                                   IN THE
              ARIZONA COURT OF APPEALS
                                DIVISION ONE


       DIANE M. FLYNN and ROBERT FLYNN, wife and husband,
                       Plaintiffs/Appellants,

                                       v.

                SARAH W. CAMPBELL, Defendant/Appellee.

                            No. 1 CA-CV 15-0278
                              FILED 7-19-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV2014-055536
           The Honorable Thomas L. LeClaire, Judge (Retired)

                      REVERSED AND REMANDED


                                  COUNSEL

Burch & Cracchiolo, P.A., Phoenix
By Daryl Manhart, Melissa I. Julian
Co-Counsel for Plaintiffs/Appellants

Friedl & Richardson, Phoenix
By Thomas M. Richardson
Co-Counsel for Plaintiffs/Appellants

Jones, Skelton & Hochuli, P.L.C., Phoenix
By Jonathan P. Barnes, Jr.
Counsel for Defendant/Appellee
                          FLYNN v. CAMPBELL
                           Opinion of the Court



                                OPINION

Judge Patricia K. Norris delivered the opinion of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.


N O R R I S, Judge:

¶1           This appeal arises out of an order entered by the superior
court finding plaintiff/appellant Diane Flynn’s negligence claim time
barred because her amended complaint did not “relate back” to her original
complaint under Arizona Rule of Civil Procedure 15(c). Because Flynn sued
the wrong party, defendant/appellee Sarah Campbell’s insurance carrier,
based on a mistake cognizable under that rule, we reverse and remand for
further proceedings.

             FACTS AND PROCEDURAL BACKGROUND

¶2             On October 17, 2012, Flynn sustained physical injuries arising
out of a car accident with Campbell. At the accident scene, a police officer
gave Flynn a “crash report” that identified Campbell’s insurance carrier,
the policy number, and the insurance carrier’s telephone number. Using
this information, Flynn contacted Campbell’s insurance carrier, State Farm
Mutual Automobile Insurance Company.

¶3             On October 16, 2014, one day before the two-year statute of
limitations expired, Flynn, representing herself, sued State Farm. See Ariz.
Rev. Stat. (“A.R.S.”) § 12-542(1) (2016) (two-year limitations period for
personal injury claims). Flynn alleged that after the collision, State Farm
had “assumed full responsibility for its insured’s actions” and because of
its insured’s actions, she had suffered various injuries and “losses.”

¶4            State Farm moved to dismiss the complaint (“original
motion”) with prejudice under Arizona Rule of Civil Procedure 12(b)(6),
arguing Flynn did not have a cause of action against it because “in Arizona
there is no right of direct action against an insurance carrier for damages
claimed as a result of an accident with one of its insureds.” Before the
superior court could rule on the original motion, Flynn retained counsel,




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                           FLYNN v. CAMPBELL
                            Opinion of the Court
and on November 24, 2014, filed an amended complaint.1 The amended
complaint dropped State Farm as a defendant and named Campbell (plus
several fictitious parties) as defendants.2

¶5            On December 22, 2014, Campbell moved to dismiss the
amended complaint under Rule 12(b)(6), arguing it did “not ‘relate back’
under Rule 15(c)” and thus Flynn’s negligence claim was time barred. The
superior court granted the motion, finding Flynn “committed a mistake of
law [and] not a mistake of fact” because she was “aware of the identity of
the driver.”3 See infra ¶ 9.

                               DISCUSSION

¶6            Flynn argues she made a mistake cognizable under Rule 15(c),
and not merely a mistake of law, by naming State Farm in the original
complaint rather than Campbell, and thus, because she met the other
requirements of Rule 15(c), her amended complaint related back to her
original complaint. Reviewing this issue of law de novo, we agree. Pargman
v. Vickers, 208 Ariz. 573, 578, ¶ 22, 96 P.3d 571, 576 (App. 2004)
(interpretation of Rule 15(c) is an issue of law reviewed de novo).

¶7             Rule 15(c) is designed to “ameliorate the effect of the statute
of limitations” when three conditions are met. Tyman v. Hintz Concrete, Inc.,
214 Ariz. 73, 74, ¶ 9, 148 P.3d 1146, 1147 (2006). Rule 15(c) provides, in
relevant part:




              1Subsequently, the superior court deemed the original motion
moot “in light of the [a]mended [c]omplaint.”

              2Flynn’s amended complaint named her husband, Robert
Flynn, as an additional plaintiff.

