Davis Davenport v. Hertz Rental Equipment Corporation
187 So. 3d 194
Miss. Ct. App.2016Background
- On May 26, 2009 Davenport was injured when a raised man-buggy fell; he sued multiple parties on May 16, 2012, naming two John Doe corporations among defendants.
- In discovery (Aug. 2, 2012) Davenport acknowledged Hertz had performed repair work on the man-buggy two days before the accident; he later moved to substitute Hertz for a John Doe after the statute of limitations expired.
- Davenport amended his complaint to substitute Hertz (March–August 2013) and later Terex (Oct. 2013) for the John Does; Hertz moved for summary judgment arguing improper substitution and that the statute of limitations barred the claims.
- Trial court granted summary judgment for Hertz, finding Davenport either knew Hertz’s identity or failed to exercise reasonable diligence to discover it so substitution could not relate back; court entered a Rule 54(b) certification as to Hertz.
- Trial court also granted summary judgment for Terex, but that order did not certify finality under Rule 54(b); the appellate court dismissed the Terex appeal for lack of jurisdiction and affirmed the Hertz judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substitution of Hertz under Rule 9(h) related back to the original complaint so claims were timely | Davenport: he was ignorant of Hertz’s identity and thus substitution under Rule 9(h) relates back under Rule 15(c)(2) | Hertz: Davenport knew Hertz’s identity (or could have discovered it with reasonable diligence); substitution does not relate back and claims are time-barred | Court held substitution did not relate back; statute of limitations barred claims; summary judgment for Hertz affirmed |
| Whether substitution of Terex related back and claims against Terex were timely | Davenport: Terex was the manufacturer substituted for a John Doe and should relate back | Terex: substitution was improper and barred by statute of limitations | Appeal dismissed for lack of jurisdiction because Terex’s summary-judgment order was not a final, Rule 54(b)-certified judgment |
| Whether trial court abused discretion by entering Rule 54(b) certification for Hertz while other claims remained pending | Davenport: court erred; certification was premature and prejudicial while his motion for reconsideration was pending | Hertz: certification appropriate due to distinctness of Hertz claim and potential prejudice from delay | Court held no abuse of discretion; Rule 54(b) certification proper |
Key Cases Cited
- Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84 (Miss. 2013) (summary-judgment and relation-back standards applied to fictitious-party practice)
- Womble v. Singing River Hosp., 618 So. 2d 1252 (Miss. 1993) (ignorance of facts giving rise to claim can constitute ignorance of party identity)
- Bedford Health Props. LLC v. Estate of Williams ex rel. Hawthorne, 946 So. 2d 335 (Miss. 2006) (reasonable-diligence requirement for Rule 9(h) substitution)
- Doe v. Miss. Blood Servs., Inc., 704 So. 2d 1016 (Miss. 1997) (plaintiff may not ‘‘sleep on rights’’; lack of diligence defeats relation-back)
- Santangelo v. Green, 920 So. 2d 521 (Miss. Ct. App. 2006) (medical records and other available sources can impose a duty to identify fictitious parties)