PALM BEACH COUNTY, APPELLANT,
v.
SAVAGE CONSTRUCTION CORP., WAUSAU UNDERWRITERS INSURANCE COMPANY, AND EMPLOYERS INSURANCE OF WAUSAU, A MUTUAL COMPANY, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that naming the wrong surety company constituted a misnomer, allowing the amended complaint to relate back to the original filing date, thus avoiding the statute of limitations defense.
[1] An amendment to a complaint correcting a misnomer of a party relates back to the original filing date if the correction is made after the statute of limitations has expir…
[2] The relation-back doctrine is to be construed liberally to avoid the "tricks and technicalities" of pleading and to promote the sincere effort to arrive at the truth.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligencePalm Beach County sued Wausau Underwriters Insurance as surety on a bond, but the actual surety was Employers Insurance of Wausau. Before the county d…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Florida Rule Of Civil Procedure 1.190(C) cases and more on FLexlaw
HERSEY, Judge.
In an action on a payment and performance bond, appellant, Palm Beach County, sued appellee, Wausau Underwriters Insurance as the surety. The actual surety on the bond was Employers Insurance of Wausau, a Mutual Company. Before appellant learned of its error the statute of limitations had expired. The trial court refused to rule that an amended complaint containing the proper name of the surety related back to the original filing. The issue is whether appellant’s error in naming the surety was merely a misnomer, which entitled appellant to have its amended complaint relate back to the date of original filing thus avoiding the statute of limitations defense.
Rule 1.190(c), Florida Rules of Civil Procedure, provides that under certain circumstances an amendment should be considered to relate back to a prior filing. It is well settled that the rule is to be construed liberally. Schachner v. Sandler, 616 So. 2d 166, 167-168 (Fla. 4th DCA 1993) (citing Handley v. Anclote Manor Found., 253 So. 2d 501, 502 (Fla. 4th DCA 1971), cert. denied, 262 So. 2d 445 (Fla.1972)). In the spirit of explaining the rule’s liberality, the Florida Supreme Court in Cabot v. Clearwater Constr. Co., 89 So. 2d 662 (Fla.1956), admonished litigants:
Now the objective of all pleading is merely to provide a method for setting out the opposing contentions of the parties. No longer are we concerned with the “tricks and technicalities of the trade.” The trial of a lawsuit should be a sincere effort to arrive at the truth. It is no longer a game of chess in which the technique of the maneuver captures the prize.
Id. at 664.
Courts have generally applied the relation-back doctrine when a misnomer occurs. See, e.g., Galuppi v. Viele, 232 So. 2d 408, 410 (Fla. 4th DCA), cert. denied, 238 So. 2d 109 (Fla.1970); Louis v. South Broward Hosp. Dist, 353 So. 2d 562, 563 (Fla. 4th DCA 1977), dismissed, 359 So. 2d 1217 (Fla.1978); St. John’s Hosp. and Health Ctr. v. Toomey, 610 So. 2d 62 (Fla. 3d DCA 1992) (Court held that where text of the amended complaint and original complaint were identical except for correction of plaintiffs name from St. John’s Hospital and Health Center to St. Johns’s Hospital and Health Center Foundation (two separate entities), the defendant estate had knowledge of the claim which was attached to the complaint, and the estate was not prejudiced by the amendment, the error was merely a correctable misno mer). See also Sexton v. Panning Lumber Co., 260 So. 2d 898 (Fla. 4th DCA), cert. denied, 271 So. 2d 764 (Fla.1972); Thomas v. Taylor Creek Marina of Fort Pierce, Inc., 520 So. 2d 708 (Fla. 4th DCA 1988); Francese v. Tamarac Hosp. Corp., 504 So. 2d 546 (Fla. 4th DCA 1987). Cf., Michelin Reifenwerke, A.G. v. Roose, 462 So. 2d 54 (Fla. 4th DCA 1984), rev. denied, 475 So. 2d 696 (Fla.1985). Compare, Gray v. Executive Drywall, Inc., 520 So. 2d 619 (Fla. 2d DCA), rev. denied, 529 So. 2d 694 (Fla.1988) (Notwithstanding some common stock ownership, occupancy in the same office building and common representation of both at the site where the injury occurred, court upheld summary judgment in favor of proper defendant Executive Plastering on the basis that the statute of limitations had expired in the case erroneously brought against Executive Drywall, and that Executive Drywall had done nothing to prolong matters unnecessarily in an attempt to confuse plaintiff).
