WEST VIRGINIA RECORD

CHARLESTON – The plaintiff in a personal injury lawsuit against the Town of Wayne cannot add additional defendants to the lawsuit after the expiration of the statute of limitations, the state Supreme Court has ruled.

The court filed its unanimous opinion affirming the dismissal of the suit by the Circuit Court of Wayne County on June 28.

In May 2007, Deborah Wallace alleged she was injured after she stepped on a water meter cover in the parking lot of the Wayne Post Office and the cover flipped over. On May 20, 2009, Wallace and husband Dale filed a complaint against the Town of Wayne for negligence, failure to warn and loss of consortium.

On July 9, 2010, Wayne filed a third-party complaint against I.L. Long Construction for negligently re-paving the parking lot. Long then filed a third-party defendant and fourth-party plaintiff complaint against Akers Paving, asserting claims for contribution and express and/or implied indemnification for all damages that might be rendered against them. Long had contracted with Akers to pave the parking lot.

The circuit court dismissed the complaint against Wayne on March 2, 2012, and Long moved to dismiss the action pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure on April 12, 2012. Akers subsequently joined Long’s motion to dismiss.

On April 6, 2012, Dale Wallace, as Executor of the Estate of Deborah Wallace, was allowed to replace Deborah Wallace as a plaintiff. Wallace had died two months earlier.

Later in April, Dale Wallace sought permission to amend the complaint to assert that Long and Akers were negligent in performing work on the parking lot.

Wallace argued that neither Long nor Akers would be prejudiced by the amended complaint because both parties had already been involved in the action for over a year. However, the circuit court granted Long and Aker’s motion to dismiss and denied Wallace’s motion to amend the complaint on May 24, 2012 and June 28, 2012, respectively.

Dale Wallace appealed the dismissal order to the state high court, arguing that since both respondents had participated in discovery and were prepared to go to trial before the circuit court, the two construction companies would not have been prejudiced. Petitioner Wallace further argued that the amended complaint would not have raised new substantive issues because it arose out of the same occurrence as the original complaint.

The court, quoting Brooks vs. Isinghood, stated:

"Under the 1998 amendments to Rule 15(c)(3) of the West Virginia Rules of Civil Procedure, before a plaintiff may amend a complaint to add a new defendant, it must be established that the newly-added defendant (1) received notice of the original action 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 the newly-added defendant, prior to the running of the statute of limitation or within the period prescribed for service of the summons and complaint, whichever is greater.

“Under the facts of this case petitioner’s statute of limitations expired on May 22, 2009. The record reflects that Long was not added as a party until July 9, 2010, and Akers was not added until September 1, 2010, both well over a year after the statute of limitations expired.

“Therefore, because respondents did not receive notice of the original complaint prior to the expiration of the statute of limitations or within 120 days of the service of the original complaint, petitioner’s amended complaint does not relate back to the original complaint as required by Rule 15."