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Pearson v. Brooks12/5/2003
that would allow a plaintiff to wait until the discovery process to ascertain possible defendants, stating as follows:
"Indeed such an interpretation would amount to nothing less than the creation of a 'discovery' exception to the statute of limitations. Additionally, the argument in favor of such an interpretation would support a tolling of the statute until discovery of the cause of action, rather than the classical tolling until discovery of injury which is generally contemplated by our discovery statutes."
429 So. 2d at 959. The interpretation of Rule 9(h) in Roberts excuses the plaintiff from using due diligence to ascertain the identity of a defendant, contrary to the requirements of other cases construing Rule 9(h). See Crowl v. Kayo Oil Co., 848 So. 2d 930, 937 (Ala. 2002), quoting Fulmer v. Clark, 654 So. 2d 45, 46 (Ala. 1995), as follows:
"'Rule 9(h) and Rule 15(c), Ala. R. Civ. P., allow a plaintiff to avoid the bar of a statute of limitations by fictitiously naming defendants for which actual parties can later be substituted. Such a substitution is allowed to relate back to the date of the original complaint if the original complaint adequately described the fictitiously named defendant and stated a claim against such a defendant. In order for the substitution to relate back, the plaintiff must have been ignorant of the true identity of the defendant and must have used due diligence in attempting to discover it. Jones v. Resorcon, Inc., 604 So. 2d 370 (Ala. 1992).'"
(Emphasis added.) Furthermore, the holding in Roberts promotes the use of fictitiously named parties in a case where the identity of the defendant is known but the plaintiff has not quite built a winning case against the defendant. That particular use of Rule 9(h) is contrary to Marsh and Columbia Engineering, and it is exactly the use advocated by Pearson in this case. Pearson knew the identities of Brooks and Black and the duties that they performed at Perdue Farms. It would extend the statute of limitations without authorization from the Legislature to allow Pearson to substitute Brooks and Black for fictitiously named parties because Pearson has now obtained evidence that Brooks and Black have been described as the parties responsible for the accident.
Pearson cannot substitute Brooks and Black after the expiration of the statutory limitations period because under Marsh and Columbia Engineering Pearson was not ignorant of their identities at the time she filed her original complaint. We hereby overrule Roberts to the extent that it conflicts with the rule established in Columbia Engineering and followed in Marsh regarding the substitution of fictitiously named parties and the doctrine of relation back. Therefore, we affirm the order of the trial court dismissing Brooks and Black from the action.
AFFIRMED.
See, Brown, Johnstone, Harwood, Woodall, and Stuart, JJ., concur.
Houston, J., concurs specially.
HOUSTON, Justice (concurring specially).
When I authored Roberts v. Cochran, 656 So. 2d 353 (Ala. 1995), I was trying to tie the 1987 Alabama Litigation Accountability Act (Ala. Code 1975, ยงยง 12-19-270 to -276) to this Court's existing Rules of Civil Procedure. If Justice Lyons, the moving force behind the Alabama Rules of Civil Procedure, deems my effort too much of a stretch, I will not disagree. I do recommend that the Standing Committee on Alabama Rules of Civil Procedure consider adopting a rule that would give an attorney or party some relief when the attorney or party, using reasonable diligence, could not discover that the attorney or party had substantial justification for filing a claim against a pa
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