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Pierce v. Johnson11/19/2002
dant," Ms. Pierce was apparently led to believe that John Daniel Johnson was still alive. By the 8 March 2001 hearing, the statute of limitations expired and Ms. Pierce was without recourse. John Daniel Johnson's estate should not benefit from such conduct. By their action, the personal representative of John Daniel Johnson's estate and the purported "Attorney for Defendant" led Ms. Pierce to believe that John Daniel Johnson was still alive. Ms. Pierce and her counsel apparently relied on this representation. John Daniel Johnson's estate cannot now assert an inconsistent position to the detriment of Ms. Pierce. Consequently, we hold as an additional ground for granting relief to Ms. Pierce that John Daniel Johnson's estate was equitably estopped from asserting the statute of limitations as a defense to Pierce's action.
In summation, we hold the trial court erred in denying Ms. Pierce's motion to amend her complaint--Ms. Pierce's error was a misnomer; the intended defendant was served; and the amendment will not prejudice the actual defendant. However, because Ms. Pierce did not present her claim to the estate in accordance with the non-claim statute, N.C. Gen. Stat. ยง 28A-19-3, Ms. Pierce's recovery is limited to the extent of the decedent's liability insurance.
Reversed and Remanded.
Judges HUNTER and THOMAS concur.
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