              3In  opposing the motion, Flynn submitted an affidavit in
which she discussed, in general terms, the Flynns’ communications with
State Farm. The superior court viewed the affidavit as “extrinsic evidence”
outside of the pleadings and did not consider it in ruling on the motion. See
Ariz. R. Civ. P. 12(b). Accordingly, we have not considered the affidavit in
resolving this appeal. Nevertheless, we note that in addition to the original
complaint, a superior court may properly consider other evidence
submitted by the parties in deciding whether a new defendant was omitted
because of a mistake concerning the identity of the proper party. Tyman v.
Hintz Concrete, Inc., 214 Ariz. 73, 76-77, ¶ 22, 148 P.3d 1146, 1149-50 (2006).


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                            Opinion of the Court
              Whenever the claim or defense asserted in the
              amended pleading arose out of the conduct,
              transaction, or occurrence set forth or attempted
              to be set forth in the original pleading, the
              amendment relates back to the date of the
              original pleading. An amendment changing the
              party against whom a claim is asserted relates
              back if the foregoing provision is satisfied and,
              within the period provided by law for
              commencing the action against the party to be
              brought in by amendment, plus the period
              provided by Rule 4(i) for service of the
              summons and complaint, the party to be
              brought in by amendment, (1) 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 (2) 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.

¶8              Here, the first requirement of Rule 15(c)—that the claim in the
amended pleading arose “out of the conduct, transaction, or occurrence”
alleged in the original complaint—is not at issue because the amended
complaint clearly involved the same car accident described in the original
complaint. The second requirement—“notice of the institution of the
action” to the new defendant within the statute of limitations “plus the
period provided by Rule 4(i) for service of the summons and complaint”—
also is not at issue. State Farm received notice of the institution of the action
within the two-year statute of limitations plus 120 days (the period
provided by Rule 4(i) for service of the summons and complaint), and its
notice was imputed to its insured, Campbell. See Pargman, 208 Ariz. at 579-
81, ¶¶ 30-40, 96 P.3d at 577-79 (insurer’s notice of an action imputed to its
insured’s estate).4




              4In  a footnote, Campbell argues Flynn “waived the ‘imputed
notice’ issue . . . by failing to raise it in the trial court.” We disagree.
Campbell’s motion to dismiss focused solely on whether Flynn’s “mistake”
was one recognized under Rule 15(c). Thus, Campbell had no reason to
argue the imputed notice and knowledge issue, which explains why the
superior court never addressed it.


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                            FLYNN v. CAMPBELL
                             Opinion of the Court
¶9             This case turns, then, on whether Flynn committed a mistake
cognizable under Rule 15(c) in naming State Farm instead of Campbell in
the original complaint, and if so, whether Campbell, through State Farm,
“knew or should have known that, but for” Flynn’s mistake “concerning
the identity of the proper party,” she would have been named in the
original complaint. See id. at 577, ¶¶ 18-20, 96 P.3d at 575 (insurer’s
knowledge of cognizable Rule 15(c) mistake imputed to its insured’s estate);
Levinson v. Jarrett ex rel. Cty. of Maricopa, 207 Ariz. 472, 475-76, ¶ 12, 88 P.3d
186, 189-90 (App. 2004) (a cognizable “mistake” is “clearly still required”
before determining whether defendant “knew or should have known that,
but for [the] mistake,” the action would have been brought against the
defendant). In deciding whether Flynn’s error in naming State Farm
instead of Campbell was a “mistake concerning the identity of the proper
party” under Rule 15(c), the superior court found that because Flynn was
“aware of the identity of the driver of the vehicle that was involved in the
car crash,” but “elected to bring [her] suit against the insurance company,”
she “committed a mistake of law not a mistake of fact,” and therefore her
error was not cognizable under Rule 15(c). We disagree with the superior
court that Flynn’s mistake was not cognizable under Rule 15(c).

¶10            “To decide whether a Rule 15(c)(2) ‘mistake’ has occurred, the
court must determine ‘whether, in a counterfactual error-free world, the
action would have been brought against the proper party.’” Tyman, 214
Ariz. at 76, ¶ 19, 148 P.3d at 1149 (quoting Leonard v. Parry, 219 F.3d 25, 29
(1st Cir. 2000)). Thus, “‘what the plaintiff knew (or thought he knew) at the
time of the original pleading generally is the relevant datum in respect to
the question of whether a mistake concerning identity actually took place.’”
Id. (quoting Leonard, 219 F.3d at 29). Moreover, “we start from the
assumption that, ‘by definition, every mistake involves an element of
negligence, carelessness, or fault.’” Id. at 76, ¶ 20, 148 P.3d at 1149 (quoting
Leonard, 219 F.3d at 29). Accordingly, “Rule 15(c) ‘encompasses both
mistakes that were easily avoidable and those that were serendipitous.’” Id.
(quoting Leonard, 219 F.3d at 29).

