

motorists coverage. On appeal, Plaintiff argues that the trial

court erred by denying his amendment motion and granting Farm

Bureau Mutual Insurance’s dismissal motion on the grounds that

the naming of Farm Bureau Insurance Agency as the party

defendant in the original summons and complaint reflected a

simple misnomer that created no substantial risk of confusion

concerning the identity of the entity against which he intended

to bring suit. After careful consideration of Plaintiff’s

challenges to the trial court’s order in light of the record and

the applicable law, we conclude that the trial court’s order

should be affirmed.

I. Factual Background

A. Substantive Facts

On 21 November 2009, Plaintiff, an employee of CSX

Transportation, Inc., was involved in an automobile accident

while driving a company vehicle in the course and scope of his

employment. As a result of the fact that he left the scene, the

driver of the other vehicle involved in the accident was never

identified. Plaintiff received injuries to his neck and back as

a result of the accident and missed time from work. At the time

of the accident, Plaintiff owned an automobile liability policy
 -3-
issued by Farm Bureau Mutual Insurance Company,1 which provided,

among other things, coverage in the event that Plaintiff was

injured as the result of the negligence of an uninsured

motorist.

B. Procedural History

On 11 October 2012, Plaintiff filed a complaint against the

unknown other driver, whom he named “John Doe,” and CSX. In his

complaint, Plaintiff alleged that “[t]his Complaint is being

served on North Carolina Farm Bureau Insurance Agency, Inc.,

which provides uninsured motorist coverage to Plaintiff[.]” As

a result, Plaintiff obtained the issuance of a summons directed

to “John Doe c/o H. Julian Philpott, Registered Agent, North

Carolina Farm Bureau Insurance Agency, Inc.,” with this summons

and complaint having been served upon Mr. Philpott on 20

November 2012.2

1
Old Republic Insurance Company, which provided automobile
liability coverage to CSX and insured the CSX-owned vehicle that
Plaintiff was operating at the time of the accident, did not
provide uninsured motorists coverage that covered Plaintiff.
Although Plaintiff served a summons and a copy of the complaint
on Old Republic, he later voluntarily dismissed that claim and
the claim that he had asserted against CSX.
2
Mr. Philpott is the registered agent for both Farm Bureau
Insurance Agency and Farm Bureau Mutual Insurance. According to
the record, Farm Bureau Insurance Agency and Farm Bureau Mutual
Insurance operate from the same location and are represented by
the same legal counsel in this case.
 -4-
On 19 December 2012, Farm Bureau Insurance Agency filed a

responsive pleading in which it asserted, among other things,

that “Farm Bureau Agency . . . did not issue any policy of

insurance to Plaintiff and is a separate and distinct entity

from North Carolina Farm Bureau Mutual Insurance Company, Inc.,”

so that “Farm Bureau Agency has no liability for any of

Plaintiff’s claims or causes of action[.]” On 29 July 2013,

Farm Bureau Insurance Agency filed a motion seeking the entry of

summary judgment in its favor. On 19 December 2012, Farm Bureau

Mutual Insurance filed a responsive pleading in which it sought

to have Plaintiff’s complaint dismissed for lack of

jurisdiction, insufficient process, insufficient service of

process, and failure to state a claim upon which relief could be

granted. On 12 August 2013, Plaintiff filed a motion to amend

the original summons and complaint in which he sought to remove

the references to Farm Bureau Insurance Agency and replace them

with references to Farm Bureau Mutual Insurance.3

3
According to Farm Bureau Mutual Insurance’s brief,
Plaintiff obtained the issuance of an alias and pluries summons
directed to “John Doe c/o North Carolina Farm Bureau Mutual Ins.
Co., Inc.,” on 3 January 2013. Although no such alias and
pluries summons appears in the record on appeal, Plaintiff has
not made any contention to the effect that the issuance of any
such alias and pluries summons had the effect of keeping his
claim against Farm Bureau Mutual Insurance alive. As a result,
we need not address any issue relating to the validity of or
effect that should be given to this alias and pluries summons in
our opinion in this case. N.C. R. App. P. 28(a) (stating that
 -5-
On 3 September 2013, the trial court held a hearing

concerning the issues raised by Farm Bureau Insurance Agency’s

summary judgment motion, Farm Bureau Mutual Insurance’s

dismissal motion, and Plaintiff’s amendment motion. On 5

September 2013, the trial court entered an order granting Farm

Bureau Insurance Agency’s summary judgment motion and Farm

Bureau Mutual Insurance’s dismissal motion and denying

Plaintiff’s amendment motion. Plaintiff noted an appeal to this

Court from the trial court’s order.

