ATTORNEY FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
CHRISTOPHER A. NICHOLS SHAW FRIEDMAN
Husch & Eppenberger, LLC Friedman and Associates, P.C.
Peoria, Illinois LaPorte, Indiana
COURT OF APPEALS OF INDIANA
South Bend, Indiana
SERVICEMASTER DIVERSIFIED HEALTH )
SERVICES, L.P., )
vs. ) No. 46A04-0210-CV-485
HENRY WILEY, )
APPEAL FROM THE LAPORTE SUPERIOR COURT
The Honorable Steven King, Judge
Cause No. 46D02-9811-CP-151
July 2, 2003
OPINION - FOR PUBLICATION
Appellant-defendant ServiceMaster Diversified Health Services, L.P., n/k/a BEP Services L.P. (BEP), appeals the
trial courts grant of summary judgment in favor of appellee-plaintiff Henry Wiley.
BEP contends that the expiration of the statute of limitations precludes Wileys addition
of BEP as a co-defendant to his second amended complaint pursuant to Trial
Rule 15(C) specifications. Concluding Wiley failed to meet the notice requirements of
Trial Rule 15(C), we reverse the trial courts grant of amendment to the
complaint adding BEP as a defendant.
Wiley was employed as a certified nursing assistant at the Michigan City Heathcare
Center (Center), owned by defendant Metro Health Foundation Midwest Corporation (Metro). Metro
entered into an agreement with BEP to provide management services to the Center
beginning July 20, 1995. Specifically, BEP provided an on-site administrator who was
responsible for the functional operation of the facility and the execution on a
day-to-day basis of policies established by either the manager or Metro. Appellants
App. p. A-86. BEP also coordinated all legal matters and proceedings related
to the operations of the [Center]. Appellants App. p. A-137.
Wileys duties at the Center included bathing patients. Specifically, Wiley was assigned
to bathe defendant John Bentley who suffers severe brain damage and physical impairment
from a motorcycle accident. In November 1996, Bentley reported to a nurse
that Wiley sexually assaulted him during a bath. Based on the allegation,
Wiley was terminated. On November 10, 1998, Wiley filed a complaint against
Metro and Bentley for breach of implied covenant of good faith and fair
dealing, defamation, and some unspecified allegation of negligence. Appellants App. p. A-88-89.
In particular, Wiley claimed that Metro representatives made defamatory statements in the
presence of third parties intending to tarnish Wileys professional reputation and breached a
duty to reasonably investigate Bentleys allegations because he previously fabricated claims. Appellants
App. p. A-15-19.
On July 19, 2000, over four and a half years after Wileys termination
and almost three years after filing the original complaint, Wiley filed a motion
to add BEP as a necessary co-defendant, which the trial court granted.
Appellants App. p. A-84. On August 3, 2001, Wiley filed his second
amended complaint, which was virtually identical to the July 19, 2001 compliant with
the addition of BEP as a co-defendant. Appellants App. p. A-85-90.
BEP responded by filing a motion to dismiss seeking to dismiss all three
counts pursuant to Trial Rule 12(B)(6) for failure to state a claim upon
which relief can be granted. Specifically, BEP argued: (1) the breach
of implied covenant claim was not one recognized at law under the facts
of Wileys arguments; and (2) the two-year statute of limitations applicable to all
three counts barred all claims. In an order dated June 24, 2002,
the trial court dismissed the breach of covenant claim yet denied the motion
to dismiss the defamation and negligence actions. Appellants App. p. A-7-8.
Accordingly, BEP filed a Motion to Correct Error, or in the alternative, to
Certify Issue for Appeal on July 16, 2002. Appellants App. A-201-204.
The trial court denied BEPs motion; however, the court did certify the order
for interlocutory appeal. Appellants App. p. A-10. This court accepted jurisdiction
over the appeal pursuant to Appellate Rule 14(B) on December 24, 2002.
Appellants App. p. A-12.
DISCUSSION AND DECISION
BEP contends that the trial court erroneously denied its motion to dismiss the
defamation and negligence claims because the statute of limitations had expired and the
amended complaint did not relate back to the original complaint pursuant to Trial
Rule 15(C). We begin by noting that when a motion to dismiss
is reviewed under Trial Rule 12(B)(6), we will test the legal sufficiency of
a claim, not the facts supporting it. Parks v. State, No. 77C01-0104-CP-129,
2003 WL 21233520, at *5 (Ind. Ct. App. May 23, 2003). Accordingly,
we view the complaint in a light most favorable to the nonmoving party
and draw every reasonable inference in favor of that party. Id.
Standing in the shoes of the trial court, we must determine if the
trial court erred in applying the law. Id. The grant of
a motion to dismiss is proper if it is clear that the facts
alleged in the complaint are incapable of supporting relief under any set of
circumstances. Id. Moreover, in making this determination, we consider only the
complaint and ignore other evidence in the record. Id.
Both the defamation claim and negligence claim may be considered either tort or
employment related actions; however, regardless of their nomenclature, both claims have a two-year
statute of limitations under Indiana law and thus must be commenced within two
years after the action accrued.
See footnote Ind. Code § 34-11-2-4; Ind. Code §
Generally, an action accrues when a wrongfully inflicted injury causes damage.
