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Phillips v. Gieringer (03/11/2005) sp-5878
Phillips v. Gieringer (03/11/2005) sp-5878
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
TRACI A. PHILLIPS and )
GREGORY PHILLIPS, ) Supreme Court No. S-10909
)
Appellants, ) Superior Court No.
) 3AN-01-08965 CI
v. )
) O P I N I O N
CARL S. GIERINGER, )
) [No. 5878 - March 11, 2005]
Appellee. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Robert A. Rehbock, Rehbock &
Rehbock, Anchorage, for Appellants. Joe M.
Huddleston and Laurence P. Keyes, Hughes
Thorsness Powell Huddleston & Bauman LLC,
Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
Traci Phillips was involved in an automobile accident
with Carl Gieringer, who was insured under the same State Farm
auto insurance policy as his father, Robert Gieringer. After
some negotiation and discussion of the case with State Farm,
Phillips mistakenly named Carls father as the defendant driver in
the complaint which she filed in a personal injury suit. After
the statute of limitations had run, Phillips moved to amend the
complaint to name Carl as a defendant. Because Carl maintained
that he was unaware of the lawsuit during the limitations period,
the superior court dismissed the complaint on statute of
limitations grounds, concluding that the new complaint did not
relate back to the timely filing against Carls father. Phillips
appeals. Because there is a rebuttable presumption that notice
of the complaint and knowledge of the mistake can be imputed to
an insured through his insurance company, we reverse the superior
courts decision.
II. FACTS AND PROCEEDINGS
On August 16, 1999, Carl Gieringer and Traci Phillips
were involved in an automobile accident in the Alaska Regional
Hospital parking lot. Although Carl was not a minor, he was
insured under the same State Farm auto insurance policy as his
father, Dr. Robert Gieringer, and was driving his mothers car at
the time of the accident. Phillips, a nurse, states that she
knew of Dr. Robert Gieringer and learned at the time of the
accident that the driver was his son.
In April 2001 Phillips retained attorney Robert Rehbock
to represent her in her claim of injuries received due to the
accident. Rehbock contacted State Farm on April 30, 2001 to
inform the company that he would represent Phillips on her claim,
and a State Farm adjuster responded in May 2001, asking for
Phillipss medical records and stating that State Farm would make
a settlement offer after reviewing the records and evaluating the
claim. State Farms letter identified our insured as Robert
Gieringer.
Phillips hand delivered a copy of a draft complaint to
State Farm on July 16, 2001, with a letter to the adjuster
explaining that due to the steadily approaching statute of
limitations deadline, Phillips would file a complaint to preserve
her claim if a settlement could not be reached. Two days later,
on July 18, 2001, Phillips filed a complaint against Robert E.
Gieringer but described the defendant in her complaint as the
driver of the motor vehicle and directed all her claims against
the driver.
Although Phillips knew that the driver was the son of
Dr. Robert Gieringer, Phillipss counsel mistakenly assumed that
the son had the same name as the father. The police report of
the accident stated that the drivers name was Carl Gieringer, but
Phillipss counsel did not have a copy of the accident report when
drafting the complaint.
In December 2001 Phillips faxed a letter to the State
Farm adjuster requesting Robert Gieringers address for service of
process. The letter explained, [t]he only address we have is Dr.
Robert E. Gieringers office and it was Dr. Gieringers son who
should be properly served in this matter. We do not wish to
inconvenience Dr. Gieringer . . . . State Farms adjuster
provided the name of Dr. Gieringers son as Karl Gieringer and
noted that Karl was believed to be a student attending college
outside Alaska. Phillipss attorney wrote to State Farm in late
January 2002 to apologize for his error, but this time he
misidentified the son as Keith or Kieth. Phillips asked a second
time for the sons address and requested that State Farm inform
the insureds of the complaint against the son and to direct the
matter to the sons counsel. Phillips also moved to amend the
complaint to name Keith Gieringer as the defendant, and the
superior court granted leave for the amendment.
Counsel for State Farm, Joe Huddleston, responded to
Phillips in February 2002 stating: we are not in a position to
follow your instructions to notify Robert or Carl Gieringer of
anything because no action has been filed against them. I
suspect that neither one of them has any knowledge of this case
because you have never properly filed or served either one of
them. The letter ended by stating the statute of limitations on
this matter ran approximately six months ago.
On March 7, 2002, the superior court granted Phillipss
second motion to amend the complaint to name Carl Gieringer as
the defendant. After an unsuccessful effort to locate Carl
Gieringer, Phillips moved for service by publication on April 2,
2002. The superior court granted the motion, finding that it
appeared from Phillipss affidavit that Defendant has received
constructive notice by the results of Plaintiffs efforts to serve
Defendant . . . .
