Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.




                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2012-160

                                      SEPTEMBER TERM, 2012

 Jonathan Lasek                                        }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Rutland Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Laurie Celik                                          }    DOCKET NO. 441-6-11 Rdcv

                                                            Trial Judge: Mary Miles Teachout

                          In the above-entitled cause, the Clerk will enter:

        Plaintiff Jonathan Lasek was involved in an automobile accident and filed a timely
complaint against defendant Laurie Celik, alleging that she was the driver of the other vehicle.
Defendant moved for summary judgment on the ground that another person, Barbara Celik, was
the actual driver of the vehicle that struck plaintiff. The trial court granted the motion, and
simultaneously denied plaintiff’s motion to amend the complaint to add Barbara Celik as a
defendant, implicitly rejecting plaintiff’s argument that, although the statute of limitations had
expired, the amendment should be deemed to relate back to the date of the original pleading.
Plaintiff contends the court erred in: (1) granting the motion for summary judgment; and (2)
denying the motion to amend. We find no error in the court’s grant of summary judgment for
Laurie Celik but reverse and remand the denial of the motion to amend the complaint.

        Plaintiff’s complaint alleged that, on June 28, 2008, he was driving on Route 4 in the City
of Rutland when his vehicle was struck from behind by another vehicle that was negligently
operated by defendant Laurie Celik. The complaint was filed on June 24, 2011, just days before
the expiration of the three-year statute of limitations. In her answer, defendant denied the
allegation of negligence and asserted as an “additional defense” that plaintiff’s injuries were
sustained by reason of the negligence “of a person or persons other than this Defendant.”

        When plaintiff noticed defendant’s deposition, defendant moved for a protective order on
the ground that the deposition was unnecessary and oppressive in that plaintiff had sued the
wrong person. In support of the motion, defendant submitted a personal affidavit stating that she
was not the driver of the vehicle that struck plaintiff, and a police “crash report” identifying the
vehicle’s operator as Barbara Celik and its owner as Daniel Celik. In opposing the motion,
plaintiff observed that counsel for defendant’s insurer, Nationwide, had not raised the issue of
the driver’s identity in correspondence with plaintiff’s counsel, and argued that defendant’s
deposition was necessary to further explore the issue. Plaintiff also asserted that, if defendant
was not the driver, the deposition was necessary to examine defendant’s “relationship to the
actual driver” and whether the vehicle had been negligently entrusted.

        The trial court granted the motion for protective order in a brief entry order that stated the
“ruling does not preclude a later deposition of Laurie Celik if legitimate issues arise related to
potential liability as owner.”

        While the motion for protective order was pending, defendant moved for summary
judgment on the basis that she was not operating the vehicle that collided with plaintiff. In
opposition, plaintiff maintained that the identity of the driver remained in dispute, citing a letter
to plaintiff’s first attorney from Nationwide’s claim representative which identified the insureds
as Laurie and Daniel Celik and indicated that Nationwide expected to receive a “demand
package.” Plaintiff also asserted that the police report identifying Barbara Celik as the operator
was inadmissible hearsay, and that defendant’s affidavit was “self-serving.” In addition, plaintiff
asserted that summary judgment was premature because further discovery was necessary to
determine whether defendant, even if not the driver, was aware of any medical condition of
Barbara Celik that might have caused the accident, and to examine defendant’s relationship to
Barbara Celik and the circumstances of her driving of the vehicle. Plaintiff submitted an
affidavit stating that he was told by a police officer at the scene of the accident that the driver
had fainted because she had failed to take her insulin for a diabetes condition.

        While the motion for summary judgment was pending, plaintiff filed a motion to amend
his complaint to add Barbara Celik as a defendant. Although the statute of limitations had since
expired, plaintiff asserted that the amendment should be deemed to relate back to the date of the
original pleading under V.R.C.P. 15(c). Plaintiff argued in this regard that the claim against
Barbara Celik arose out of the same occurrence as that set forth in the original pleading, that
Laurie Celik would have advised the driver, Barbara Celik, of the pending action, and that
Barbara Celik would have been covered under the Nationwide policy as a permissive user.

