Written by Stephanie Cook, Esq.
Edited by Bill Pfund, Esq.
A somewhat recent decision by the Supreme Court of Virginia has turned the definition of a misnomer upside down and created quite a wave of plaintiffs attempting to save their cause of action by having their mistake of naming the wrong defendant declared a misnomer.
In Hampton v. Meyer, 299 Va. 121 (August 2020), the Supreme Court of Virginia held that the incorrect naming of a defendant in a complaint may be considered a misnomer if the true party to the suit is sufficiently identified in the body of the complaint. The entire complaint as a whole must be considered in examining whether there is a misnomer. Whether a party named in a caption is a proper party to the action is to be determined not merely by how that party is identified in the caption of the pleading, but by the allegations set forth within a pleading that identify that party more specifically.
A misnomer has historically been defined as a mistake in the name, not the identification of a party. Rockwell v. Allman, 211 Va. 560, 561 (1971). A misnomer occurs where the proper party has been identified but incorrectly named. Swann v. Marks, 252 Va. 181, 184 (1996).
A misjoinder, on the other hand, is when the person or entity named in the pleading is not the person by or against whom the action could be or was intended to be brought. Estate of James v. Peyton, 277 Va. 443, 452 (2009).
In Hampton v. Meyer, plaintiff intended to file suit against the driver who caused his injuries, but he used the wrong name. In fact, he sued a completely different person – someone other than the driver. Plaintiff used the name shown in the police report. The police report identified the driver as Michael Meyer, but Michael’s son, Noah Meyer, was the driver. Michael Meyer was the co owner of the vehicle, along with his wife.
The accident happened on December 24, 2016. Plaintiff filed his complaint against Michael Meyer on December 11, 2018. In Virginia, there is a two year statute of limitations for personal injury actions. A few weeks after the statute of limitations ran, plaintiff discovered that the driver
was incorrectly identified. Plaintiff nonsuited the case against Michael Meyer on February 6, 2019 and filed a new complaint against the correct defendant, Noah Meyer, on February 25, 2019. Noah Meyer then filed a Plea in Bar arguing that plaintiff’s new complaint was time barred, since it should have been filed against him by December 23, 2016.
The trial court sustained Noah Meyer’s Plea in Bar. In doing so, it found that naming Michael in the original complaint was a misjoinder rather than a misnomer because Michael and Noah were two, separate individuals. Michael’s name was, therefore, not a mere misspelling of Noah’s.
The Supreme Court of Virginia reversed the circuit court’s decision. The Court found that it was clear from the language in the body of the complaint who plaintiff intended to be the defendant. In looking at the complaint as a whole, the correct party was identified in the body of the complaint as the driver. In sum, the Supreme Court found that the plaintiff sued the correct person but used the wrong name. Therefore, the misnaming of the defendant constituted a misnomer, rather than a misjoinder; and plaintiff’s new complaint was not time-barred by the statute of limitations.
Importantly, the Supreme Court of Virginia reiterated that it was clear from the complaint that plaintiff intended to sue the driver of the other vehicle. The Court focused on the fact that the word “driver” and even “driver of the Suburban” were used repeatedly in the complaint. The
Court further emphasized that it was clear from the complaint who, in terms of the performance of the tortious conduct, was the correct defendant – even though the wrong name was used. Overall, the Court found the complaint when read as a whole “adequately identified” the proper party defendant even though the incorrect name had been used. Therefore, the Court concluded plaintiff sued the correct person but used the wrong name; and there was no mistake of parties, only one of name.
There was a strong and hearty dissent in Hampton v. Meyer, which should not be overlooked. From a defense perspective, the dissenting justices made excellent arguments. For instance, the ruling now, too conveniently, allows plaintiffs to sue a party even though the statute of limitations has run. This obviously prejudices the new defendant.
The dissent also reiterated that a misnomer arises when the right person is incorrectly named, not where the wrong person is named. In Hampton, the owner was clearly not the right person incorrectly named. He was the wrong person correctly named. The dissent examined in detail several, prior Supreme Court decisions which had found a misjoinder rather than misnomer in order to exemplify why and how the majority got it wrong in
Hampton. The dissent focused on the correct definition of misnomer versus misjoinder that was uniformly applied in those preceding cases, which was: “[s]uing the correct person while incorrectly stating his name, constitutes a misnomer. Suing the incorrect person, while correctly
stating his name, constitutes a misjoinder.” The dissent also argued that the misnomer statute, which is Va. Code Ann. § 8.01-6, was not intended to allow a plaintiff to change the person against whom the action is brought. Finally, the dissent correctly pointed out that, in most if not
all of the preceding cases, plaintiffs correctly identified who was intended to be sued in the body of the complaint. Still, the Supreme Court of Virginia had found, in those cases, that the plaintiffs had not mistakenly named the right defendant. Rather, the Court had consistently and previously found that the plaintiffs named the wrong party; and therefore, there was no misnomer. The dissent advocated that “the real party in interest must be named, even if the allegations make clear the identity of the injured party.”
Conceivably, the ruling in Hampton allows all plaintiffs to sue the owner of a vehicle rather than the actual tortfeasor, even if the statute of limitations has run. It could also be expanded to allow all plaintiffs to sue corporation A instead of corporation B and then change or substitute
corporation B as the correct defendant after the statute of limitations has run. The ripple effect of this opinion also includes costs dropping for plaintiffs, since they no longer necessarily have to identify the correct defendant but increasing for defendants as a result of defending baseless
claims.
So … when a plaintiff originally sues the wrong defendant within the statute of limitations, then files for leave to amend or files a new suit altogether in order to name the right defendant after the statute of limitations, is it a misnomer, thereby tolling the statute of limitations and saving plaintiff’s cause of action? Are the courts going to become progressively liberal as a result of this decision by providing plaintiffs with free passes at getting the correct defendant named?
Stay tuned. While we are certainly seeing plaintiff attorneys attempting to save their client’s cause of action by arguing as such, the decision in Hampton v. Meyer is currently being re visited and debated in the Supreme Court of Virginia.