Milos v. Doe
950 N.E.2d 592
Ohio Ct. App.2011Background
- Milos filed a motor-vehicle injury action naming 'Nationwide Insurance Company' and a Nationwide address; service occurred and Nationwide appeared.
- Initial action was voluntarily dismissed under Civ.R. 41(A) in Nov 2008; case refiled Oct 22, 2009 within saving statute (R.C. 2305.19).
- Refiled complaint was almost identical and again identified Nationwide Insurance Company as defendant; service at Nationwide address occurred.
- On Jan 8, 2010 Milos amended to properly name 'Nationwide Mutual Insurance Company'; defendant objected to amendment and timeliness.
- Trial court granted leave to amend but dismissed, finding improper service in original action and that amendment was not a refiled matter or timely.
- Appellate court reversed, holding Civ.R. 15(C) permits relation back for misnomer if appropriate conditions are met; case remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May Civ.R. 15(C) relate back for a misnomer defendant? | Milos argues misnomer allowed relation back to original pleading. | Nationwide contends no relation back because original action not properly commenced. | Yes; Civ.R. 15(C) allows relation back. |
| Is the refiled action timely due to relation back? | Relation back preserves timeliness within statute of limitations. | Timeliness not preserved; misnomer defeats proper commencement. | Yes; relation back makes amended complaint timely. |
| Did Hardesty control the outcome? | Hardesty supports relation back when defendant served under misnomer. | Hardesty not controlling or distinguishable. | Hardesty controls; relation back permitted. |
Key Cases Cited
- Hardesty v. Cabotage, 1 Ohio St.3d 114 (1982) (relation back of amended complaint after dismissal when defendant properly served under misnomer)
- Bentz v. Carter, 55 Ohio App.3d 120 (1988) (amendment related back to original complaint where misidentification occurred)
- Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141 (2007) (service/inadvertent misnomer; related to original pleading)
- Griesmer v. Allstate Ins. Co., 2009-Ohio-725 (2009) (distinguishes adding a new party from correcting misnomer with service)
- Dietrich v. Widmar, 2005-Ohio-2004 (2005) (cite for related discussions but not controlling; WL absence noted)