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West v. Buchanan6/11/1999
No. 5134
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Niesje J. Steinkruger, Judge.
EASTAUGH, Justice, with whom COMPTON, Justice, joins, Dissenting.
I. INTRODUCTION
Carmen West appeals the superior court's dismissal of her personal injury action on statute of limitations grounds. Although West initially sued the wrong person on the last day available under the statute of limitations, she substituted Hiltrud Buchanan as the named defendant within the period allowed by court rule for service of the complaint. Because we conclude that West's amended complaint substituting Buchanan as defendant should relate back to the time of its initial filing, we reverse.
II. FACTS AND PROCEEDINGS
On June 17, 1993, Carmen West was involved in a traffic accident with Hiltrud Buchanan, who was driving a car owned by William Bembry. That summer, West retained counsel, who began negotiating on her behalf with Allstate Insurance, the insurer of the Buchanan/Bembry vehicle. The headings on Allstate's negotiation letters referred to "our insured: William Bembry."
By June 1995 West and Allstate had failed to reach a settlement agreement. On June 16, 1995, the last day available under the applicable statute of limitations, West filed a complaint against Bembry. West sent the complaint and summons to Bembry by certified mail on June 19, 1995, and Bembry received them on June 22, 1995.
About three months later, on September 25, 1995, West moved to amend her complaint to substitute Buchanan as the defendant. Bembry opposed on the ground of futility, arguing that the statute of limitations would bar the amended complaint since it could not properly "relate back" to the original filing. Superior Court Judge Ralph R. Beistline granted the motion to amend, reasoning that notice of the claim could be imputed to Bembry because he was "apparently in a close relationship" with Buchanan and that Buchanan "was a permissive user of his automobile." Judge Beistline also relied on the fact that " egotations were on-going to resolve the claim," concluding that it was "clear that the parties understood that a claim existed arising out of this accident."
Buchanan, now the named defendant, filed an answer and a Notice of Change of Judge. The case was reassigned to Superior Court Judge Niesje J. Steinkruger. Buchanan then moved for summary judgment based on West's failure to file within the applicable period of limitations. Judge Steinkruger granted Buchanan's motion for summary judgment "based upon the Statute of Limitations." Implicit in this holding was Judge Steinkruger's determination that West's amended complaint did not relate back to the date of her original complaint. West moved for reconsideration, but Judge Steinkruger denied this motion. West appeals.
III. STANDARD OF REVIEW
The issues on review involve questions of law. We review such questions de novo. We are not bound by the lower court's decision, but have the duty to "adopt the rule of law that is most persuasive in light of precedent, reason, and policy."
IV. DISCUSSION
A. Buchanan's Notice of Change of Judge Was Timely.
West first suggests that Buchanan's Notice of Change of Judge was untimely. This contention is without merit. Alaska Civil Rule 42(c)(3) provides, in part:
"Where a party has been served or enters an action after the case has been assigned to a specific Judge, a notice of change of Judge shall also be timely if filed by the party before the commencement of trial and within five days after a party appears or fil
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