Civil Procedure

Wait. Which One of You Was Injured Again?

Note: not an actual pleading. Do not copy.

Attorneys frequently name the wrong individuals as defendants in lawsuits. No problem. When they ascertain who the true defendant should be, they simply amend their pleadings. Astonishingly, an attorney in this case filed suit naming the wrong person as the plaintiff.

Diliberti v. Stage Call Corp., 4 Cal. App. 4th 1468, 1469 (1992) (emphasis added).

This case involved two sisters who had been in a car accident, but only one of them was injured. Unfortunately, her attorney filed suit on behalf of the wrong one.

Worse, nobody seems to have noticed this until the defendant asked for the plaintiff’s medical records, but that wasn’t until over two years later. And you know what that means…. Oh, you don’t? Well, it means the statute of limitations had expired. So it was then too late for the injured sister to sue or (as the court held on appeal) to amend the complaint in order to substitute her for the one who did sue but wasn’t injured.

It would have been different, the court said, if the only problem were a mistake in the caption. But in this case, “after reading the complaint, one would not even know Mary Jo existed, let alone know that there was a passenger in Francine’s automobile.” Mary Jo, therefore, was out of luck.

Although probably not out of pocket, because naming the wrong plaintiff in a complaint and then not fixing it until after the statute of limitations expires seems like a pretty clear case of what one might call professional negligence. So one way or another, Mary Jo probably did get her bills covered.