 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Walton v. Prudential Property and Casualty9/6/2001
MEMORANDUM OPINION
Omakay Walton originally sued Ganesha Mitchem for personal injuries after Mitchem allegedly "rear ended" Walton in an automobile wreck. Walton also sued Prudential Property and Casualty (Prudential) seeking to recover on his uninsured motorist policy. Walton's second amended petition neither includes Mitchem in the style nor is Mitchem pleaded as a defendant in section I of the petition. Although Walton's petition alleged Mitchem caused the accident, he only sought to recover damages from Prudential under his uninsured motorist provision. An amended petition that omits a defendant operates as a voluntary dismissal of the omitted defendant. Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 1972); Radelow-Gittens Real Prop. Mgmt. v. Pamex Foods, 735 S.W.2d 558, 559 (Tex. App._Dallas 1987, writ ref'd n.r.e.). "When a party's name is omitted from an amended pleading, he is as effectively dismissed as where a formal order of dismissal is entered." Radelow-Gittens Real Prop. Mgmt., 735 S.W.2d at 559. The omission of a defendant from a live pleading operates as a dismissal of the omitted defendant even if the omission is inadvertent. Abramcik v. U.S. Home Corp., 792 S.W.2d 822, 823-24 (Tex. App._Houston [14th Dist.] 1990, writ denied).
United States Fidelity and Guaranty Company v. Cascio, 723 S.W.2d 209 (Tex. App._Dallas 1986, no writ), is similar to the case at hand. In Cascio, the plaintiff dismissed, with prejudice, the driver who allegedly caused the accident and was underinsured. Id. at 210. By dismissing the alleged tortfeasor with prejudice, the plaintiff "destroyed the subrogation right" of the insurer. Id. The dismissal removed any legal entitlement the plaintiff had to recover from the alleged torfeasor. Id. at 211. Therefore, it was legally impossible for the plaintiff to collect on an underinsured motorist policy because she could not show she was "legally entitled to recover" from the tortfeasor. Id.; Tex. Ins. Code Ann. art. 5.06-1(5) (Vernon 1981).
In Walton's first issue, he contends he accidentally omitted Mitchem as a defendant in his pleadings. Walton's omission of Mitchem operated as a dismissal, even if the omission was inadvertent. See Webb, 488 S.W.2d at 409; Abramcik, 792 S.W.2d at 823-24; Pamex Foods, 735 S.W.2d at 559. Accordingly, Walton's first issue is overruled.
In his second issue, Walton contends the trial court erred by denying him an opportunity to amend his pleading. Walton's live pleading was filed on March 25, 1998. It alleged the car wreck at issue occurred on September 6, 1995. The statute of limitations for personal injury is two years. Tex. Civ. Prac. & Rem. Code Ann. ยง 16.003 (Vernon Supp. 2001). Because the statute of limitations expired as to Mitchem, Walton's desire to amend his pleading is futile. Therefore, he could not meet the statutory prerequisite for obtaining judgment against Prudential. See Tex. Ins. Code Ann. art. 5.06-1(5) (Vernon 1981) (underinsured motorist coverage shall provide for payment to the insured of all sums which he shall be legally entitled to recover as damages from owners or operators of underinsured motor vehicles). Accordingly, Walton's second issue is overruled. See Tex. R. App. P. 44.1.
In his third issue, Walton contends the trial court's grant of summary judgment in favor of Prudential denied Walton his rights under the "uninsured motorist provision" of the insurance code and "challenged Texas' Legislative intent to liberally construe the Insurance Code." We disagree for the reasons we have outlined in addressing Walton's first and second issues. See Tex. Ins. Code Ann. art. 5.06-1(5) (Vernon 1981); Tex. R. App. P. 44.1; Webb, 488 S.W.2d at 409; Abramcik, 792 S
Page 1 2 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|