dissenting.
Two years after his injury, plaintiff Roger Eugene Waldon sued Earl and Max Wilson for damages. Nearly four years after his injury he sought to sue Wilson Livestock Farms, Inc. The General Assembly has determined that such actions must commence within two years. Ind.Code § 34-1-2-2(1) (Burns 1986 Repl.) This case tests the extent which the judiciary can permit the lawsuit to be brought later.
The device by which courts have permitted tardy lawsuits to be brought notwithstanding the legislative directive is Trial Rule 15(C), Ind.Rules of Procedure. That rule provides:
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. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment:
(1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and
(2) 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.
Indiana's rule and the identical federal rule were designed to ameliorate the harsh result which obtained when a plaintiff misnamed a defendant or named a defendant in the wrong capacity. For those occasions on which it was clear that the right person had been before the court all along but merely misnamed, justice required a provision permitting amendment.
The opportunity to name new parties, however, is carefully limited by Trial Rule 15(C). Subsection 1 requires that the new party must have received such notice of the institution of the action that he will not be *1158prejudiced in defending. The most respected authorities in the field of civil procedure agree that notice of the incident is not adequate. The party sought to be brought in must have notice, even informal notice, that a lawsuit has commenced. 3 J. Moore, Moore's Federal Practice Chapter 15.15[4.-2] (1987); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1498 (1971).
The question in this case is when the Wilsons and Wilson Livestock Farms, Inc., must have received notice. Trial Rule 15(C) plainly says that a party sought to be added must have received it "within the period provided by law for commencing the action against him." It is undisputed that they did not. Because they did not, the rule does not provide a basis for permitting an action against Wilson Livestock Farms, Inc., beyond the statute of limitations. While my brother Dickson asserts that plaintiff's filing of his complaint gave "constructive notice" during the required period, such an interpretation leaves this seetion of the rule without meaning,. After all, every request for amendment to add parties arises in a case in which the plaintiff filed a timely complaint.
To conclude that the corporation is eligible to be added, one would have to accept the idea that someone like the Wilsons could receive notice days or even years after the action was initiated. This Court declined to accept that idea in Czarnecki v. Lear Siegler, Inc. (1984), Ind., 471 N.E.2d 299.
Whether this rule is too liberal or too restrictive is a matter of policy which might be debated. What the rule provides is really not debatable. As Justice Black-mun wrote for six members of his Court in deciding a case identical to the one before us:
We do not have before us a choice between a "liberal" approach toward Rule 15(c), on the one hand, and a "technical" interpretation of the Rule, on the other hand. The choice, instead, is between recognizing or ignoring what the Rule provides in plain language. We accept the Rule as meaning what it says.
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The linchpin is notice, and notice within the limitations period.
Schiavone v. Fortune, U.S. 21, 30-31, 106 S.Ct. 2379, 2385, 91 L.Ed.2d 18, 28-29 (1986).
Appellant cites Professor William Harvey's declaration that the U.S. Supreme Court decision in Schiavone is "influential, but not impressive or persuasive." 2 W. Harvey, Indiana Practice, Rules of Procedure Annotated 64 (1987). Notwithstanding this critique, every state appellate court which has considered the meaning of Trial Rule 15(C) in the last three years has reached exactly the same conclusion as our Court of Appeals reached in this case. Kiehn v. Nelsen's Tire Company, 45 Wash.App. 291, 724 P.2d 434 (1986); Herrera v. Conner, 111 Idaho 1012, 729 P.2d 1075 (1987) Nolph v. Scott, 725 S.W.2d 860 (Ky.1987). ,
This Court was on a similar track when it decided Czarnecki v. Lear Siegler, Inc. and cited with approval Simmons v. Fenton, 480 F.2d 183 (7th Cir.1978). 471 N.E.2d at 300-301. Today's decision takes us off in a different direction-different from the other state courts which have considered the question, different from the U.S. Supreme Court, and different from our own prior pronouncements.