June 12, 2020




                                                               Supreme Court

                                                               No. 2018-288-Appeal.
                                                               (PC 17-3533)
                                                               (dissent begins on page 9)




                Timothy Frazier                :

                       v.                      :

    Liberty Mutual Insurance Company, alias,   :
            ABC Insurance Company.



                NOTICE: This opinion is subject to formal revision before
                publication in the Rhode Island Reporter. Readers are requested to
                notify the Opinion Analyst, Supreme Court of Rhode Island, 250
                Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
                3258 of any typographical or other formal errors in order that
                corrections may be made before the opinion is published.
                                                                    Supreme Court

                                                                    No. 2018-288-Appeal.
                                                                    (PC 17-3533)
                                                                    (dissent begins on page 9)


                Timothy Frazier                   :

                       v.                         :

  Liberty Mutual Insurance Company, alias,        :
          ABC Insurance Company.


               Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                            OPINION

        Justice Flaherty, for the Court. The plaintiff, Timothy Frazier, appeals from a Superior

Court grant of summary judgment in favor of the defendant, Liberty Mutual Insurance Company.

Frazier contends that the trial justice erred in holding that the statute of limitations barred his claim

for personal injuries that arose from a fall on the property of Liberty Mutual’s insured. This case

came before the Supreme Court for oral argument pursuant to an order directing the parties to show

cause why the issues raised in this appeal should not summarily be decided. After hearing the

arguments of counsel and after thoroughly reviewing the record, we conclude that cause has not

been shown and that this case may be decided without further briefing or argument. For the reasons

set forth in this opinion, we vacate the judgment of the Superior Court.

                                                      I

                                          Facts and Travel

        Frazier alleges that on November 11, 2013, he slipped and fell in the restroom of a Pizza

Hut restaurant that was owned and operated by Mita Enterprises, LLC. On November 2, 2016,

Frazier filed a complaint (the first complaint) in the Superior Court against Mita, seeking



                                                  -1-
compensation for his injuries. Frazier then moved for entry of a default against Mita, claiming

that Mita had been served with process properly but that it had failed to respond to the complaint.

That motion was granted, and default was entered. At a later date, Mita moved to vacate the entry

of default pursuant to Rule 55(c) of the Superior Court Rules of Civil Procedure and to dismiss the

case for insufficient service of process under Rule 12(b)(5). Mita argued that Frazier had

incorrectly served process under the rules governing out of state corporations. On August 4, 2017,

the first trial justice granted Mita’s motions to vacate the default and to dismiss for insufficient

process.1 Significantly, Mita was represented in the first complaint by attorneys engaged by

Liberty Mutual.

       On July 31, 2017, Frazier filed a new complaint (the second complaint) against Mita. This

time, service of process against Mita was returned non est inventus. Frazier then moved to

substitute Liberty Mutual as a defendant, pursuant to Rule 21. Liberty Mutual objected, arguing

in part that the statute of limitations barred Frazier’s claim against it. However, before any action

was taken on Liberty Mutual’s statute of limitations defense, Frazier renewed his motion to

substitute and sought to amend his complaint pursuant to G.L. 1956 § 27-7-2.2 The parties agreed

that Frazier’s motion to amend his complaint to substitute Liberty Mutual for Mita would be

granted, but that Liberty Mutual would reserve its rights to assert any and all defenses. On April

9, 2018, Frazier, pursuant to § 27-7-2, amended his complaint naming Liberty Mutual as defendant.

       Liberty Mutual promptly moved to dismiss the amended complaint, arguing that the statute

of limitations barred Frazier’s action against it. The second trial justice agreed, holding that the




1
  Because these matters were heard by two separate trial justices in the Superior Court, we refer to
each as the “first trial justice” and the “second trial justice,” respectively.
2
  “If the officer serving any process against the insured shall return that process ‘non est inventus’
* * * the injured party * * * may proceed directly against the insurer.” G.L. 1956 § 27-7-2.


                                                -2-
three-year statute of limitations barred Frazier’s direct action against Liberty Mutual. Thus, she

granted summary judgment in favor of Liberty Mutual.3

       Frazier timely appealed.

                                                II

                                       Standard of Review

       “When we review a hearing justice’s grant of a motion for summary judgment, we conduct

our analysis de novo.” Hexagon Holdings, Inc. v. Carlisle Syntec Incorporated, 199 A.3d 1034,

1038 (R.I. 2019). “If we determine that ‘there exists no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law,’ then we will affirm the grant of the

motion.” Id. (brackets omitted) (quoting Sisto v. America Condominium Association, Inc., 68 A.3d

603, 611 (R.I. 2013)). “In this endeavor, ‘we view the evidence in the light most favorable to the

nonmoving party.’” Id. (brackets omitted) (quoting Narragansett Indian Tribe v. State, 81 A.3d

1106, 1109 (R.I. 2014)).