But Carl Gieringer stated in an affidavit signed in New
Hampshire that [t]he first time that I learned that a lawsuit had
been filed against me was in late April of 2002 or early May.
Carl Gieringer moved to dismiss the claim on statute of
limitations grounds in May 2002. Oral argument on the motion to
dismiss was held on August 20, 2002. The superior court
initially ordered that due to the lack of evidence regarding the
length of Gieringers absence from the state, Phillips would have
one month to produce evidence that Gieringers absence from the
state brings his complaint within the statute of limitations. On
November 25, 2002, the superior court granted Carls motion for
reconsideration and his motion to dismiss, concluding that his
absence from the state did not toll the statute of limitations
because Gieringer was at all times open to substituted service of
process through the commissioner of administration under AS
09.05.020 and AS 09.05.040. The superior court further ruled
that Phillipss second amended complaint did not relate back to
the timely original complaint because Carls unchallenged
affidavit conclusively establishes that he was unaware of the
lawsuit until late April or May of 2002. Phillips moved for
reconsideration of this order but his motion was denied. The
court entered judgment for Carl Gieringer and awarded attorneys
fees on January 14, 2003. Phillips appeals.
III. DISCUSSION
A. Standard of Review
The superior court granted Carl Gieringers Alaska Civil
Rule 12(b)(6) motion to dismiss for failure to state a claim upon
which relief can be granted. A motion to dismiss pursuant to
Rule 12(b)(6) requires that the plaintiffs factual allegations be
taken as true, and that matters outside of the pleadings should
be excluded from the superior courts consideration.1 In this
case the superior court relied on Carl Gieringers unchallenged
affidavit when ruling that Phillipss amended complaint did not
relate back. The superior court also held [e]ven when the facts
are construed in favor of Phillips, there remains no genuine
issue of material fact, and Mr. Gieringer is entitled to judgment
as a matter of law. This ruling implies that the superior court
may have converted the Rule 12(b)(6) motion to a summary judgment
motion. Alaska Civil Rule 12(b)(7) provides, in relevant part:
If, on a motion asserting the defense
numbered (6) to dismiss for failure of the
pleading to state a claim upon which relief
can be granted, matters outside the pleading
are presented to and not excluded by the
court, the motion shall be treated as one for
summary judgment and disposed of as provided
in Rule 56, and all parties shall be given
reasonable opportunity to present all
material made pertinent to such a motion by
Rule 56.
We have consistently held that the superior court must expressly
state whether it has excluded or considered matters outside of
the pleadings when deciding a Rule 12(b)(6) motion to dismiss.2
If the superior court does not exclude materials outside of the
pleadings, it is under a mandatory duty to treat the Rule
12(b)(6) motion as a summary judgment motion.3 The reasoning
behind this rule is that a courts inquiry on a motion under Rule
12(b)(6) essentially is limited to the content of the complaint,
while summary judgment involves the use of pleadings,
depositions, answers to interrogatories, and affidavits. 4
In the present case, the superior court expressly
relied on Carl Gieringers affidavit and therefore was under a
duty to convert the Rule 12(b)(6) motion to a summary judgment
motion. Although it is not clear whether the superior court
properly treated the motion as one for summary judgment,5 we
elect to review the superior courts decision as a motion for
summary judgment because the superior court failed to limit its
inquiry to the content of the pleadings.
B. The Amendment to Phillipss Complaint Relates Back to
the Original Pleading.
Alaska Rule of Civil Procedure 15(c) provides that
when the basic claim arises out of the conduct set forth in the
original pleading, an amendment changing the party relates back
to the date of the original pleading if: within the period
provided by law for commencing the action against the party to be
brought in by amendment, that party (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. We have also concluded that when the original
complaint is timely filed, the language within the period
provided by law for commencing the action encompasses the
reasonable time for service of process permitted by the rule for
a named defendant.6 Because the factual allegations set forth in
Phillipss amended complaint remain unchanged from the original
pleading, we proceed to consider whether the requirements of
notice and knowledge were met within the 120 days allowed for
timely service after filing of the complaint.
