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Rivers v. American Commerce Insurance Co.12/4/2003
inary step, nor an impediment to the pursuit of plaintiff's right of recovery.
Furthermore, it is worthy of mention that upon filing suit against ACIC, Rivers was initiating a direct action against the carrier and not a substitution action. Although there existed a common claim, demand, and cause of action in the suit against Quesada and ACIC, the addition of ACIC to the amended complaint was no different, for purposes of time limitations for filing, than had suit been brought originally against ACIC independently of Quesada. As aptly noted by the motion justice, plaintiff's reliance that the suit against ACIC was a mere substitution is misplaced. Although ยง 27-7-2 permits suit against the insurer when service is returned non est inventus as well as on the insured's death prior to judgment, the statute clearly contemplates the filing of a direct action in both instances. This is evidenced by the statutory language that the injured party "may proceed directly against the insurer." (Emphasis added.)
Finally, Rule 15(c) of the Superior Court Rules of Civil Procedure is of no avail to plaintiff in this case. Rule 15(c) allows for an amended pleading to relate back to the date of the original pleading when the claim or defense arose out of the same conduct, transaction, or occurrence, the party added to the complaint has received notice of the action so as not to be prejudiced and knew or should have known that but for a mistake concerning identity of the proper party the action would have been brought previously against the party. In this case, Rivers made no mistake about the proper parties to the action, and ACIC, although in receipt of a courtesy copy of the original action against Quesada, was not served, which would have allowed it to assert its defenses.
On review of the order denying the defendant's motion for summary judgment, we are of the opinion that summary judgment should have been granted in ACIC's favor as a matter of law. It is undisputed that the plaintiff did not file suit against ACIC until March 19, 2002, well after the three-year statutory limitation period. Accordingly, we hold that the action was barred under the statute of limitations, and therefore the trial justice erroneously denied the defendant's motion for summary judgment relative to personal injuries allegedly caused on January 4, 1999.
For the foregoing reasons, we quash the order of the Superior Court denying summary judgment and direct the Superior Court on remand to enter judgment in favor of ACIC. The record shall be remanded to the Superior Court with our decision endorsed thereon.
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