        The trial court granted defendant’s motion for summary judgment in a brief entry order,
finding that plaintiff’s opposition had failed to “place the critical fact for the case—the driver at
the time of the collision—in dispute.” The court also noted that police report, “while
inadmissible, provided driver information to plaintiff,” and also pointed to the availability of
prefiling discovery under V.R.C.P. 27. Plaintiff’s motion to amend was summarily denied in a
separate order containing no findings and conclusions, and a later motion for reconsideration was
also denied. This appeal followed.

        Plaintiff contends the trial court erred in granting summary judgment because the police
report identifying the operator as Barbara Celik was hearsay and the identity of the other driver
remained a genuine issue in dispute. The trial court made clear, however, that it was not relying
on the substance of the police report, and the court could properly credit defendant’s factual
assertion that she was not the operator of the vehicle where it was not clearly controverted by
any credible documentary evidence or affidavit. Robertson v. Mylan Labs., Inc., 2004 VT 15,




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¶ 15, 176 Vt. 356. Plaintiff alleges that Nationwide misled him as to the identity of the driver,
but proffers no evidence to support this contention. Plaintiff notes that Nationwide, apparently
correctly, identified its named insureds as Laurie and Daniel Celik. Plaintiff does not offer any
evidence that Nationwide represented that Laurie Celik was the driver, or even that Nationwide
was aware that plaintiff assumed that Laurie Celik was the driver because she was the only
female named insured. Accordingly, we find no error in the court’s granting of summary
judgment.

        Defendant also asserts that the granting of summary judgment was premature absent
additional discovery to explore the identity of the driver and—assuming that defendant was not
the driver—to examine defendant’s relationship with Barbara Celik and the circumstances of her
driving the vehicle as they might relate to defendant’s potential liability as the vehicle’s owner.
Plaintiff has not shown, however, that the court abused its discretion in concluding that plaintiff
had been afforded adequate time and opportunity to determine the driver’s identity. See Bushey
v. Allstate Ins. Co., 164 Vt. 399, 405 (1995) (in ruling on motion for summary judgment, court
“need only permit an adequate time for discovery”). Moreover, plaintiff’s complaint contained
no negligent entrustment claim or assertion of vicarious liability, and the motion to amend did
not seek to add any additional factual allegations or causes of action on this basis, although the
court had left open the possibility that plaintiff could amend his complaint to add a claim of
negligent entrustment. Accordingly, we cannot conclude that the court erred in denying
additional discovery. See Chrysler Corp. v. Makovec, 157 Vt. 84, 90 (1991) (noting that “the
purpose of discovery is not to fish through every potential theory of recovery to determine if
there is any factual support for the theory” (emphasis omitted)).

        Finally, plaintiff contends the court erred in denying the motion to amend his complaint
to add Barbara Celik as a defendant. The issue is governed by V.R.C.P. 15(c), which, as relevant
here, provides that an amendment “relates back to the date of the original pleading” when the
following three criteria are met: first, the claim in the amended pleading “arose out of the
conduct, transaction, or occurrence set forth . . . in the original pleading;” second “within the
period provided by Rule 3 for service of the summons and complaint, the party to be brought in
by amendment . . . has received such notice of the institution of the action that the party will not
be prejudiced in maintaining a defense on the merits;” and, finally, the party to be added “knew
or should have known that, but for a mistake concerning the identity of the proper party, the
action would have been brought against the party.”1

        As noted, the trial court’s order denying plaintiff’s motion was silent on the basis of its
ruling. The record leaves little doubt, however, that the first and third criteria would be easily

       1
           Below, defendant invoked our decision in Bashara v. Corliss, 161 Vt. 1 (1993) in
arguing that “The language of V.R.C.P 15(c) unambiguously requires that the real party must
have notice during the period provided by law for commencing an action and makes no provision
for notice during the period for service of process.” As reflected in the Reporter’s Notes, the
1995 amendment to Rule 15(c) effectively superseded this aspect of our decision in the Bashara
case.