II. Substantive Legal Analysis

In his brief, Plaintiff contends that the trial court erred

by granting Farm Bureau Mutual Insurance’s dismissal motion, and

denying his motion to amend the summons and complaint. More

specifically, Plaintiff contends that the naming of Farm Bureau

Insurance Agency, rather than Farm Bureau Mutual Insurance, in

the original summons and complaint constituted a simple misnomer

that the trial court should have allowed him to correct and that

there was no substantial possibility of any confusion concerning

the identity of the entity against whom he intended to assert

his uninsured motorists coverage claim given that the summons

and complaint were served on the registered agent of the party

that he intended to sue and given that the intended party

“[i]ssues not presented and discussed in a party’s brief are
deemed abandoned”).
 -6-
defendant and the entity that he actually named in his complaint

and served with a summons shared the same address, registered

agent, and legal representation.4 We do not find this argument

persuasive.

A. Plaintiff’s Amendment Motion

“A motion to amend is addressed to the discretion of the

court, and its decision thereon is not subject to review except

in case of manifest abuse.” Calloway v. Ford Motor Co., 281

N.C. 496, 501, 189 S.E.2d 484, 488 (1972). Although “leave [to

amend] shall be freely given when justice so requires,” N.C.

Gen. Stat. § 1A-1, Rule 15(a), a trial court is entitled to deny

an amendment motion based upon “(a) undue delay, (b) bad faith,

(c) undue prejudice, (d) futility of amendment, and (e) repeated

failure to cure defects by previous amendments.” Martin v.

Hare, 78 N.C. App. 358, 361, 337 S.E.2d 632, 634 (1985) (citing

United Leasing Corp. v. Miller, 60 N.C. App. 40, 42-43, 298

S.E.2d 409, 411-12 (1982), disc. review denied, 308 N.C. 194,
4
Plaintiff has not argued in his brief that the trial court
erred by granting Farm Bureau Insurance Agency’s summary
judgment motion. Aside from the fact that “[i]ssues not
presented in the appellant’s brief, or in support of which no
reason or argument is stated, will be taken as abandoned,” N.C.
R. App. P. 28(b)(6), the undisputed evidentiary materials
contained in the record establish that Farm Bureau Insurance
Agency “did not write or issue [Plaintiff’s] policy, sell that
policy to [Plaintiff], or have any other involvement whatsoever
with [Plaintiff] or his policy.” As a result, we have no basis
for disturbing the trial court’s decision to grant summary
judgment in favor of Farm Bureau Insurance Agency on appeal.
 -7-
302 S.E.2d 248 (1983); Bryant v. Nationwide Mut. Fire Ins. Co.,

67 N.C. App. 616, 618, 313 S.E.2d 803, 806 (1984), mod. on other

grounds, 313 N.C. 362, 329 S.E.2d 333 (1985)). Thus, the trial

court would have had ample justification for denying Plaintiff’s

amendment motion in the event that allowing Plaintiff to proceed

against Farm Bureau Mutual Insurance would have been an exercise

in futility.

According to well-established North Carolina law,

Plaintiff’s personal injury claim, including any claim asserted

against a carrier providing uninsured motorists coverage, is

subject to a three-year statute of limitations. N.C. Gen. Stat.

§ 1-52(16); Thomas v. Washington, 136 N.C. App. 750, 754, 525

S.E.2d 839, 842 (stating that “this Court has recently made it

clear that the three-year tort statute of limitations, which

begins running on the date of an accident, also applies to the

uninsured motorist carrier”), disc. rev. denied, 352 N.C. 598,

545 S.E.2d 223 (2000). As a result, since the accident took

place on 21 November 2009 and since Plaintiff made no attempt to

name Farm Bureau Mutual Insurance as the entity which provided

him with uninsured motorist coverage in his complaint or to

serve a complaint containing such allegations upon Farm Bureau

Mutual Insurance within three years after the date upon which he

was injured, the claim that Plaintiff wished to assert against
 -8-
Farm Bureau Mutual Insurance was subject to denial on futility-

related grounds unless Plaintiff’s proposed amendment to the

summons and complaint related back to the date upon which

Plaintiff filed the complaint and obtained the issuance of the

summons that he now wishes to amend.