       “It is well settled that ‘the question of whether a statute of limitations has run against a

plaintiff’s claim is a question of law,’ which this Court reviews de novo.” Goddard v. APG

Security-RI, LLC, 134 A.3d 173, 175 (R.I. 2016) (brackets and deletions omitted) (quoting

Ho-Rath v. Rhode Island Hospital, 115 A.3d 938, 942-43 (R.I. 2015)). “This Court also reviews

questions of statutory construction and interpretation de novo.” Id. (brackets omitted) (quoting Ho-

Rath, 115 A.3d at 943).




3
  The second trial justice converted Liberty Mutual’s motion to dismiss into a motion for summary
judgment because Frazier, in his objection to Liberty Mutual’s motion to dismiss, had raised
matters outside the complaint.


                                               -3-
                                                  III

                                               Discussion

       On appeal, Frazier argues that the second trial justice erred when she ruled that the claim

set forth in the amended complaint against Liberty Mutual was barred by the three-year statute of

limitations set forth in G.L. 1956 § 9-1-14(b). More specifically, Frazier argues that the second

trial justice erred when she held that § 9-1-22 (the savings statute) did not preserve Frazier’s claim

against Liberty Mutual for an additional year because Liberty Mutual was a stranger to the first

action that Frazier had filed against Mita.4

       It is clear to us that Frazier’s claim against Liberty Mutual, deprived of the benefit of the

savings statute, would be barred by the statute of limitations. That is so because, generally, for a

personal injury action, the injured party has three years from the date of the injury to file suit. See

Rivers v. American Commerce Insurance Company, 836 A.2d 200, 204 (R.I. 2003) (“It is generally

recognized that ‘a cause of action accrues and the applicable statute of limitations begins to run at

the time of the injury to the aggrieved party.’” (quoting Martin v. Howard, 784 A.2d 291, 299 (R.I.

2001))); see also § 9-1-14(b) (“Actions for injuries to the person shall be commenced and sued

within three (3) years next after the cause of action shall accrue, and not after[.]”). Frazier alleged

that he was injured on November 11, 2013, and, thus, he had until November 11, 2016, three years

later, to file suit against Mita. Additionally, because service of process against Mita was returned

non est inventus, under § 9-1-14(c) Frazier had until March 11, 2017, an additional 120 days, to

file suit directly against Liberty Mutual pursuant to § 27-7-2.5 Here, Frazier timely initiated an



4
  Frazier also argues that the 2009 amendments to G.L. 1956 § 9-1-14 and § 27-7-2 supersede this
Court’s prior interpretations of those statutes. However, we need not address that argument
because we are vacating the judgment of the Superior Court for other reasons.
5
  Section 9-1-14(c), which extends the statute of limitations, says in relevant part:



                                                  -4-
action against Mita on November 2, 2016. However, no action was filed against Liberty Mutual

until April 9, 2018.

       However, in arguing that his opportunity to sue Liberty Mutual pursuant to § 27-7-2

remains viable, Frazier relies on the savings statute, which says:

               “If an action is timely commenced and is terminated in any other
               manner than by a voluntary discontinuance, a dismissal of the
               complaint for neglect to prosecute the action, or a final judgment
               upon the merits, the plaintiff * * * may commence a new action upon
               the same claim within one year after the termination.” Section 9-1-
               22 (emphasis added).6

Thus, Frazier’s action would be timely if the savings statute applies to his claim against Liberty

Mutual by extending the time to file suit an additional year from the date of the dismissal of the

first action on August 4, 2017.

       Not so fast, says Liberty Mutual. The insurance carrier argues, as it did in the Superior

Court, that this Court’s holding in Luft v. Factory Mut. Liability Ins. Co. of America, 51 R.I. 452,

155 A. 526 (1931), remains a barrier to the application of the savings statute in this case. In Luft,

we said:

               “There is no merit in the plaintiffs’ further contention that they may
               prosecute their suits under provision of section 9, chapter 334, G. L.
               1923, which permits the bringing of a new suit within one year if the
               original action was for any cause abated. That statute is not


               “As to an action for personal injuries wherein an injured party is
               entitled to proceed against an insurer pursuant to § 27-7-2, where an
               action is otherwise properly filed against an insured within the time
               limitations provided for by this section, and process against the
               insured tortfeasor has been returned ‘non est inventus’ and filed with
               the court, then the statutory limitation for filing an action under
               § 27-7-2 directly against an insurer shall be extended an additional
               one hundred twenty (120) days after the expiration of the time
               limitation provided for in subsection (b) herein.”
6
  At oral argument, counsel for Liberty Mutual conceded that the suit against Liberty Mutual was
for the same claim as the earlier suit brought solely against Mita.


