Sherrin v. Bose

¶1(dissenting).

¶2Where is the prejudice here if the substitution of Bose and Bay were permitted to relate back? This Court has stated that relation-back will be denied where there is an “inordinate delay” in substitution and “the delay prejudice^] the defendant.” Wallace v. Doege, 484 So.2d 404, 406 (Ala. 1986) (stating that “relation-back ... will not be applied where there has been an inordinate delay ..., if the delay prejudiced the defendant”); Peek v. Merit Machinery Co., 456 So.2d 1086 (Ala.1984) (stating that the defendant had failed to establish prejudice and, therefore, refusing to deny relation-back). Even in cases where the delay was for a period of years we have still required a showing of prejudice. See, e.g., Denney v. Serio, 446 So.2d 7 (Ala.1984) (where a fictitious party was named in a 1980 complaint and substitution was not sought until 1982, after the statutory period of limitations had run, the Court permitted relation-back because the defendant failed to show prejudice). There has been no showing of prejudice in this case, nor, in fact, does the majority mention prejudice in its opinion, although the plaintiff has properly raised it as an issue.

¶3I respectfully submit that this alone represents a gross and fatal flaw in the analysis of the majority. However, I also disagree with the majority’s conclusion that there was an inordinate delay in substitution after learning the true identities of Bose and Bay. In fact, substitution closely followed the plaintiff’s full knowledge of the identity of Bose and Bay.

¶4A pivotal assertion, relied on by the majority for its holding that there was an inordinate delay in substitution, is that “The plaintiff knew of Bay’s true identity before the statutory period of limitations *368expired.” The majority states that the same is true as to Bose. This is incorrect.

¶5The defendants do not dispute the following facts pertinent to this matter:

¶6Months before the statutory period of limitations had run, the plaintiff directed to Thomas Hospital and Dr. McBrearty the interrogatories referred to by the majority. The responses of those two defendants were identical, and they included incomplete information relating to Bose and Bay. Specifically, the answers failed to identify the location of the Dr. Bose in question and, unknown to the plaintiff, failed to give a complete name for Bay by omitting its “P.A.” designation.

¶7The latter may appear to be a minor omission, but this omission was complicated by counsel for Thomas Hospital, who, as I will discuss, then named Bay, in correspondence to the plaintiff, by yet another incorrect name.2

¶8After receiving the interrogatory answers referred to by the majority, counsel for the plaintiff telephoned counsel for Thomas Hospital (who became, also, counsel for Bay), to inquire as to where the Bay described in the interrogatory answers was located. Although Thomas Hospital had stated in interrogatories that it had a contract with Bay, its counsel asserted a total lack of knowledge of Bay’s address.

¶9Counsel for Thomas Hospital followed up the plaintiffs inquiry with a letter to counsel for the plaintiff, stating therein:

“As I advised you, I do not know the address of Bay Emergency Physicians, P.C. who you intend to name as a party defendant in this case. To my knowledge, Dr. William Bose was working for Bay Emergency Physicians under a contract which that organization had with Thomas Hospital to provide emergency room services to the hospital.”

¶10Note that now, Bay is denominated as “Bay Emergency Physicians, P.C.” (which is incorrect).

¶11Counsel for the plaintiff responded by letter:

“You were unable to provide me with an address for either Dr. William Bose or Bay Emergency Physicians, P.C. We have checked with the Secretary of State, medical facilities around the bay area and other law firms. No one has been able to give me an address for service on either of these two entities. That is the reason I have not been able to amend the complaint. Can you help?”

¶12Counsel for Thomas Hospital wrote back: “If you will send me a couple of interrogatories, perhaps you could obtain this information.”

¶13The requested interrogatories were served, promptly thereafter, on January 30, 1991, over a month before the statutory limitations period was to run. Thomas Hospital did not timely respond. A timely response would have come within the limitations period. Thomas Hospital delayed in responding to these interrogatories until April 23,1991, more than a month after the limitations period had run.

¶14When Thomas Hospital did finally respond, it did so with yet another name for Bay. Thomas Hospital stated that the Dr. Bose in question had been employed by Bay Medical Clinic, P.A., in Fairhope, Alabama (also, according to Bay Medical Clinic, P.A., incorrect).

