KELLER v STEMBRIDGE GUN RENTALS

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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. B i l l i n g s , Montana Molloy a r g u e d , 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: Decided: Clerk A p r i l 1, 1986 June 3 , 1986 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. supplied the gun which Keller believed Ellis had exploded. ABC Manufacturing, a fictitious party defendant, also was named. Interrogatories served on Ellis with revealed Ellis did not supply the weapon. the complaint 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. not supplied the gun When Keller discovered Ellis had which complaint, naming Stembridge. exploded, he amended the 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 merely plaintiff mistakenly LaForest, supra, sues uses and serves the wrong 179 Mont. a t 47, the name correct party of defendant. the 585 P.2d a t 1320. 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, but Rather, 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. t h e wrong e n t i t y . Keller o r i g i n a l - l y sued 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 before t h e Court a f t e r t h e s t a t u t e o f completely new p a r t y 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. 25-5-103 nor LaForest allows substitution of Neither S 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. Munez v. Eaton and Tov,~ne, Inc. citing (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. is he in Stembridge by entity in Stembridge. S compliance with 25-5-103. He naming Ellis as a defendant. its own right Stembridge and is not a a new cannot to sue Ellis is an fictitious name party nor the for action. Consequently the action is barred because Stembridge was not named until July 25, 1983--after the statute of limitations had run. The District judgment and we affirm. We Concur: Court properly granted summary Justices

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