concurring. I concur with the majority’s decision in this case; however, I write separately because the majority understates the effect of Arkansas Rules of Civil Procedure 15(c) and 17(a) with respect to permitting the substitution of a new plaintiff to relate back under circumstances not implicated in this case.
Rule 15(c) of the Arkansas Rules of Civil Procedure, with the exception of minor wording changes, is identical to Rule 15(c) of the Federal Rules of Civil Procedure. The Reporter’s Notes to Rule 15(c) states the following with respect to the rule’s adoption and effect:
The question of relation back of pleadings normally does not arise unless the statute of limitations is involved. Under this and the Federal Rule, an amendment always relates back when it arises out of the conduct, transaction or occurrence set forth in the original pleading. Under prior Arkansas law, the question of whether a pleading related back was determined by whether the amendment asserted a new cause of action against the defendant. If it did, the amended pleading could not stand or relate back.
Ark. Rule Civ. P. 15, Reporter’s Notes to Rule 15 (2001). Thus, the adoption of Rule 15(c) represented a substantial departure from prior Arkansas procedural law in its shift away from the “new cause of action” analysis of amended pleadings.
The majority cites a pre-rule case, Floyd Plant Food Co. v. Moore, 197 Ark. 259, 122 S.W.2d 463 (1938), for the proposition that where the amended complaint substituted out all the plaintiffs and put in their place entirely new plaintiffs, the amendment constituted a new suit that could not relate back to the original complaint. In Floyd Plant Food, the question answered by this court was whether an amendment could relate back when a new plaintiff was substituted in a case that was filed prior to the running of the statute of limitations. Floyd Plant Food Co. v. Moore, 197 Ark. 259, 122 S.W.2d 463 (1938). We held, relying on the “new cause of action” reasoning, that Federal Chemical Company could not, after the statute of limitations had run, substitute itself for Floyd Plant Food Company, which Federal Chemical had subsumed in a merger. Id. The suit had been filed in the name of Floyd Plant Food Company before the running of the statute of limitations. Id. This court reasoned that, “if the attempted substitution of the new plaintiff, the only one who could maintain the suit, has any effect it was in the nature of a new action begun at the time of the filing of the amendment which was after the statute bar had attached.” Id. at 267, 122 S.W.2d 466-467 (emphasis added). We elaborated by answering the following hypothetical proposition:
It is a matter of extreme doubt that the St. Louis S. W. R. Co. could maintain a suit in the name of the Cotton Belt Railroad Company, though the two names designate only one person. It would not be a matter of mistake if it filed a suit under such name or style, because it must recognize its own corporate existence and corporate name. There is a difference in being made a defendant under one or two or more names by which a person or corporation might be known and in suing and attempting to maintain litigation under such an appellation which it, itself, knew was not correct.
Id. at 265, 122 S.W.2d 465-466 (emphasis added).
As the Reporter’s Notes to the Arkansas Rules of Civil Procedure plainly state, with the adoption of these rules we abandoned the analytical framework of “new cause of action” with respect to the relation back of certain types of amendments. The new rule permits relation back much more liberally so long as there is a transactional nexus with the original pleading. Rule 15 states in relevant part:
(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when:
(1) 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, or
(2) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (1) is satisfied and, within the period provided by Rule 4(i) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a 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 the party.
Ark. Rule Civ. P. 15(c)(emphasis added). Clearly, the rule not only permits the addition of claims and defenses arising out of the same transaction, but also permits the substitution of parties so long as the amendment is related to the same transaction, service is perfected, and there is no prejudice to the other party. Although this court has not addressed this precise issue, the federal courts have construed the effect of Rule 15(c) where new plaintiffs are concerned. Our rules of civil procedure are modeled on the federal rules of civil procedure, and we have consistently held that where our rules are nearly identical or substantially the same, federal precedent and commentary should be accorded “significant precedential value.” See Smith v. Washington, 340 Ark. 460, 10 S.W.3d 877 (2000) (reasoning that “based upon the similarities of our rules with the Federal Rules of Civil Procedure, we consider the interpretation of these rules by federal courts to be of significant precedential value.”).
The commentary to the 1966 amendments to Fed. R. Civ. P. 15(c), which have been adopted by this court, states that the rule applies by analogy to plaintiffs in order to effectuate the policy of liberalized requirements of pleading.
The relation back of amendments changing plaintiffs is not expressly treated in revised Rule 15(c) since the problem is generally easier. Again the chief consideration of policy is that of the statute of limitations, and the attitude taken in revised Rule 15(c) toward change of defendants extends by analogy to amendments changing plaintiffs. Also relevant is the amendment of Rule 17(a) (real party in interest). To avoid forfeitures of just claims, revised Rule 17(a) would provide that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed for correction of the defect in the manner there stated.
Fed. R. Civ. P. 15, Advisory Committee Notes to the 1966 Amendments (2002). Thus, the commentary indicates that Rule 15(c) may operate to permit amendments changing plaintiffs to relate back and illustrates that intent by pointing to related provisions in revised Rule 17(a). See Fed. R. Civ. P. 17. Rule 17 of the Arkansas Rules of Civil Procedure is a slightly modified version of Fed. R. Civ. P. 17. See Ark. R. Civ. P. 17, Reporter’s Notes to Rule 17 (2001).