1. Notice of the action within the statute of
limitations period
We noted in Farmer v. State that the requirement that
the party receive notice within the statute of limitations period
has been characterized as the linchpin of Rule 15(c).7 We
recognized that [i]f the original pleading gives fair notice of
the general fact situation out of which the claim arises, the
defendant will not be deprived of any protection which the state
statute of limitations was designed to afford him.8 Thus,
fairness is the touchstone of the relation back doctrine.9 We
must determine whether the substituted or additional party [had]
fair notice of the cause of action, within the prescribed
statutory period, such that the partys rights will not be
prejudiced.10 In applying this rule, we are governed by the well-
established philosophy that the rules should be liberally
construed to insure that no plaintiff is deprived of his day in
court solely because of the intricacies and technical limitations
of pleading.11 With these principles in mind we proceed to
consider whether Carl Gieringer had constructive or imputed
notice12 of the institution of Phillipss complaint within the
statutory period such that his rights will not be prejudiced.
We noted in Farmer v. State that a developing body of
law . . . allows notice under Civil Rule 15(c) to be given
constructively where the additional party brought in by amendment
is represented by the same attorney as the existing parties.13 In
Farmer, the plaintiff brought suit against the State of Alaska
and two state troopers five days before the statute of
limitations deadline, naming one of the troopers as a John Doe
defendant because he did not know his proper name.14 On appeal
Farmer argued that his amended complaint substituting Mike
Metrokin for the John Doe defendant should relate back to the
date of the original complaint because Metrokin had constructive
and imputed notice.15 We agreed with Farmer, and adopted the
identity of interest approach as to service on the state, its
agencies, and officers.16 We held in Farmer that under the
identity of interests standard constructive notice could be
imputed to Metrokin through his counsel, the state attorney
generals office, which represented all of the defendants from the
outset. We pointed out that
the identity of interest standard usually
requires a nexus between the new and the old
parties as to the subject of the litigation
and an analogous legal position within the
case itself. Where the new and the old party
share the same attorney, imputed notice can
readily be found and the dictates of Civil
Rule 15(c) are nonetheless adhered to.[17]
In Farmer, we observed that imputation of notice under
the identity of interest standard is particularly compelling in
suits where a citizen is seeking redress from the state.18 The
question before us in this case is whether the identity of
interest standard may also apply in suits against private
parties.19 In their treatise Federal Practice and Procedure,
Professors Wright, Miller, and Kane explain that an identity of
interest generally means that the parties are so closely related
in their business operations or other activities that the
institution of an action against one serves to provide notice of
the litigation to the other.20 Thus, a business operation or
other private relationship may also give rise to an identity of
interest. Whether in a public or private context, the objective
of the theory is to avoid the application of the statute of
limitations when no prejudice would result to the party sought to
be added by the amendment.21
Some courts have found that the identity of interest
standard allows notice to be imputed through a shared insurance
carrier when the insurer is contractually bound to protect the
interests of the insured.22 In Angel v. Ray, for example, the
court held that there existed an identity of interest between an
insured and the insurance company because [u]nder the terms of
the insurance, [the insurance company] was obligated to protect
the interests of the substituted defendant.23 In Denver v.
Forbes, the court imputed notice through a shared insurer under
factual circumstances very similar to the case at hand: the
plaintiff in an auto collision mistakenly named the owner of the
vehicle as the defendant when in fact the driver was the owners
daughter.24 The Denver court permitted the plaintiff to amend the
complaint because the insurance company was aware of the actual
facts well within the two-year period after the accident, and
[because] no harm will be done if the daughter is substituted
for the mother as defendant in the action.25 But other courts
have refused to impute knowledge from an insurance company to the
insured on the grounds that the existence of an insured-insurer
relationship does not automatically create an identity of
interest.26
In routine cases, there will be an identity of interest
between the insurer and the insured because insurance companies
are typically required by contract to represent the interests of
the insured. We recognize, however, that in some cases the
interests of the insured and insurer will not be aligned. In
such cases, it would be inappropriate to impute notice from the
insurance company to the insured under an identity of interests
theory. We therefore hold that there is a presumption that
notice may be imputed from an insurer to the insured, but that
this presumption may be rebutted if the insured can show that its
interests conflict with the insurance company.
In the present case, Carl was insured under the same
State Farm policy as his father Robert. On July 16 Phillipss
attorney sent the State Farm adjuster a copy of the draft
complaint along with a letter explaining that he would file the
complaint if a settlement was not reached before August 15. It
is undisputed that State Farm was aware of the potential suit in
late July, well within the time allowed for a timely commencement
of the action.27 There is therefore a presumption that the notice
to State Farm may be imputed to Carl. Nothing in the record
before us indicates that Carl did not share an identity of
interest with his insurance company; in fact, it became evident
during the post summary judgment motion practice that State Farms
attorney met with Carls mother to discuss the complaint and
researched the statute of limitations issue on Carls behalf. But
on remand, Carl should have the opportunity to present any
contrary evidence on this issue.