                                             3
satisfied in this case. The claim against Barbara Celik as the driver of the vehicle in the accident
clearly rests on the same occurrence that formed the basis of the claim against defendant Laurie
Celik. Moreover, as the driver, Barbara Celik certainly knew or should have known that the
action would have been brought against her but for the mistaken identification of Laura Celik as
the driver. The critical issue, therefore, would appear to concern whether—within the time for
service of the summons and complaint, i.e., within sixty days from the filing of the complaint—
Barbara Celik “received such notice of the institution of the action” that she would be not be
prejudiced by requiring her to defend the action.

         Plaintiff argued in this regard that if, indeed, Laura Celik—the vehicle’s owner—was
mistakenly identified as the operator she would have advised the actual driver, Barbara Celik, of
the filing of the lawsuit. As for the lack of prejudice, plaintiff also argued that, as a permissive
driver, Barbara Celik would be covered under same automobile insurance policy as the owner,
Laura Celik, and Nationwide would therefore be subject to the same duty to investigate and
defend the suit.

        Although plaintiff’s arguments to the trial court were not well supported by any pertinent
authority, courts and commentators have recognized that constructive notice of a lawsuit under
Rule 15(c) may be imputed to an unnamed defendant where there is a sufficient “identity of
interest” with the named defendant. See, e.g., Jimenez v. Toledo, 604 F.2d 99, 102-03 (1st Cir.
1979) (“The identity of interests concept . . . provides that the institution of the action serves as
constructive notice of the action to the parties added after the limitations period expired, when
the original and added parties are so closely related in business or other activities that it is fair to
presume the added parties learned of the institution of the action shortly after it was
commenced.”); see generally 6A C. Wright, et al., Federal Practice and Procedure § 1499, at
194-97 (3d ed. 2010) (“When the named defendant and the party that the plaintiff actually
intended to sue have an ‘identity of interest,’ an amendment adding the proper party will relate
back when if the other requirements of Rule 15[(c)] have been satisfied.”).

        A number of courts have applied this concept outside of the business context, in
circumstances similar to those presented here, to hold that a family relationship and a common
insurance carrier may support the finding of an identity of interest for purposes of imputing
notice of a lawsuit. See, e.g., Philips v. Gieringer, 108 P.3d 889, 894-95 (Alaska 2005) (where
plaintiff involved in automobile accident mistakenly sued driver’s father, court allowed
amendment adding actual driver, holding that notice of lawsuit may be imputed “through a
shared insurance carrier when the insurer is contractually bound to protect the interests of the
insured”); Pan v. Bane, 2006 OK 57, ¶ 20, 141 P.3d 555 (permitting plaintiff who sued parents
of minor driver involved in accident to amend complaint to add driver based on finding that
driver “and her parents have a sufficient identity of interest that notice should be, and is,
imputed to her” based on fact that driver lived at home with parents, were insured by same
carrier, and were represented by same attorney); see also Denver v. Forbes, 26 F.R.D. 614, 616
(E. D. Pa. 1960) (allowing plaintiff injured in auto accident who mistakenly sued driver’s mother
to amend complaint to add driver based on finding that daughter would have been aware of




                                               4
complaint and that “the same insurance company is involved no matter whether the mother or
daughter is sued”).

        The absence of findings or explanation does not allow us to determine the basis of the
trial court’s decision denying plaintiff’s motion to amend, and specifically to ascertain how it
resolved the notice question. Particularly in view of our strong policy favoring the liberal
amendment of pleadings to ensure, whenever possible, a ruling on the merits of a claim, Lillicrap
v. Martin, 156 Vt. 165, 170-71 (1991), we conclude that a reasoned decision is required for
proper review, and therefore reverse the order denying plaintiff’s motion to amend and remand
for further consideration of the motion to amend by the trial court in light of the applicable law.

      The order denying plaintiff’s motion to amend the complaint is reversed, and the matter
remanded for further proceedings. In all other respects, the judgment is affirmed.



                                                 BY THE COURT:


                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice

                                                 _______________________________________
                                                 Brian L. Burgess, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice




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