In the present case there are several factors indicative of a close alliance between the two separate corporations. Those that would seem to justify an inference (that a reference to one could reasonably be found to be simply a misnomer for the other) arise as follows: 1. Appellant made several inquMes before determining that Wausau Underwriters Insurance was the proper defendant:
a. in a telephone call to the Florida Department of Insurance and Treasury appellant was advised that Wausau was the proper name to employ;
b. in a conversation with one of the companies’ registered agents in Miami appellant was told that all the companies were the same and it did not matter who was actually named in the suit;
c. . the response to a letter written by appellant to Employers Insurance of Wau-sau was written on the letterhead of Wau-sau, not Employers;
d. appellant learned that Employers owns 100% of a holding company identified as Wausau Service Corporation, which, in turn, owns 100% of Wausau;
e. appellant also learned that:
i. the companies operate out of a single office;
ii. they share a single telephone line;
iii. they have overlapping officers and directors;
iv. they share consolidated financial statements and registration statements.
2. A single attorney represented both companies;
3. Both companies received service of process through the same individuals at the same location.
Under these circumstances we have no hesitancy in holding that reference in the complaint to Wausau was simply a misnomer for Employers. We reverse and remand for further proceedings in accordance with this opinion. Our resolution makes it unnecessary to consider the second point on appeal.
REVERSED AND REMANDED.
PARIENTE, J., and WALDEN, JAMES H., Senior Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
-
Kozich v. Shahady, 702 So. 2d 1289 (Fla. 4th DCA 1997)…so that the added party was deemed to have suffered no prejudice by being tardily brought in or substituted as a party. Michelin Reifenwerke, A.G. v. Roose, 462 So. 2d 54, 57 (Fla. 4th DCA 1984). See also Palm Beach County v. Savage Constr. Corp., 627 So. 2d 1332 (Fla. 4th DCA 1993); Schachner v. Sandler, 616 So. 2d 166 (Fla. 4th DCA 1993). In Schachner, two corporations filed a malpractice action against a law firm. Scha-chner, the principal of both corporations, subsequently filed an amended complaint aft…
-
Schwartz v. Wilt Chamberlain's OF Boca Raton, Ltd., 725 So. 2d 451 (Fla. 4th DCA 1999)…and directors; (4) share consolidated financial statements and registration statements; (5) share the same attorney, and (6) receive service of process through the same individual at the same location. See Palm Beach County v. Savage Constr. Corp., 627 So. 2d 1332 (Fla. 4th DCA 1993). In this case, substantial identities of interest have been shown to exist between the original defendant and the new defendants. Robert Schmier stated in his affidavit that he is president of both the original defendant, Wilt’s…
-
Okeelanta Corp. v. Bygrave, 660 So. 2d 743 (Fla. 4th DCA 1995)…lculations required by the summary judgment, the court entered a judgment for damages of $50,-980,226.64. . The suit was brought before the adoption of § 718.111(3), Fla.Stat. and Fla.R.Civ.P. 1.221. . See Palm Beach County v. Savage Const. Corp., 627 So. 2d 1332 (Fla. 4th DCA 1993).…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (17 total)
- Cabot v. Clearwater Constr. Co., 89 So. 2d 662 (Fla. 1956)
- Mrs. Betty Galuppi v. Viele, 232 So. 2d 408 (Fla. 4th DCA 1970)
- Roscell Louis v. S. Broward Hosp. Dist. f/a/o/b/o Mem'l Hosp., 353 So. 2d 562 (Fla. 4th DCA 1977)
- Handley v. Anclote Manor Found., 253 So. 2d 501 (Fla. 2d DCA 1971)
- Songer v. Citrus Cnty., 462 So. 2d 54 (Fla. 5th DCA 1984)
- Sexton v. Panning Lumber Co., 260 So. 2d 898 (Fla. 4th DCA 1972)
- State OF Fla. Pollution Control Bd. v. Gables BY THE SEA, Inc., 262 So. 2d 445 (Fla. 1972)
- Gigi Gil Francese v. Tamarac Hosp. Corp., 504 So. 2d 546 (Fla. 4th DCA 1987)
- In re The Est. OF Arthur C. Farley, 520 So. 2d 619 (Fla. 4th DCA 1988)
- Sunday v. Sunday, 610 So. 2d 62 (Fla. 3d DCA 1992)