Rule 15(c) also requires that the notice of the action,
whether actual or imputed, is such that the party will not be
prejudiced in maintaining his defense on the merits. It appears
on the evidence presented to us that Carl has suffered no
prejudice in maintaining his defense. In its denial of Phillipss
motion for reconsideration the superior court explicitly found
that Carls defense would not be prejudiced by imputing notice of
the action to him. Carl was covered under the same insurance
policy as his father, and the evidence gathered by State Farm
regarding the accident would be identical to that utilized if
Carl were named a defendant.28 The notice requirement of Rule
15(c) has therefore been met in this case.
2. Knowledge of mistake concerning the identity of
the proper party
We last consider the knowledge and mistake requirements
of Rule 15(c)(2). This provision of the rule requires that a
party knew or should have known that, but for a mistake
concerning the identity of the proper party, the action would
have been brought against [him].29
As with our analysis of imputed notice, a strong case
exists for imputing knowledge of the mistake to Carl. In Farmer,
we noted that [k]nowledge can be imputed to a new defendant
through his attorney who also represented the party or parties
originally sued. 30 A number of courts have imputed knowledge of
mistake through the insurance agent, and have held that it is
necessary to judge knowledge of the mistake from the perspective
of [the insurance company].31 And some courts have applied the
identity of interests theory to the mistake requirement.32
In the present case we judge knowledge of the mistake
from the perspective of the insurance company. Because the text
of the complaint directed all allegations and claims of liability
against the driver of the vehicle, the State Farm adjuster knew
or should have understood upon reviewing the complaint that
Phillips made a mistake when she named Robert as the defendant.33
Other courts have determined that when a clear mistake has been
made and an attorney or an insurer has knowledge of the mistake,
the requirements of Rule 15(c)(2) are satisfied.34 In the same
manner in which there is a presumption that Carl had imputed
notice of the action through State Farm, because he and his
father were insured under the same policy, there is a presumption
that Carl had imputed knowledge that he was the party who should
have been sued.35 We therefore conclude that unless Carl can
rebut the presumption of imputed notice and knowledge, Phillipss
amended complaint substituting Carl Gieringer relates back to the
original filing date.36
IV. CONCLUSION
We therefore REVERSE the judgment of the superior court
and REMAND this case for further proceedings consistent with this
opinion.
_______________________________
1 See Martin v. Mears, 602 P.2d 421, 425-26 (Alaska
1979).
2 Alaska Natl Ins. Co. v. Jones, 993 P.2d 424,
427 (Alaska 1999); Reed v. Municipality of Anchorage, 741 P.2d
1181, 1184 (Alaska 1987); Martin, 602 P.2d at 426.
3 Reed, 741 P.2d at 1184; Martin, 602 P.2d at 426.
4 Martin, 602 P.2d at 426 n.5 (quoting 5 Charles Wright &
Arthur Miller, Federal Practice and Procedure 1356, at 592 (1969
& Supp. 1979)).
5 When considering a summary judgment motion the court
should draw all reasonable inferences in favor of the nonmovant.
Barios v. Brooks Range Supply, Inc., 26 P.3d 1082, 1085 (Alaska
2001).
6 West v. Buchanan, 981 P.2d 1065, 1068 (Alaska 1999)
(citing Alaska R. Civ. P. 15(c)).
7 788 P.2d 43, 48 (Alaska 1990).
8 Id. at 47.
9 Id.
10 Id.
11 Id.
12 We note that in her motion for reconsideration Phillips
presented evidence from Huddlestons billing records which might
create a material question of fact as to Carls actual notice of
the complaint. As that evidence was not before the superior
court when it made the summary judgment ruling from which
Phillips appeals, we do not address this issue.
13 788 P.2d at 49.
14 Id. at 44-45.
15 Id. at 46.
16 Id. at 49.
17 Id. (internal citation omitted).
18 Id. at 49.
19 For example, Professors Wright, Miller, and Kane note
that [a]n identity of interest has been found between a parent
and a wholly owned subsidiary, as well as between related
corporations whose officers, directors, or shareholders are
substantially identical and who may have similar names or conduct
their businesses from the same offices. Charles Alan Wright et
al., Federal Practice and Procedure 1499, at 147-49 (2d ed.
1990).
20 Id. at 146.
21 Id.
22 Id. at 150 & n.9.
23 285 F. Supp. 64, 66 (E.D. Wis. 1968).
24 26 F.R.D. 614, 616 (E.D. Pa. 1960).