¶11           Not every omission of a defendant from an original pleading
is a mistake cognizable under Rule 15(c)(2). Tyman, 214 Ariz. at 76, ¶ 21,
148 P.3d at 1149. Rule 15(c)(2) “does not cover a deliberate decision not to
sue a party whose identity plaintiff knew from the outset,” nor does it cover
“a mistake of law by counsel regarding whom to name in a lawsuit.” Id.
(internal quotations and citations omitted). Nor is there a Rule 15(c)
mistake “when defendants are added because of a new legal theory or to
replace fictitious defendants.” Id. (internal quotations and citations
omitted).



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                            FLYNN v. CAMPBELL
                             Opinion of the Court
¶12           Arizona’s Rule 15(c) is modeled on Federal Rule of Civil
Procedure 15(c). Id. at 74, ¶ 9, 148 P.3d at 1147. In Krupski v. Costa Crociere
S.p.A., 560 U.S. 538, 548, 130 S. Ct. 2485, 2494, 177 L. Ed. 2d 48 (2010), the
United States Supreme Court discussed the type of “mistake” cognizable
under Rule 15(c). The Court stated a “mistake is an error, misconception,
or misunderstanding; an erroneous belief.” Id. (internal quotations and
citation omitted). It further explained that a Rule 15(c) mistake can include
a misconception or misunderstanding regarding the roles played by
prospective defendants:

               That a plaintiff knows of a party’s existence
               does not preclude her from making a mistake
               with respect to that party’s identity. A plaintiff
               may know that a prospective defendant—call
               him party A—exists, while erroneously
               believing him to have the status of party B.
               Similarly, a plaintiff may know generally what
               party A does while misunderstanding the roles
               that party A and party B played in the “conduct,
               transaction, or occurrence” giving rise to her
               claim. If the plaintiff sues party B instead of
               party A under these circumstances, she has
               made a “mistake concerning the proper party’s
               identity” notwithstanding her knowledge of the
               existence of both parties. The only question
               under Rule 15(c)(1)(C)(ii), then, is whether party
               A knew or should have known that, absent
               some mistake, the action would have been
               brought against him.

Id. at 549, 130 S. Ct. at 2494; see also Sundevil Power Holding, LLC v. Ariz. Dep’t
of Revenue, No. 1 CA-TX 15-0001, 2016 WL 3673027, at *6, ¶ 22 (Ariz. App.
July 7, 2016) (citing Krupski and recognizing plaintiff may know a
prospective defendant exists, but nevertheless misunderstand prospective
defendant’s status or role in events giving rise to the claim).

¶13           Here, Flynn knew Campbell—not State Farm—had caused
the accident. But, as is clear from her original complaint, Flynn failed to
appreciate—from a factual standpoint—State Farm’s role. In her original
complaint, Flynn alleged—as a factual matter—that State Farm had
“assumed full responsibility for its insured’s actions.” Thus, although she
knew Campbell had caused the accident, she alleged State Farm had
assumed responsibility, and thus liability for Campbell’s actions. Under
these circumstances, Flynn, by suing State Farm instead of Campbell,


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                           FLYNN v. CAMPBELL
                            Opinion of the Court
“made a mistake concerning the proper party’s identity notwithstanding
her knowledge of the existence of both parties.” Krupski, 560 U.S. at 549,
130 S. Ct. at 2494. Accordingly, Flynn made a mistake cognizable under
Rule 15(c).

¶14            Citing Tyman, Campbell nevertheless argues Flynn was
“never under any misimpression that State Farm was somehow liable for
the accident.” Rather, according to Campbell, Flynn “knew State Farm was
not liable, given that they were fully aware of [] Campbell’s identity ‘from
the outset.’” Tyman does not support Campbell’s argument.

¶15           As discussed, under Tyman, “the relevant datum in respect to
the question of whether a mistake concerning identity actually took place”
is what Flynn “knew (or thought [s]he knew)” when she filed the original
complaint. 214 Ariz. at 76, ¶ 19, 148 P.3d at 1149. It is apparent from the
original complaint that Flynn thought State Farm, by “assum[ing] full
responsibility for” Campbell’s actions, was responsible for the accident.
Contrary to Campbell’s argument, Flynn did not strategically choose to sue
State Farm instead of Campbell simply because Flynn knew of Campbell’s
existence. As the Supreme Court explained in Krupski, that Flynn may have
known of Campbell’s existence “does not foreclose the possibility that she
nonetheless misunderstood crucial facts regarding the” role of State Farm
and Campbell. 560 U.S. at 555, 130 S. Ct. at 2497. As in Krupski, the face of
the original complaint shows that Flynn believed she had sued the proper
party—the party assuming full responsibility and liability for Campbell’s
actions.

