Ex parte VEL, LLC
2016 Ala. LEXIS 147
| Ala. | 2016Background
- In June 2011 Kilgore received risperidone instead of prescribed ropinirole from Adams Drugs (35 Mitchell Dr., Montgomery) and was injured; suit filed Feb. 27, 2013.
- Original complaint named VEL, LLC d/b/a Adams Drugs; plaintiffs used fictitious defendants for unknown employees and later sought to substitute Montgomery Drug Co., Inc. (MDCI) and employees Stafford and Greene after the two-year limitations period expired (June 2013).
- Plaintiffs’ counsel had pre-suit and post-suit communications with Penn National (insurer) that identified MDCI by name and included a settlement offer naming “Montgomery Drug Inc.” as the insured.
- Plaintiffs amended complaints multiple times; MDCI moved to dismiss/for summary judgment arguing the statute of limitations barred claims because plaintiffs knew or were on notice of MDCI before the limitations period expired.
- Circuit court denied summary judgment for MDCI, VEL, Stafford, and Greene, finding relation-back under Rule 15(c) (via fictitious-party practice Rule 9(h)), and that equitable tolling/estoppel applied as insurer/defense counsel permitted mistaken belief about the proper defendant.
- Alabama Supreme Court granted mandamus in part: ordered the trial court to grant summary judgment for MDCI (statute-barred), but denied mandamus relief as to VEL, Stafford, and Greene.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether amendment substituting MDCI for a fictitious defendant relates back under Rule 15(c) via Rule 9(h) (ignorance/due diligence) | Plaintiffs: were ignorant of MDCI or exercised due diligence; insurer’s settlement talks misled them | Petitioners: plaintiffs knew or were on notice of MDCI (communications and settlement letter naming MDCI); thus no relation back | Court: Plaintiffs were not ignorant or were on notice of MDCI; relation back denied as to MDCI; summary judgment for MDCI ordered |
| Whether amendment substituting Stafford and Greene for fictitious defendants relates back under Rule 15(c)/Rule 9(h) (ignorance/due diligence/prompt amendment) | Plaintiffs: were ignorant of employees’ identities and amended promptly after learning them | Petitioners: plaintiffs failed due diligence (delay in discovery) and delayed amendment after learning identities | Court: Petitioners failed to show clear legal right to relief; record insufficient to defeat relation back for Stafford and Greene; mandamus denied for those defendants |
| Whether equitable tolling or equitable estoppel prevents statute-of-limitations bar as to MDCI | Plaintiffs: insurer/defense conduct induced delay and concealed identity, warranting tolling/estoppel | Petitioners: communications actually named MDCI and showed no concealment; no extraordinary circumstances or misleading representations | Court: No extraordinary circumstance or concealment shown; equitable tolling/estoppel inapplicable to MDCI |
| Whether mandamus review appropriate to grant summary judgment for VEL (no relation-back question) | Petitioners: VEL not involved — entitled to summary judgment | Plaintiffs: factual disputes exist about VEL’s involvement | Court: Mandamus relief on VEL’s separate non-relation-back claim not appropriate in this mandamus posture; denied as to VEL |
Key Cases Cited
- Ex parte Nicholson Mfg. Ltd., 182 So.3d 510 (Ala. 2015) (relation-back and fictitious-party practice principles)
- Ex parte Mobile Infirmary Ass'n, 74 So.3d 424 (Ala. 2011) (ignorance and due-diligence requirements for Rule 9(h) relation-back)
- Ex parte Snow, 764 So.2d 531 (Ala. 1999) (mandamus relief where statute-of-limitations relation-back failed)
- Ex parte Stover, 663 So.2d 948 (Ala. 1995) (review of trial court denial of summary judgment in relation-back context)
- Ex parte FMC Corp., 599 So.2d 592 (Ala. 1992) (relation-back/mandamus precedent)
- Ex parte Klemawesch, 549 So.2d 62 (Ala. 1989) (mandamus ordering dismissal where relation back fails)
- Ex parte General Motors of Canada Ltd., 144 So.3d 236 (Ala. 2013) (standards for mandamus and relation-back analyses)
- Patterson v. Consolidated Aluminum Corp., 101 So.3d 743 (Ala. 2012) (delay in amending to substitute fictitious parties may defeat relation back)
- Weaver v. Firestone, 155 So.3d 952 (Ala. 2013) (standards for equitable tolling)
- McCormack v. AmSouth Bank, N.A., 759 So.2d 538 (Ala. 1999) (equitable estoppel principles re: tolling statute of limitations)
- Davis v. Mims, 510 So.2d 227 (Ala. 1987) (plaintiff "knew or should have known" test for identity of defendant)