Nolph v. Scott

725 S.W.2d 860, 1987 Ky. LEXIS 195

• Court: Kentucky Supreme Court
• Decided: March 12, 1987
• Status: Published

Opinions

OPINION OP THE COURT

The issue on this appeal is whether CR 15.03 permits an amended complaint, substituting movant Michael Nolph for an “unknown defendant,” to relate back to the time of the original complaint where “unknown defendants” were constructively served by appointment of a warning order attorney.

The trial court ruled relation back was not permitted and granted Movant’s motion for summary judgment. The Court of Appeals reversed. We hold CR 15.03 does not permit relation back under the circumstances of this case and reverse the decision of the Court of Appeals.

Respondent Scott instituted this medical malpractice action against the University of Louisville, University Hospital, Drs. Sel-voy Fillerup and Richard Albert, and other unknown defendants. The unknown defendants were identified as “being certain persons who were careless and negligent in treating Helen Scott at the University Hospital....” The complaint alleged medical malpractice for injuries sustained as a result of surgery performed on March 9, 1982, at University Hospital. Michael Nolph was not identified by name in the original complaint.

On March 2, 1983, Respondent sought constructive service on the unknown defendants through the appointment of a warning order attorney. A letter of the warning order attorney directed to the unknown defendants was sent to University Hospital on or about March 7, 1983. The trial court found that Nolph did not receive notice of the lawsuit prior to March 11, 1983, when the limitations period expired.

On July 14, 1983, appellee took the deposition of Dr. Fillerup who identified Michael Nolph as being present during Scott’s surgery. On September 9, 1983, Respondent deposed Nolph and verified that he was the supervising physician in the operating room during her surgery. On November 7, 1983, Respondent filed an amended complaint naming Michael Nolph as a party defendant. Nolph was finally served with summons on December 23, 1983, approximately nine months past the limitations period. By his own admission Nolph first learned of the lawsuit, informally, in May or June, 1983.

In order for an amended pleading to relate back to the time of filing of the original complaint, the requirements of CR 15.03 must be met. The relevant sections of the rule are as follows:

(1) 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.

(2) An amendment changing the party against whom a claim is asserted relates back if the condition of paragraph (1) is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (a) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (b) knew or should have known that but for mistake concerning the identity of the proper party, the action would have been brought against him.... (Emphasis added).

There is no dispute among the parties that the requirement of section (1) is met. The present controversy involves the requirements of section (2).

Scott contends the amended complaint relates back to the earlier filing date because Nolph received constructive notice of the lawsuit. We disagree. Constructive service on unknown defendants through appointment of a warning order attorney is not sufficient notice for the purposes of CR 15.03.

The warning order rules provide for constructive service on a person unknown to the plaintiff. CR 4.05, 4.06, 4.07. While strict compliance with these rules is required, see e.g., Potter v. Breaks Interstate Park Commission, Ky., 701 S.W.2d 403 (1985), actual notice to the defendant is not necessary. Appointment of a warning order attorney is a procedural device permitting an action to proceed, in certain circumstances, unknown to the defendant.¹

However, the relation back rule mandates that the party to be named in an amended pleading knew or should have known about the action brought against him. CR 15.03(2)(b). Actual, formal notice may not be necessary. Cf., Funk v. Wagner Machinery, Inc., Ky.App., 710 S.W.2d 860 (1986). Nevertheless, knowledge of the proceedings against him gained during the statutory period must be attributed to the defendant. CR 15.03(2)(b). As noted by the United States Supreme Court in its review of the federal relation back rule,² “(T)he linchpin is notice, and notice within the limitations period.” Schiavone v. Fortune aka Time, Inc., — U.S. —, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986).

Movant Nolph lacked notice of the lawsuit within the limitations period. Thus, a key ingredient of CR 15.03 is missing. The trial court did not err in refusing to permit the amended pleading to relate back to the time of the original complaint. The decision of the Court of Appeals is reversed.

STEPHENS, C.J., and GANT, STEPHENSON, VANCE and WINTERSHEIMER, JJ., concur. LEIBSON, J., dissents in a separate opinion and is joined in his dissent by LAMBERT, J.

1 . See generally Leathers, "Rethinking Jurisdiction and Notice in Kentucky,” 71 Kentucky Law Journal 755, 780 (1982-83).

2 . Civil Rule 15.03 is substantially the same as Federal Rule of Civil Procedure 15(c). 6 Ber-telsman & Philipps, Kentucky Practice, C.R. 15.-03, Comment 1 (4th ed. 1984).