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Blanton v. Beiswenger9/15/2004
Argued and submitted July 7, 2004.
Reversed and remanded.
Plaintiff appeals, assigning error to the entry of summary judgment against her in this action for personal injuries arising from an automobile accident. The trial court concluded that plaintiff's claim against defendant Melanie McGrath was barred by the statute of limitations and that an advance payment made to plaintiff by McGrath's insurer did not, under ORS 12.155, relieve plaintiff from that bar. We reverse and remand.
The material facts are undisputed. On December 10, 2000, plaintiff was injured in an automobile accident. On November 22, 2002, plaintiff filed a negligence action against Ardis Beiswenger for personal injuries plaintiff suffered in the accident. In the complaint, plaintiff alleged that Beiswenger was the operator of the vehicle that struck her. On January 9, 2003, plaintiff had Beiswenger served with summons and the complaint. On January 29, 2003, plaintiff filed an amended complaint in the same action. The amended complaint dropped Beiswenger as a defendant and, instead, named McGrath as the sole defendant. In the amended complaint, plaintiff alleged that McGrath was the operator of the vehicle that struck her. Plaintiff also alleged that, on or about August 14, 2001, she received a payment from McGrath's insurer and that neither McGrath nor her insurer thereafter provided plaintiff with written notice of the date of expiration of the statute of limitations. Otherwise, the material allegations of the complaint and the amended complaint were identical. The amended complaint was served on McGrath on January 31, 2003.
In a personal injury action, the statute of limitations expires two years after the injury. ORS 12.110(1). Plaintiff's complaint was filed within two years of the injury, and Beiswenger was served within 60 days of the filing of the action. Because an action is deemed to have been commenced on the day of filing if the defendant is served within 60 days thereafter, ORS 12.020(2), the action was timely commenced against Beiswenger. However, McGrath was served with the amended complaint more than 60 days after the original complaint was filed. For that reason, McGrath moved for summary judgment on the ground that the action against her was time barred.
Plaintiff has not contended that the amended complaint related back to the date of the original complaint under ORCP 23 C. See Johnson v. MacGregor, 55 Or App 374, 376-77, 637 P2d 1362 (1981), rev den, 292 Or 589 (1982) (when the defendant is changed, relation back of amended complaint does not occur unless the requirements of ORCP 23 C are satisfied). Instead, plaintiff argued that the running of the limitation period had been suspended under ORS 12.155 because McGrath's insurer made an advance payment on her behalf and thereafter failed to notify plaintiff of the expiration of the statute of limitations. In one of her summary judgment submissions, McGrath admitted that her "insurer made a payment on behalf of [McGrath] and did not give written notice of the time in which to commence an action." However, McGrath asserted that ORS 12.155 was inapplicable and that the action against her was not timely commenced. The trial court agreed with McGrath and granted her motion for summary judgment.
The issue on appeal involves the meaning and application of ORS 12.155, which provides:
"(1) If the person who makes an advance payment referred to in ORS 31.560 or 31.565 gives to each person entitled to recover damages for the death, injury or destruction, not later than 30 days after the date the first of such advance payments was made, written notice of the date of expiration of the period of limita
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