                                                -5-
                applicable in the case of a defendant which was a stranger to the
                original action. Luft, 51 R.I. at 455, 155 A. at 527 (emphasis added)
                (citing Mockel v. Pawtucket Gas Co. of New Jersey, 48 R.I. 485, 139
                A. 308 (1927)).

Essentially, our holding in Luft was that the savings statute could not be employed to extend the

statute of limitations for actions against a party who “was a stranger to the original action.” Id.

Additionally, in Luft, this Court held that the defendant insurance company was a stranger to an

original action brought against its insured. Id. Therefore, Liberty Mutual argues that, if we were

simply to apply the holding of Luft to the case before us, the savings statute would not benefit

Frazier’s claim against Liberty Mutual.

        Although we agree with the central holding of Luft that the savings statute cannot be used

to extend the statute of limitations for an action against a party that was a stranger to the original

action, modern society and evolving jurisprudence present a different view of whether an insurer

that makes an appearance on behalf of its insured, even specially to contest jurisdiction over the

insured, is a stranger to an original action against its insured. It is our opinion that, because an

insurance company and its insured are sufficiently linked, an insurance company is not, under

these circumstances, a stranger to the original action against its insured. We observe that the

holding in Luft is 89 years old, that there is a paucity of facts set forth in that opinion, and that the

language that Liberty Mutual clings to is but one unconnected sentence in the opinion.7 Therefore,

we are constrained to overrule Luft to the extent that Luft is inconsistent with this opinion.

        In reaching this conclusion, we note that the savings statute is remedial in nature and

therefore should be liberally applied. See McLaughlin v. Dunlop, 70 R.I. 155, 162, 38 A.2d 157,

158 (1944). As such, we must be mindful not to unduly restrict the applicability of the savings



7
 It is worth noting that the language of the savings statute, § 9-1-22, does not specify who the
parties are, but rather refers to “a new action upon the same claim[.]” (Emphasis added.)


                                                  -6-
statute, especially in light of new circumstances that have arisen since we decided Luft. In today’s

world, insurance companies open files on reported claims and begin an investigation promptly. In

this case, it cannot be disputed that Liberty Mutual was aware of the lawsuit, because it dispatched

lawyers to ask the court to dismiss the first action on grounds of inadequate service of process

upon its insured, Mita.

        Our view finds support from the Supreme Court of Iowa in Beilke v. Droz, 316 N.W.2d

912 (Iowa 1982). In Beilke, the court was presented with a certified question from the United

States Court of Appeals for the Eighth Circuit that asked “[w]hether the parties in this suit are ‘the

same’ for purposes of the Iowa Code Ann. § 614.10.” Beilke, 316 N.W.2d at 912, 913. The lawsuit

was a wrongful death action in which the decedent’s estate initially filed suit against the alleged

tortfeasors’ insurance company.8 Id. at 912. When the case was dismissed, the plaintiffs then filed

suit against the alleged tortfeasors. Id. at 912-13. Because the plaintiff’s claim was by that time

barred by the Iowa statute of limitations, the plaintiff argued that the Iowa savings statute preserved

its claim against the alleged tortfeasors.9 Id. at 913. In determining whether the Iowa savings

statute applied to two different parties, the court said:

                “Courts hold generally * * * that the requirement of identity of
                parties is met if the change in parties is merely nominal or if the



8
  Although we are uncertain as to why the plaintiffs in Beilke v. Droz, 316 N.W.2d 912 (Iowa
1982), filed suit against the insurance company first, we presume that such an action may have
been permissible in Wisconsin, where the initial litigation was filed, but not in Iowa, because this
action was originally filed and then dismissed in a federal district court in Wisconsin. See Beilke,
316 N.W.2d at 912.
9
  The Iowa savings statute at issue in Beilke provides:

                “If, after the commencement of an action, the plaintiff, for any cause
                except negligence in its prosecution, fails therein, and a new one is
                brought within six months thereafter, the second shall, for the
                purposes herein contemplated, be held a continuation of the first.”
                Iowa Code Ann. § 614.10 (West 2020).


                                                 -7-
                interest represented in the second action is identical with that in the
                first one.” Id. at 914.

