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Rasheed v. Klopp Enterprises10/25/2005
Atlanta under the trade name "Easy Rental." One shareholder owns 100% of both Klopp and Easy T.V. and serves as chairman of the board of directors of both corporations. One officer serves as president and the registered agent for service of both corporations. Three officers are authorized to sign disbursements and checks for both corporations. Klopp and Easy T.V. share a corporate office. Visitors to either corporation would use the same entrance and be greeted by the same receptionist. Callers to either corporation would dial the same telephone number, and the receptionist answers, "This is Klopp Enterprises." Klopp and Easy T.V. share a computer network. Employees of both corporations use the same break room, rest room, copiers, etc. The same attorney represents Klopp and Easy T.V. in this litigation.
Based on the undisputed evidence, there is no issue regarding the first relation-back factor - the Rasheeds' claim against Easy T.V. arose out of the occurrence set forth in their original complaint, that is, the wreck on September 13, 2001. See Robinson v. Piggly Wiggly of Calhoun, Inc., 193 Ga. App. 675 (388 SE2d 754) (1989) (in slip-and-fall case, amendment which changed defendant premises owner arose out of same occurrence); Shiver v. Norfolk-Southern Ry. Co., 220 Ga. App. 483, 485 (469 SE2d 769) (1996) (in FELA case, amendment which changed defendant employer arose out of same occurrence).
With regard to the second factor, the evidence demanded a finding that Easy T.V. had notice of the action when Klopp was served, which was the day before the expiration of the statutory limitation period. See Shiver v. Norfolk-Southern Ry. Co., 220 Ga. App. at 485 (same registered agent received service for both original and added defendant, and same lawyer represented both entities throughout the litigation); Ford v. Olympia Skate Center, Inc., 213 Ga. App. 600, 601-602 (1) (445 SE2d 362) (1994) (service of original complaint was on person who served as president of added defendant); Robinson v. Piggly Wiggly of Calhoun, Inc., 193 Ga. App. at 675 (service of original complaint was on person who served as president of added defendant). In opposing the Rasheeds' motion for leave to amend, Easy T.V. claimed that it will be prejudiced in maintaining its defense on the merits because it will lose its statute of limitation defense. But we have held that "prejudice, for purposes of OCGA ยง 9-11-15 (c), does not include the relation back of an amendment to before the expiration of the statute of limitation." (Citation omitted.) Fontaine v. Home Depot, 250 Ga. App. at 125-126 (1). See also Shiver v. Norfolk-Southern Ry. Co., 220 Ga. App. at 485 (fact that the original and added defendant were "so closely intertwined also negates the existence of any prejudice" to the added defendant).
With regard to the third factor, the evidence demanded a finding that Easy T.V. knew or should have known it would have been named a defendant but for a mistake by the Rasheeds. Easy T.V. knew Fielding was its employee, and not Klopp's, knew that its drivers carried insurance cards designating Klopp as the insured, knew that its insurer was handling Yusuf Rasheed's claim for property damage under its business auto policy, knew that the Rasheeds had filed suit against Klopp, and knew that its only basis for liability for the Rasheeds' personal injury claims was under the doctrine of respondeat superior. See Parks v. Hyundai Motor America, Inc., 258 Ga. App. at 882-883 (3) (complaint showed that plaintiff wished to sue manufacturer of automobile and mistakenly sued similarly-named related corporation); Ford v. Olympia Skate Center, Inc., 213 Ga. App. at 601-602 (1) (complaint showed that plaintiff wished to sue owner of skatin
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