Weaver v. Firestone, 155 So. 3d 952

Background

In 1995 Firestone was brutally attacked and suffered severe burns; two victims died. He knew he was injured and had a cause of action in 1995.
In 2009–2010 several perpetrators were arrested and pleaded guilty; Firestone alleges he did not learn Weaver’s role until August 9, 2010.
Firestone sued Weaver and others in 2010, alleging conspiracy, assault/battery, attempted murder, outrage, and that defendants fraudulently concealed their identities.
Weaver moved to dismiss under Rule 12(b)(6) and Alabama statutes of limitation (and argued the discovery rule and equitable tolling did not apply).
The trial court denied dismissal, finding Firestone alleged diligence and fraudulent concealment; Weaver appealed by permission.
The Alabama Supreme Court affirmed, holding equitable tolling may apply on these facts (but § 6-2-3’s savings clause does not toll for undiscovered defendant identity alone).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Ala. Code § 6-2-3 (savings clause) tolls the limitations period until the identity of the tortfeasor is discovered	§6-2-3 tolls where fraud/ concealment prevented discovery of the cause and thus should apply to delay identification of tortfeasors	§6-2-3 accrual is triggered by discovery of the cause of action (Firestone knew he was injured in 1995), not by discovery of the tortfeasor’s identity	Reversed for tolling under §6-2-3 — NO. §6-2-3 does not toll merely because the defendant’s identity was concealed; it focuses on discovery of the cause of action.
Whether equitable tolling is available when defendants intentionally concealed their identities, preventing discovery despite plaintiff’s diligence	Equitable tolling should apply because defendants’ fraudulent concealment prevented timely discovery of Weaver’s identity despite Firestone’s diligent efforts	Equitable tolling is unavailable because plaintiff could have filed a fictitious-party (Doe) complaint to preserve the claim	Held: Equitable tolling can apply in extraordinary circumstances of intentional concealment when plaintiff is diligent; trial court properly denied dismissal to allow plaintiff to prove tolling.
Whether filing an unserved fictitious‑party complaint is required to preserve the claim and preclude equitable tolling	Plaintiff need not have filed an unserved Doe complaint where concealment made discovery impossible and equitable tolling conditions otherwise exist	Defendant argues Rule 9(h) Doe practice was available and plaintiff’s failure to name Doe defendants shows lack of diligence	Court: Filing a complaint naming only fictitious parties, without intent/ability to serve, does not commence the action for limitations purposes; Doe-complaint filing cannot be required as a precondition to equitable tolling in these rare cases.
Standard for deciding a Rule 12(b)(6) dismissal on statute-of-limitations grounds	Plaintiff: pleadings allege sufficient facts (diligence + concealment) to survive 12(b)(6) so plaintiff should get a chance to prove tolling	Defendant: statute of limitations bars claims as a matter of law	Court: On 12(b)(6) review, allegations must be accepted as true; because Firestone alleged facts that, if proved, would support equitable tolling, dismissal was improper.

Key Cases Cited

DGB, LLC v. Hinds, 55 So.3d 218 (Ala. 2010) (standard for Rule 12(b)(6) review and §6-2-3 scope)
Ex parte Ward, 46 So.3d 888 (Ala. 2007) (Alabama recognition of equitable tolling in extraordinary circumstances and diligence inquiry)
Pace v. DiGuglielmo, 544 U.S. 408 (2005) (plaintiff bears burden to prove diligence and extraordinary circumstances for equitable tolling)
Bernson v. Browning-Ferris Indus. of Cal., 7 Cal.4th 926 (Cal. 1994) (equitable estoppel/fraudulent concealment can toll limitations when defendant’s intentional concealment prevents discovery of identity)
Fidelity Nat’l Title Ins. Co. v. Howard Sav. Bank, 436 F.3d 836 (7th Cir. 2006) (equitable tolling can postpone suit deadline when plaintiff, despite reasonable diligence, cannot discover injurer’s identity)
Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003) (burden on claimant to show extraordinary circumstances and causal connection to untimeliness)