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Rasheed v. Klopp Enterprises10/25/2005
SMITH, P. J., ELLINGTON and ADAMS, JJ.
The State Court of Cobb County denied Yusuf and Frishawn Rasheed's motion for leave to amend their personal injury complaint against Klopp Enterprises, Inc. and Corey Fielding and, in the same order, granted Klopp's motion for summary judgment. The trial court also denied as moot a motion to dismiss filed under special appearance by Easy T.V. & Appliance Rental, Inc., the defendant the Rasheeds sought to add via their amended complaint. The Rasheeds appeal, contending the trial court erred in denying their motion for leave to amend their complaint to add Easy T.V. as a party defendant and in granting Klopp's motion for summary judgment. For the reasons which follow, we reverse in part and affirm in part.
1. The Rasheeds contend the trial court erred in denying their motion for leave to amend their complaint to add Easy T.V. as a party defendant. Ordinarily, a plaintiff may amend a complaint without leave of court "at any time before the entry of a pretrial order," as was the case here. An amendment which adds a party, however, is governed by OCGA § 9-11-21, which provides, " arties may be . . . added by order of the court on motion of any party . . . and on such terms as are just." "A trial court's decision as to whether a party should be added to a lawsuit lies in the court's sound discretion and will be overturned on appeal only upon a showing of abuse of that discretion." (Citation omitted.) Parks v. Hyundai Motor America, Inc., 258 Ga. App. 876, 880 (3) (575 SE2d 673) (2002). We have held that when a plaintiff can satisfy the statutory requirements for relation back of an amendment, set out in OCGA § 9-11-15 (c), denying a motion for leave to amend the complaint to add a defendant is an abuse of the trial court's discretion. Fontaine v. Home Depot, Inc., 250 Ga. App. 123, 125 (1) (550 SE2d 691) (2001).
The Rasheeds argue that they met the three requirements for effecting an amendment under OCGA § 9-11-15 (c): (1) the amendment adding Easy T.V. arises out of the same occurrence as the original complaint; (2) before the statutory limitation period expired, Easy T.V. had notice of the action such that it will not be prejudiced in maintaining its defense on the merits; and (3) within the same period, Easy T.V. knew or should have known it would have been named a defendant but for a mistake by the Rasheeds. We agree.
The records shows the following undisputed facts. On September 13, 2001, Fielding, an Easy T.V. employee, was driving a commercial van marked "Easy Rental" when he collided with the car Yusuf Rasheed was driving, damaging Rasheed's car and injuring Rasheed. Fielding apologized for the accident and said he did not see Rasheed's car. Fielding provided the responding officer with proof of insurance.
On the date of the accident, Easy T.V. was listed as an additional insured on a business auto insurance policy carried by Klopp. Easy T.V.'s employees, when driving Easy T.V.'s vehicles, carried an insurance card which showed Klopp as the insured. Klopp's insurance carrier settled Rasheed's claim for property damage to his vehicle arising from the accident.
Based on the insurance information noted in the police report, the Rasheeds concluded that Klopp was Fielding's employer. Yusuf Rasheed filed his complaint against Klopp and Fielding on September 5, 2003. Klopp was served on September 12, 2003. Fielding was never served. Klopp's attorney filed an answer on behalf of Fielding as well as on behalf of Klopp. During discovery, witnesses testified that Fielding was an employee of Easy T.V. and was not an employee of Klopp.
Easy T.V., a subsidiary of Klopp, operates nine stores in
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