No. 85-474
TN THE SUPREME COURT O THE STATE O MONTANA
F F
1986
ALLEN KELLER ,
P l a i n t i f f and A p p e l l a n t ,
STEMBRIDGE GUN RENTALS, and ABC
IJIANUFACTURING ,
Defendant and Respondent.
APPEAL FROM: D i s t r i c t Court of t h e Eleventh J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f F l a t h e a d ,
The Honorable Michael Keedy, Judge p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
Anderson, Edwards & Molloy; Donald W. Molloy a r g u e d ,
B i l l i n g s , Montana
For Respondent:
Murphy, Robinson, Heckathorn & P h i l l i p s ; Debra D.
P a r k e r a r g u e d , K a l i s p e l l , Montana
Beaudry & Brown; Don F. Reaudry, L o s A n g e l e s ,
California
Submitted: A p r i l 1, 1986
Decided: June 3 , 1986
Clerk
Mr. Justice John C. Harrison, delivered the opinion of the
Court.
This is an appeal from an order of the District Court of
the Eleventh Judicial District in and for Flathead County,
Montana, granting d.efendant summary judgment. The court held
plaintiff's claim was barred because the relation back rule
did not apply and the statute of limitations is not tolled.
We affirm.
The question on appeal is whether the statute of
limitations is tolled on the date the original complaint was
filed. when the complaint incorrectly names the defendant and
his true name is discovered later and submitted by amendment.
We hold it is not.
The plaintiff, Keller, sustained personal injuries
during the filming of the movie Heaven's Gate in August,
1.979. He was issued a Sharps Buffalo Rifle which exploded
while he was using it in the performance of his role. The
gun wa.s in one piece and ostensibly safe when it was issued
to him, but was blown apart and in many pieces after he fired
blanks from it.
Section 27-2-204, MCA, the three year statute of
limitations for tort actions, had nearly run when Keller
filed his original complaint in August, 1982, naming Ellis
Rental a/k/a Ellis Mercantile. Keller believed Ellis had
supplied the gun which exploded. ABC Manufacturing, a
fictitious party defendant, also was named.
Interrogatories served on Ellis with the complaint
revealed Ellis did not supply the weapon. The affidavit of
one Robert Visciglia, the film crew's property manager, whose
duties included accounting for and distributing weapons,
supported this fact, and Ellis' motion for summary judgment
was granted October 11, 1983.
An amended complaint, filed June 25, 1983, naming
Stembridge Gun Rentals as defendant, was served March 29,
1984. Stembridge appeared and moved for summary judgment,
arguing the statute had run. The District Court, relying on
LaForest v. Texaco, Inc. (1978), 179 Mont. 42, 585 P.2d 1318,
granted the motion, reasoning the relation back rule did not
apply. Keller appeals.
The issue can be resolved by analyzing Rule 15(c),
Rule 15(c) provides in pertinent part:
Relation back of amendments. 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.
The critical language in this instance is in the second
sentence of the rule. There is no evidence Stembridge
received notice of the institution of the action or that it
knew or should have known that but for a mistake concerning
the identity of the proper party, the action would have been
brought against it. It is agreed the party against whom the
claim is made is changed. When Keller discovered Ellis had
not supplied the gun which exploded, he amended the
complaint, naming Stembridge. The crux of the problem is
whether Stembridge is a new party to the action.
T h i s i s n o t a c a s e t h a t f a l l s u n d e r t h e "misnomer" r u l e
where a plaintiff sues and serves the correct party but
merely mistakenly uses the wrong name of the defendant.
LaForest, supra, 179 Mont. a t 47, 585 P.2d a t 1320. Rather,
t h i s s i t u a t i o n i s g o v e r n e d by 5 25-5-103, MCA:
Flhen a p l a i n t i f f i s i g n o r a n t o f t h e name o f t h e
d e f e n d a n t , s u c h d e f e n d a n t may b e d e s i g n a t e d i n any
p l e a d i n g o r p r o c e e d i n g by any name; and when h i s
true name is discovered, the pleadings or
p r o c e e d i n g s may be amended a c c o r d i n g l y .
These c i r c u m s t a n c e s p r e s e n t more t h a n mere i g n o r a n c e o f
t h e names o f t h e proper defendant. Keller o r i g i n a l - l y sued
t h e wrong e n t i t y . The c a p t i o n on t h e c o m p l a i n t i n d i c a t e s t h e
d e s i g n a t i o n o f a f i c t i t i o u s p a r t y r e l a t e s o n l y t o t h e unknown
manufacturer:
ALLEN KELLER,
Plaintiff,
ELLIS RENTAL, a / k / a
ELLIS MERCANTILE, and
ABC YANUFACTURING,
D e f e n d a n t No. 1 i s t h e c o r r e c t
designation of t h e e n t i t y t h a t
provided t h e "Sharps Buffalo
Gun" h e r e i n , o n t h e o c c a s i o n
o f i t s e x p l o s i o n ; D e f e n d a n t No. 2
represents an e n t i t y t h a t
m a n u f a c t u r e d o r s o l d t h e gun
t o E l l i s Rental. Plaintiff
a f f i r m s t h a t t h e a c t u a l name o f
the f i c t i t i o u s party designated
h e r e i n i s unknown t o him a t t h i s
t i m e b u t w i l l b e a.dded by amendment
when a s c e r t a i n e d .
Defendants.
Keller is attempting to bring a completely new p a r t y
before t h e Court a f t e r t h e s t a t u t e o f l i m i t a t i o n s has run.
The c a p t i o n makes i t c l e a r h e was s a t i s f i e d E l l i s R e n t a l had
s u p p l i e d t h e B u f f a l o gun. The u s e o f a f i c t i t i o u s name i n
the caption was specifically in.tended for the unknown
manufacturer of the gun.
Both LaForest, supra, and S 25-5-103, MCA, allow the
statute of limitations to be tolled as to a fictitious party
on the date of the original complaint. A fictitiously named
defendant is notice that plaintiff is ignorant of the true
name and is attempting to discover the true name. Neither S
25-5-103 nor LaForest allows substitution of the proper
defendant after discovering the wrong defendant was sued.
The addition or substitution of parties who had no
notice of the original act is allowed.
Substitution of a completely new defendant creates
a new cause of action. Permitting such a procedure
would. undermine the policy upon which the statute
of limitations is based. (Citations omitted. )
LaForest, supra, 585 P.2d at 1320, 179 Mont. at 46. citing
Munez v. Eaton and Tov,~ne,
Inc. (E.D. Pa. 1973), 57 F.R.D.
Keller cannot meet the standard for the relation back of
the amended complaint, pursuant to Rule 15(c), M.R.Civ.P. nor
is he in compliance with S 25-5-103. He cannot sue
Stembridge by naming Ellis as a defendant. Ellis is an
entity in its own right and not a fictitious name for
Stembridge. Stembridge is a new party to the action.
Consequently the action is barred because Stembridge was not
named until July 25, 1983--after the statute of limitations
had run. The District Court properly granted summary
judgment and we affirm.
We Concur:
Justices