¶15In sum, before the statutory period of limitations had run, the plaintiff had not been able to correctly identify Bay. In fact, the plaintiff, even through considerable efforts, had not been able to obtain the full and correct name of Bay. Moreover, there is evidently more than one entity operating in the Mobile/Fairhope area with a name like Bay’s, e.g., Bay Medical Clinic, P.A.

¶16Also, as to Bose, the plaintiff had been able to correctly identify only a name; the plaintiff was confronted with a morass of *369conflicting information as to the employer of this person and, despite her attorney’s efforts, had no information as to where service on the correct Dr. Bose could be had.

¶17In Threadgill v. Birmingham Bd. of Educ., 407 So.2d 129, 132 (Ala.1981), we stated that Rule 9(h) is “intended to operate principally in the area of emergency cases where neither the name nor the identity of the defendant is known.” Names can be identical and names can be misspelled or incorrectly stated, as this plaintiff will surely attest; more than a name must be learned before one can be reasonably certain that he or she has named the correct person as a defendant and in order to effectively bring that person into court.

¶18Until after the statutory period had run, the plaintiff, despite considerable efforts, was largely left in the dark about Dr. William Bose, although before the period ran she had properly requested and had tacitly been promised additional information about Bose by counsel for Thomas. Similarly, there is no question that the plaintiff had not, until after the statute ran, been able to correctly identify Bay.

¶19However, as the majority points out, one must “proceed in a reasonably diligent manner in determining the true identity of the defendant.” Kinard v. C.A. Kelly & Co., 468 So.2d 133, 135 (Ala.1985). Note that one is not required to proceed with “all diligence,” exhausting every means at his or her disposal, but with efforts that, objectively viewed, indicate that he or she proceeded with “reasonable diligence.”

¶20Given the fact that the plaintiff did not ascertain the true identity of Bay and Bose until after the statutory period had run, the question becomes whether the plaintiff failed to use reasonable diligence in learning the true identities of these defendants. The majority indicates that it holds both that the identities were known before the limitations period ran and that if there was any lack of information relating to the identity of Bay and Bose before that time, it was because the plaintiff did not use reasonable diligence in seeking this information.

¶21Here, I must make a critical point about the statement of counsel for Thomas Hospital made over a month before the limitations period ran. Recall that counsel for Thomas Hospital tacitly promised the plaintiff the information needed (“[i]f you will send me a couple of interrogatories”). Specifically, it bears emphasis that at that point, counsel for Thomas Hospital clearly suggested that he had access to the information needed but that he would not provide it informally; he indicated that if the plaintiff made a formal request through interrogatories then counsel for Thomas Hospital would provide the identifying information about Bay and Bose.3

¶22This fact is important, because, at that point, the plaintiff had no reason to believe that further outside investigation was necessary; the information sought was available, as logically it should have been, through counsel for the very hospital that by its own admission had a contract with Bay, and in which, by its own admission, Bose had rendered care.

¶23Yet, as regards Bay, the majority suggests that the plaintiff’s Birmingham counsel, rather than investigating the identity of Bay through discovery tools, should have been scouring, for example, Mobile telephone books or medical license records. Even assuming that any of the incomplete or erroneous names for Bay that the plaintiff had knowledge of would have rendered such a pursuit fruitful, this is an incorrect assessment. Reasonableness did not require the plaintiff to use methods outside *370discovery after counsel for Thomas Hospital had clearly indicated that the information needed was within the easy reach of discovery and where the plaintiff engaged in efforts to obtain that information through discovery.4

¶24In my view, the plaintiff did indeed act with reasonable diligence. The record indicates that before counsel for Thomas Hospital indicated that discovery would yield the information needed, the plaintiff had contacted the secretary of state’s office, medical offices around Mobile, and Mobile attorneys, had filed interrogatories and requests for production, and had sought this information by both telephone and written correspondence with counsel for Thomas Hospital.

¶25HORNSBY, C.J., and INGRAM, J., concur.