The interaction between Rule 15(c) and Rule 17(a) in the context of new plaintiffs has been addressed by the federal appellate courts. In that regard, these rules have been construed as being designed for a twofold purpose: 1) to further a lenient and permissive purpose with respect to a real party in interest; and 2) to protect the defendant against a subsequent action by another party, and to insure generally that the judgment will have its proper effect as res judicata. See Scheufler v. General Host Corp., 126 F.3d 1261 (10th Cir. 1997); Crowder v. Gordons Transports, Inc., 387 F.2d 413 (8th Cir. 1967); see also Fed. R. Civ. P. 17, Advisory Committee Notes to the 1966 Amendments (2002).
In the Crowder case, the Eighth Circuit Court of Appeals allowed an administratrix to amend her timely-filed wrongful-death complaint after the statute of limitations had run and to substitute herself as the mother and next friend of the decedent’s two minor children. Crowder v. Gordons Transports, Inc., 387 F.2d 413 (8th Cir. 1967). The appellate court stated that Rules 15(c) and 17(a) were designed for relation back “to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made.” Id. at 418 (citing 28 U.S.C.A. Rule 17, Cum. P.P. Notes p. 5). The Crowder court determined that the plaintiffs mistake in bringing the action initially in the name of the administratrix was “understandable and excusable.” Id. at 419. That case included a conflicts-of-law question with respect to whether Arkansas or Missouri law governed, and each state’s wrongful-death statute placed the cause of action in a different party.
Likewise, in the Schuefler decision, the Tenth Circuit Court of Appeals permitted an amended pleading to relate back when a group of landlord plaintiffs substituted tenant plaintiffs as the real party in interest in a water-rights action. Schuefler v. General Host Corp., 126 F.3d 1261 (10th Cir. 1997). The appellate court noted that the failure to name the real party in interest was not “some tactic designed to prejudice defendants, but instead was the result of a mistake as to the legal effectiveness of the documents allegedly assigning the tenants’ claims to their respective landlords.” Id. at 1270. See also Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11 (2d Cir. 1997) (holding that district court erred in failing to permit the substitution of plaintiffs to relate back where AMI had been mistaken about the legal effect of a shareholder assignment, observing that the “history of the Rules makes clear not only that Rule 15 was meant to be generally applicable to a proposed change of plaintiffs, but that in this regard Rule 17(a) is implicated as well.” Id. at 19.)
Furthermore, the federal appellate courts have looked to Rule 17(a)’s express provision for the substitution of the real party in interest and analogized that Rule 15(c) permits this kind of amendment to relate back. Advanced Magnetics, supra; Schuefler, supra; Crowder, supra. Rule 17 of the Arkansas Rule of Civil Procedure provides in relevant part that:
Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian (conservator), bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or the State or any officer thereof or any person authorized by statute to do so may sue in his own name without joining with him the party for whose benefit the action is being brought. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
Ark. R. Civ. P. 17(a)(2001) (emphasis added). As already noted, Arkansas’s Rule 17 is virtually identical to the federal rule. Thus, Rule 17(a) may operate to permit a plaintiff to be substituted for another plaintiff and the substitution would have the “same effect as if the action had been commenced by the real party in interest.” Id. The Advisory Committee Notes to Rule 17 of the Federal Rules of Civil Procedure delineate the governing principles: “Modern decisions are inclined to be lenient when an honest mistake has been made in choosing the party in whose name the action is to be filed. . . and the rule is “intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made.” Fed. R. Civ. P. 17(a), Advisory Committee Notes to the 1966 Amendments (2002).
This case does not involve the substitution of the real party in interest following an “understandable mistake” made in the initial pleading. Both the survival statute, Ark. Code Ann. § 16-62-101 (Supp. 2001), and the wrongful-death statute, Ark. Code Ann. § 16-62-102 (Supp. 2001), are very clear with respect to which party has the right to bring the cause of action.1 A survival action under Section 16-62-101 may only be brought by an administrator or executor of the decedent’s estate. A wrongful-death action under Section 16-62-102 must be brought by and in the name of the personal representative of the decedent unless there is no personal representative, in which event the action must be brought by all of the heirs at law. Ramirez v. White. County, 343 Ark. 372, 38 S.W.3d 298 (2001). Here, Timothy’s daughter, Stephanie Thomas Hart, was appointed special administrator of her father’s estate on July 19, 1999. When the pro se complaint was filed on February 23, 2001, by less than all of the heirs at law, there had been no change in Stephanie Hart’s status. She was still the appointed special administrator for her father’s estate. The mistake in bringing the action initially in the name of less than all of the heirs was neither “understandable” nor “excusable.” For this reason, I concur with the result reached in this case.
The majority concludes that the pro se complaint filed by some of the heirs merely stated a survival action claim and did not also sufficiently plead a wrongful death action. I disagree. The Arkansas Rules of Civil Procedure state that “[a] 11 pleadings are to be liberally construed so as to do substantial justice.” Ark. Rule of Civ. P. 8(f) “Construction of Pleadings” (2001). Similarly, the rules state that “[e]ach averment of a pleading shall be direct and stated in ordinary and concise language. No technical forms of pleadings or motions are required.” Ark. R. Civ. P. 8(e)(1)(2001).
The pro se complaint in this case states in Paragraph No. 2 that “the cause of action involves medical negligence and wrongful death.” The complaint then seeks, as a result of the alleged negligence of the defendant, compensation for pain, suffering, and anguish sustained by Timothy Thomas prior to his death; funeral expenses; and “all other damages entitled under Arkansas law. ” The final portion of the prayer for relief, when viewed in conjunction with Paragraph No. 2 of the complaint, should be liberally construed to state a claim under Ark. Code Ann. 16-62-102 for wrongful death.