According to N.C. Gen. Stat. § 1A-1, Rule 15(c), “[a] claim

asserted in an amended pleading is deemed to have been

interposed at the time the claim in the original pleading was

interposed, unless the original pleading does not give notice of

the transactions, occurrences, or series of transactions or

occurrences, to be proved pursuant to the amended pleading.”

N.C. Gen. Stat. § 1A–1, Rule 15(c).

When the amendment seeks to add a party-
defendant or substitute a party-defendant to
the suit, the required notice cannot occur.
As a matter of course, the original claim
cannot give notice of the transactions or
occurrences to be proved in the amended
pleading to a defendant who is not aware of
his status as such when the original claim
is filed. We hold that this rule does not
apply to the naming of a new party-defendant
to the action. It is not authority for the
relation back of a claim against a new
party.

Crossman v. Moore, 341 N.C. 185, 187, 459 S.E.2d 715, 717

(1995). Both this Court and the Supreme Court have interpreted

the decision in Crossman to “‘mean that [N.C. Gen. Stat. § 1A-

1,] Rule 15(c)[,] is not authority for the relation back of
 -9-
claims against a new party, but may allow for the relation back

of an amendment to correct a mere misnomer.’” Liss v. Seamark

Foods, 147 N.C. App. 281, 283, 555 S.E.2d 365, 367 (2001)

(quoting Piland Hertford County Bd. Of Comm’rs, 141 N.C. App.

293, 299, 539 S.E.2d 669, 673 (2000)); see also State ex rel.

Cooper v. Ridgeway Brands Mfg., LLC, 362 N.C. 431, 438, 666

S.E.2d 107, 112 (2008) (stating that, “in Crossman[,] we

explicitly barred the use of the relation-back doctrine to add a

new party”). As a result, the ultimate issue raised by

Plaintiff’s challenge to the denial of his amendment motion is

whether the allowance of that motion would have resulted in the

correction of a misnomer or the addition of a new party

defendant.

An issue indistinguishable from the one before us in this

case was addressed in Franklin v. Winn Dixie Raleigh, Inc., 117

N.C. App. 28, 450 S.E.2d 24 (1994), aff’d, 342 N.C. 404, 464

S.E.2d 46 (1995), in which the plaintiff sought to assert a

personal injury claim after falling in a Winn-Dixie store

located in Raleigh. The plaintiff’s original complaint, which

was filed the day before the statute of limitations ran,

designated “Winn Dixie Stores, Inc.” as the defendant. Id. at

38, 450 S.E.2d at 30. Subsequently, the plaintiff learned that

the store in question was actually owned by “Winn-Dixie Raleigh,
 -10-
Inc.,” rather than “Winn-Dixie Stores, Inc.” Id. at 32, 450

S.E.2d at 27. Upon making this discovery, the plaintiff sought

leave to amend his complaint so as to designate “Winn-Dixie

Raleigh, Inc.,” rather than “Winn-Dixie Stores, Inc.,” as the

defendant, claiming that the proposed amendment was intended to

correct a simple misnomer in the manner in which he had

identified the defendant. Id. On appeal, however, this Court

determined that “Winn-Dixie Stores, Inc. and Winn-Dixie Raleigh,

Inc. . . . ha[d] been and were separate and distinct

corporations at the time the cause of action accrued,” so that

the proposed amendment added a new party rather than simply

correcting a misnomer. Id. at 34-35, 450 S.E.2d at 28. As a

result, given that “‘Winn Dixie Stores, Inc.,’ was the correct

name of the wrong corporate party defendant, a substantive

mistake which is fatal to this action,” we held that the

plaintiff’s amended complaint did not relate back to the filing

of the original complaint, that the applicable statute of

limitations barred the plaintiff’s claims, and that, “[q]uite

simply, plaintiffs [had] sued the wrong corporation.” Id. at

35, 450 S.E.2d at 28.

In light of the reasoning that we utilized in Franklin, we

are compelled to reach the same result in the present case. The

effect of our decision in Franklin is the adoption of a rule
 -11-
that, if a litigant files suit against a corporate entity that

actually exists, an attempt to amend a complaint to name a

different corporate entity as the defendant constitutes an

attempt to add a new defendant rather than the correction of a

misnomer. As the undisputed information contained in Mr.