25 Id.
26 See Pompey v. Lumpkin, 321 F. Supp. 2d 1254, 1263 (M.D.
Ala. 2004) (stating that shared insurance does not create an
identity of interest when original and substituted parties might
not have identity of interests); Garcia v. Peter Carlton Enter.,
Ltd., 717 F. Supp. 1321, 1326 (N.D. Ill. 1989) (noting that
insured and insurance companies sometimes have antagonistic
interests); Rogatz v. Hospital General San Carlos, 89 F.R.D. 298,
300 (D.P.R. 1980) (same); Alvarez v. Meadow Lane Mall Ltd.
Pship, 560 N.W.2d 588, 592 (Iowa 1997) (Notice to an insurer is
not notice to an insured.).
27 Phillips filed suit against Robert E. Gieringer on July
18, 2001, but did not immediately serve him with process. On
January 3, 2002, the superior court found that Phillips had shown
good cause for not having served the defendant and gave Phillips
an additional 120 days to complete service. In March 2002 the
court granted Phillips leave to file an amended complaint naming
Carl Gieringer as the defendant. Phillips completed service on
Carl Gieringer by publication on May 23, 2002.
28 Cf. Siemion v. Rumfelt, 825 P.2d 896, 900 (Alaska 1992)
(finding that substituting son as defendant for father would not
prejudice sons defense because son was covered under his fathers
insurance policy, [and] the evidence gathered by his insurer
regarding the accident would be identical to that utilized were
[the son] a named defendant).
29 West, 981 P.2d at 1068 (citing Alaska R. Civ. P.
15(c)).
30 Farmer, 788 P.2d at 49 n.16 (citing Williams v. Ward,
553 F. Supp. 1024, 1026 (W.D.N.Y.1983)).
31 Red Arrow Stables, Ltd. v. Velasquez, 725 N.E.2d 110,
116 (Ind. App. 2000); Smith v. TW Servs., Inc., 142 F.R.D. 144,
149 (M.D. Tenn. 1991) (In this case we must judge knowledge of
the mistake from the perspective of the insurance company.); see
also Craig v. Ludy, 976 P.2d 1248, 1251 (Wash. App. 1999) ([T]he
estate (through its insurer) knew that, but for the Craigs
mistake, the action would have been brought against it.); Korn v.
Royal Caribbean Cruise Line, Inc., 724 F.2d 1397, 1401 (Cal. App.
1984) (finding that there was sufficient community of interest to
impute knowledge to the defendant through sales agent, operating
agent, and insurance company).
32 Advanced Power Sys., Inc. v. Hi-Tech Sys., Inc., 801 F.
Supp. 1450, 1457 (E.D. Pa. 1992) (The notice and mistake elements
are particularly intertwined when, as here, there is a close
relation between the original party and the party to be added. In
such a situation, failure to join the connected party is more
immediately recognizable as error, and it is easier to establish
that the new party should have known that, but for a mistake, she
would have been included. Therefore, courts have generally held
that the mistake condition is satisfied when the original party
and added party have a close identity of interests. ) (citing
Sounds Express Intl, Ltd. v. Am. Themes & Tapes, Inc., 101 F.R.D.
694, 697 (S.D.N.Y.1984)); Sounds Express, 101 F.R.D. at 697
(identity of interests has also served as touchstone for
determining whether the new party knew or should have known that
but for a mistake in identity, he would have been sued in the
first instance) (citing Florence v. Krasucki, 533 F. Supp. 1047,
1053 (W.D.N.Y.1982); Holden v. R.J. Reynolds Indus., Inc., 82
F.R.D. 157, 161 (M.D.N.C.1979); see also Johnson v. Goldstein,
850 F. Supp. 327, 330 (E.D. Pa. 1994); cf. Hernandez Jimenez v.
Calero Toledo, 604 F.2d 99, 103 (1st Cir. 1979) (The identity of
interests concept, however, bears only on the requirement of Rule
15(c)(1) that the added party received such notice of the
institution of the action before the limitations period
expired.).
33 Sulzen v. Williams, 977 P.2d 497, 504-05 (Utah App.
1999) (concluding that the trial court abused its discretion in
refusing to allow the Sulzens to amend their complaint so that
the caption matched the text of the complaint when the text
alleged that the children, and not the mother, were the negligent
parties).
34 Ayala Serrano v. Collazo Torres, 650 F. Supp. 722, 728-
29 (D.P.R. 1986).
35 See id.
36 Because we reverse the superior courts ruling, we need
not address Phillipss claims regarding tolling under AS
09.10.130.