The court held that “when the third party * * * obtain[s] judgment against the insured, the insurer

must pay it to the extent of the policy limits” and, at least to the extent of the policy limits, the

insured and its insurer share an identical interest. Id.

        We are persuaded by the reasoning of the Supreme Court of Iowa. We have said that the

statute authorizing direct action against an insurance company “places the injured person in

precisely the same position with relation to the insurer that the insured would have held had he

paid the judgment and thereafter sought indemnity under the policy.” Hunt v. Century Indemnity

Co., 58 R.I. 336, 343, 192 A. 799, 803 (1937). Thus, an insurance company and its insured share

a sufficient commonality of interest, in the context of this case, for us to consider them sufficiently

linked under the savings statute.

        We therefore agree with Frazier that the second trial justice erred in holding that the savings

statute did not apply to Frazier’s claim against Liberty Mutual. Thus, it is our opinion that

summary judgment should not have been granted in favor of Liberty Mutual.

                                                  IV

                                             Conclusion

        For the reasons set forth in this opinion, we vacate the judgment of the Superior Court. The

record shall be remanded to the Superior Court.




                                                  -8-
       Justice Indeglia, dissenting. While I agree with the majority’s characterization of this

Court’s holding in Luft v. Factory Mut. Liability Ins. Co. of America, 51 R.I. 452, 155 A. 526

(1931), I disagree with the contention that we should depart from longstanding precedent and

disregard the principles of stare decisis. See State v. Beauregard, 198 A.3d 1, 12 (R.I. 2018) (“The

doctrine of ‘stare decisis is important because respect for precedent promotes the evenhanded,

predictable, and consistent development of legal principles, fosters reliance on judicial decisions,

and contributes to the actual and perceived integrity of the judicial process.’”) (brackets omitted)

(quoting State v. Knapp, 700 N.W.2d 899, 924 (Wis. 2005) (Wilcox, J., dissenting)). Therefore, I

respectfully dissent.

       This Court has noted that “courts should adopt the reasoning of earlier judicial decisions if

the same points arise again in litigation.” Woonsocket School Committee v. Chafee, 89 A.3d 778,

792 (R.I. 2014) (quoting State v. Werner, 865 A.2d 1049, 1056 (R.I. 2005)). Additionally, “[w]e

have previously stated that ‘this Court always makes a concerted effort to adhere to existing legal

precedent.’” Id. (quoting Pastore v. Samson, 900 A.2d 1067, 1077 (R.I. 2006)).

       Indeed, in Luft, we held that the savings statute could not be employed to extend the statute

of limitations for actions against a party who “was a stranger to the original action.” Luft, 51 R.I.

at 456, 155 A. at 527 (emphasis added) (citing Mockel v. Pawtucket Gas Co. of New Jersey, 48

R.I. 485, 139 A. 308 (1927)). Although this Court did not expand on the meaning of the term

“stranger” in Luft, Mockel is illustrative. In Mockel, the plaintiff filed suit against two defendant

corporations for negligence, “the Pawtucket Gas Company, of New Jersey, a New Jersey

corporation, * * * and Blackstone Valley Gas & Electric Company, a Rhode Island corporation,”

alleging that he had been struck by one of their trucks. Mockel, 48 R.I. at 486, 139 A. at 309.




                                                -9-
       At trial, the sole witness testified that he was the treasurer for the Pawtucket Gas Company

of New Jersey, and that he was also the treasurer for a Rhode Island corporation named “the

Pawtucket Gas Company.” Mockel, 48 R.I. at 487, 139 A. at 309. The witness testified that the

New Jersey corporation “was a holding company” for the Rhode Island corporation, that the New

Jersey corporation did not do business in Rhode Island, and that it was “the Rhode Island

corporation [that] owned and operated trucks” in Rhode Island. Id. After the conclusion of the

evidence, the plaintiff moved to have the Rhode Island corporation added as a defendant. Id. This

Court held that, despite the possibility that the Rhode Island corporation had notice of the suit, “the

Rhode Island corporation would be a new party in th[e] suit,” and could not “now be joined by

addition to the original suit after the statutory period for bringing suit ha[d] elapsed.” Id. at 488,

490, 139 A. at 310 (emphasis added).

       Turning to the plain language of the term, “stranger” is defined as “[s]omeone who is not

party to a given transaction; esp[ecially] someone other than a party or the party’s employee, agent,

tenant, or immediate family member.” Black’s Law Dictionary 1718 (11th ed. 2019). According

to The American Heritage Dictionary, the term “stranger,” at law, is “[o]ne that is neither privy

nor party to a title, act, or contract.” The American Heritage Dictionary of the English Language

1723 (5th ed. 2011). Based on our prior caselaw and the plain language of the term “stranger,” I

have little doubt that this Court, in Luft, used that term to refer to a named party.