¶16           Unlike the situation in Tyman, where the plaintiff named
fictitious defendants in the original complaint because she “could not
discover the responsible parties” before the statute of limitations expired,
the original complaint reflects Flynn thought she knew the identity of the
proper responsible party, State Farm. 214 Ariz. at 77, ¶ 24, 148 P.3d at 1150.
But, as discussed, Flynn was mistaken as to the identity of the proper party
to name. And, based on Flynn’s allegations in the original complaint, see
supra ¶ 3, it appears that State Farm may have contributed to Flynn’s
confusion over the proper party to sue. Krupski, 560 U.S. at 556, 130 S. Ct.
at 2498. Nothing in the record suggests Flynn failed to name Campbell
sooner because of anything other than a mistake in identity.

¶17           Flynn’s initial pro se status further supports our conclusion
that she made a mistake cognizable under Rule 15. Although we hold self-
represented parties to the same standards as attorneys with respect to
familiarity with required procedures and rules, In re Marriage of Williams,
219 Ariz. 546, 549, ¶ 13, 200 P.3d 1043, 1046 (App. 2008), a plaintiff’s pro se


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                           FLYNN v. CAMPBELL
                            Opinion of the Court
status is relevant in assessing what the plaintiff knew or thought she knew
at the time of the original pleading. Tyman, 214 Ariz. at 76, ¶ 19, 148 P.3d
at 1149. “A party’s ignorance of the law is not an excuse for failing to
comply with it,” In re Marriage of Williams, 219 Ariz. at 549, ¶ 13, 200 P.3d at
1046, but such ignorance may inform the question of whether that party
made a cognizable Rule 15 mistake. Olutayo v. Husic, No. 15 C 2109, 2016
WL 687907, at *3 (N.D. Ill. Feb. 19, 2016) (plaintiff’s failure to sue proper
party “was not a well-informed, deliberate decision, but rather . . . an error,
misunderstanding, or misconception, especially in light of [p]laintiff’s pro se
status”) (emphasis added). When the applicable rule requires a court to
assess what a particular plaintiff knew “or thought he knew” at the time he
filed the original complaint, that plaintiff’s pro se status becomes a relevant
part of the “datum.” See supra ¶ 10.

¶18           Turning to the final requirement of Rule 15(c), the record
shows Campbell, through State Farm, “knew or should have known that,
but for a mistake concerning the identity of the proper party,” Flynn would
have named her as the defendant in the original complaint. Through the
original complaint, State Farm, and thus Campbell, knew Flynn believed
Campbell had caused the accident. Campbell, through State Farm, also
knew or should have known Flynn believed State Farm, by “assum[ing] full
responsibility for” her actions, was liable for the accident. Given State
Farm’s understanding that Arizona is not a “direct action” state, Campbell,
through State Farm, knew or should have known that Flynn—acting
without counsel—had sued State Farm and not her because Flynn was
“harbor[ing] a misunderstanding about [Campbell’s] status or role in the
events giving rise to the claim at issue, and she mistakenly [chose] to sue
[State Farm] based on that misimpression.” Krupski, 560 U.S. at 549, 130 S.
Ct. at 2494. Further, Campbell “has articulated no strategy that [she] could
reasonably have thought [Flynn] was pursuing in suing a defendant that
was legally unable to provide relief.” Krupski, 560 U.S. at 555, 130 S. Ct. at
2497.

¶19            Accordingly, based on this record considered by the
superior court, Campbell, through State Farm, knew or should have known
that but for a mistake in identity, Flynn would have named her in the
original complaint. See Pargman, 208 Ariz. at 577, ¶ 18, 96 P.3d at 575.

                               CONCLUSION

¶20          Flynn’s amended complaint related back to the original
complaint and was not time barred. Thus, we reverse the superior court’s
order dismissing Flynn’s complaint and remand for further proceedings.
As the successful party on appeal, we award Flynn her costs on appeal


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                        FLYNN v. CAMPBELL
                         Opinion of the Court
pursuant to A.R.S. § 12-341 (2016), contingent upon her compliance with
Arizona Rule of Civil Appellate Procedure 21.




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