Philpott’s affidavit reflects, Farm Bureau Insurance Agency and

Farm Bureau Mutual Insurance both exist and are distinct

corporate entities. For that reason, like the situation

addressed in Franklin, Plaintiff’s amendment motion amounted to

an effort to add a new party to this case rather than to correct

a misnomer, a fact that rendered the proposed amendment futile

and fully justified the trial court’s decision to deny

Plaintiff’s amendment motion.

In seeking to persuade us to reach a contrary result,

Plaintiff places principal reliance upon our decision in Liss,

in which we held that the plaintiff’s motion to amend his

complaint to name “Seamark Enterprises, Inc.,” rather than

“Seamark Foods,” as the defendant amounted to the correction of

a simple misnomer, so that the amendment in question related

back to the filing of the original complaint. Liss, 147 N.C.

App. at 286, 555 S.E.2d at 369. Unfortunately for Plaintiff,

the situation at issue in Liss, in which the plaintiff brought

suit against a defendant using an incorrect corporate name, and
 -12-
the situation at issue in this case, in which Plaintiff brought

suit against a legal entity that actually existed, are simply

not the same. As we have already noted, Plaintiff simply

brought suit against the wrong corporation in this case, thereby

making “a substantive mistake which is fatal to [his] action.”

Franklin, 117 N.C. App. at 35, 450 S.E.2d at 28. Similarly,

Plaintiff’s reliance upon Pierce v. Johnson, 154 N.C. App. 34,

571 S.E.2d 661 (2002), a wrongful death action arising from a

motor vehicle accident in which we deemed the plaintiff’s error

in naming the decedent, rather than the personal representative,

as the defendant in the summons and complaint constituted a

misnomer that could be corrected by means of an amendment that

related back to the date of the filing of the original

complaint, is equally unavailing. Unlike the situation at issue

in Pierce, in which the person intended to be named as a

defendant and the person actually named as a defendant and

served with the summons and complaint “[were] connected and

dependent legal entities,” Pierce, 154 N.C. App. at 40, 571

S.E.2d at 665, Plaintiff named and served a completely separate

and distinct legal entity in his original summons and complaint

in this case. (R51) As a result, neither Liss nor Pierce

support an award of appellate relief in this instance.
 -13-
Aside from his reliance upon decisions such as Liss and

Pierce, Plaintiff argues that, even though he designated the

wrong party defendant in the summons and complaint, his error

did not create any substantial risk of confusion concerning the

identity of the party against whom he intended to bring suit

given that the summons and complaint were served on the

registered agent of the entity that he intended to sue and that

both the named defendant and the entity that he intended to sue

had the same address, registered agent, and legal counsel.

However, as we stated in Wicker v. Holland, 128 N.C. App. 524,

527, 495 S.E.2d 398, 400 (1998), the fact that the proper

defendant had notice of the action and would not be prejudiced

by the amendment is “irrelevant under Crossman’s analysis of the

limited reach of [N.C. Gen. Stat. § 1A-1,] Rule 15(c).” As a

result, the fact that Farm Bureau Mutual Insurance may have had

actual notice of the claim that Plaintiff intended to assert

against it does not suffice to justify overturning the trial

court’s decision to deny his amendment motion. Thus, the trial

court did not err by denying Plaintiff’s motion to amend his

summons and complaint so as to name Farm Bureau Mutual

Insurance, rather than Farm Bureau Insurance Agency, as the

carrier against whom Plaintiff intended to assert his uninsured

motorists claim.
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B. Farm Bureau Mutual Insurance’s Dismissal Motion

In his challenge to the allowance of Farm Bureau Mutual

Insurance’s dismissal motion, Plaintiff advances essentially the

same arguments that he advanced in the course of challenging the

denial of his motion to amend his summons and complaint. In

light of the fact that the claim that Plaintiff sought to assert

against Farm Bureau Mutual Insurance does not relate back to the

filing of the original complaint and was time-barred when

Plaintiff sought to advance it, we hold that the claim that

Plaintiff sought to assert against Farm Bureau Mutual Insurance

is barred by the applicable statute of limitations and that the

trial court did not, for that reason, err by granting Farm

Bureau Mutual Insurance’s dismissal motion.

III. Conclusion

Thus, for the reasons set forth above, we conclude that

none of Plaintiff’s challenges to the trial court’s order have

merit. As a result, the trial court’s order should, and hereby

does, remain undisturbed.

AFFIRMED.

Judges GEER and STEPHENS concur.

Report per Rule 30(e).