       Despite the majority’s insistence that Luft is “89 years old” and that “the language that

Liberty Mutual clings to is but one unconnected sentence in the opinion[,]” such observations do

not support departing from this Court’s prior precedent. This is especially true because this Court

reaffirmed Luft, albeit on other grounds, in 2003 and again in 2006. See DeSantis v. Prelle, 891

A.2d 873, 878 (R.I. 2006) (“This Court’s reasoning in Luft merits republication[.]”); Rivers v.




                                                - 10 -
American Commerce Insurance Company, 836 A.2d 200, 204 (R.I. 2003) (“The reasoning in the

case invoked by defendant, Luft, remains sound and we see no reason to depart from it.”).

Therefore, in my opinion, this Court should make its “concerted effort to adhere to existing legal

precedent[,]” and apply the meaning of the term “stranger” as previously set out in our

jurisprudence. Chafee, 89 A.3d at 792 (quoting Pastore, 900 A.2d at 1077).

        While the majority finds support for its view in Beilke v. Droz, 316 N.W.2d 912 (Iowa

1982), a plethora of other states have held contrarily to such a conclusion and in harmony with

Luft. See, e.g., Corliss v. City of Fall River, 397 F. Supp. 2d 260, 267 (D. Mass. 2005) (applying

Massachusetts law and holding that the renewal statute “cannot save any renewed claims against

* * * unnamed and consequently unserved defendants”); Costello v. Bothers, 629 S.E.2d 599, 602

(Ga. Ct. App. 2006) (“The renewal statute may not be used to suspend the running of the statute

of limitation as to defendants different from those originally sued.”).

        Although the majority notes that the savings statute is remedial in nature and should be

applied liberally, we must remember that plaintiffs are already given the statutory benefit of an

extra 120 days after the expiration of the three-year statute of limitations to file suit directly against

an insurer after process against the insured tortfeaser has been returned non est inventus. See G.L.

1956 § 9-1-14(c). Extending the savings statute to include insurance companies that were not a

named party to the original action now provides the plaintiff with an additional one year, plus 120

days, tacked onto the statute of limitations. See §§ 9-1-14(c) and 9-1-22. I worry that such a

decision will ultimately have a negative financial impact for consumers because of the increase in

potential liability that insurance companies may face. Such a cost will surely increase the risk to

insurance companies and will be factored into insurance rates, thus passing the cost of the increased

risk along to consumers in the form of increasing insurance rates.




                                                  - 11 -
        It is my firm belief that, in the present case, as in Luft, Liberty Mutual was a stranger to the

original action because they were not a party to such action. Frazier alleged that an injury occurred

on November 11, 2013, and filed a first complaint in an action against Mita on November 2, 2016,

followed by a second complaint against Mita in a second civil action on July 31, 2017. Notably,

Liberty Mutual was not named as a party in either of those two complaints. The plaintiffs were

allowed the benefit of an additional 120 days to file suit against Liberty Mutual after process

against Mita was returned non est inventus, however, they chose to sit on their hands and did not

file suit against Liberty Mutual until April 9, 2018, well after the statute of limitations had expired.

Accordingly, I would conclude, as this Court did in Luft, that the savings statute cannot be used to

extend the statute of limitations against “a defendant which was a stranger to the original action”

and that Frazier cannot take advantage of the savings statute because Liberty Mutual was not a

party to the original action. See Luft, 51 R.I. at 456, 155 A. at 527.

        Accordingly, for the foregoing reasons, I must respectfully dissent.




                                                 - 12 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

                                     Timothy Frazier v. Liberty Mutual Insurance
Title of Case
                                     Company, alias, ABC Insurance Company.
                                     No. 2018-288-Appeal.
Case Number
                                     (PC 17-3533)
                                     June 12, 2020
Date Opinion Filed
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Francis X. Flaherty
                                     Providence County Superior Court
Source of Appeal
                                     Associate Justice Melissa A. Long
Judicial Officer From Lower Court
                                     For Plaintiff:

                                     Lauren E. Jones, Esq.
                                     Leonard M. Cordeiro, Esq.
Attorney(s) on Appeal
                                     Robert S. Thurston, Esq.
                                     For Defendant:

                                     Joseph-Anthony DiMaio, Esq.




SU-CMS-02A (revised June 2016)