Keep v. Noble County Dept of Public Welfare, 696 N.E.2d 422, 425
(Ind. Ct. App. 1998). The catalyst for Wileys defamation and negligence claims
was the November 1996 termination. Though Wiley acknowledges that the amendment was
filed well after the limitations period had expired, he argues that the amendment
should relate back to the date his original complaint was filed. Appellees
Br. p. 3. Thus, we will analyze the validity of the claims
under Trial Rule 15(C), the relation back rule.
Generally, a new defendant to a claim must be added prior to the
running of the statute of limitations; however, Trial Rule 15(C) provides an exception
to this rule. Wathen v. Greencastle Skate Place, 606 N.E.2d 887, 890
(Ind. Ct. App. 1993). Trial Rule 15(C) states:
Whenever the claim or defense asserted in the amended pleading arose out of
the conduct, transaction, or occurrence set forth or attempted to be set forth
in the original pleading, the amendment relates back to the date of the
original pleading. An amendment changing the party against whom a claim is
asserted relates back if the foregoing provision is satisfied and, within one hundred
and twenty (120) days of commencement of the action, the party to be
brought in by amendment:
(1) has received such notice of the institution of the action that he
will not be prejudiced in maintaining his defense on the merits; and
(2) knew or should have known that but for a mistake concerning the
identity of the proper party, the action would have been brought against him.
Ind. Trial Rule 15(C). In construing the rule, we have also observed
that the party seeking to add the new defendant bears the burden of
satisfying the criteria set forth in Trial Rule 15(C). Kuehl v. Hoyle,
746 N.E.2d 104, 107 (Ind. Ct. App. 2001).
BEP acknowledges that Wileys second amended complaint meets the first requirement, that Wileys
claim arose out of the same occurrence set forth in his original complaint.
Yet BEP denies receiving notice of the action within the statute of
limitationsthe second requirementand that but for a mistake in identity, BEP should have
known that it would have been sued initiallythe third requirement. In addition,
Wiley has the burden in establish both that BEP received actual notice within
the statute of limitations and that but for the mistake in identity, BEP
should have known that it would have been sued. See Kuehl, 746
N.E.2d at 107.
When reviewing the second and third requirements of Trial Rule 15(C) the crucial
element pertains to the notice requirement. Red Arrow Stables, Ltd. v. Velasquez,
725 N.E.2d 110, 113 (Ind. Ct. App. 2000). Mere awareness by the
party added in the amended pleading that the injury occurred or that the
injured party retained counsel is insufficient. Rather the notice must be such
that the added party received either actual or constructive notice of the legal
action. Hutchison v. Old Ind. Ltd. Liability Co., 714 N.E.2d 789, 793
(Ind. Ct. App. 1999). Moreover, such notice must be within the time
period provided by law for commencing the action. Gulley v. Winter, 686
N.E.2d 176, 180 (Ind. Ct. App. 1997). Consequently, Wiley must show that
BEP received either actual or constructive notice of his suit before the two-year
statute of limitations expired in November 1998.
It is undisputed that BEP did not receive actual notice of Wileys suit.
Appellants App. p. A-186. Instead, Wiley claims that BEP had constructive
notice of the complaint based on the employment relationship between BEP and the
Center. Appellants App. p. A-186. Specifically, Wiley asserts that under the
identity of interest doctrine notice of the lawsuit to Metro within the statute
of limitations constituted constructive notice of the filing of the lawsuit to BEP
and direct us to Honda Motor Co. v. Parks, 485 N.E.2d 644 (Ind.
Ct. App. 1985) as supportive of this proposition. In Parks, the personal
representative of an individual killed in an automobile accident sued the American Honda
Motor Co., a subsidiary, rather than the parent company, Honda Motor Co., Ltd.,
which had actually manufactured the automobile. We concluded that there was such
a close identity of interests between the two corporations that for all practical
purposes they may have been one and the same. Id. at 651.
We noted in Parks, that the defendants were a parent corporation and
a wholly owned subsidiary, related corporations who are represented by the same counsel
and share office space, officers, directors, and shareholders. Id. However, Metro
and BEP are two separate, distinct entities where Wileys only connection is that
one BEP employee presumably worked at Metro when the lawsuit commenced and presumably
received notice of the lawsuit, which was not even originally brought against his
employer. Appellees B. p. 9. Even assuming that a BEP manager
at the Center was aware of Wileys claim against Metro through coordinating Metros
legal affairs, in accordance with their contractual obligations we cannot say that BEP
would automatically be expected to anticipate being a party in a lawsuit to
which it is not named. Wileys assertion amounts to mere speculation and
is not conclusive in finding an identity of interest, that would give BEP
constructive notice of the lawsuit.
As Wiley did not meet the requirement of Trial Rule 15(C)(1), we need
not address the second requirement under this trial rule, regarding the identity of
the proper party. Therefore, because BEP had neither constructive nor actual notice
of the action within the meaning of Trial Rule 15(C), we reverse the
trial courts order and direct that BEP be dismissed from this case with
SULLIVAN, J., and DARDEN, J., concur.
The statute of limitations on negligence actions reads as follows: An
injury to person or character must be commenced within two (2) years
after the cause of action accrues. Ind. Code § 34-11-2-4; The Indiana
Employment Related Action Statute reads as follows: An action relating to the
terms, conditions, and privileges of employment except actions based upon a written contract
(including, but not limited to, hiring or the failure to hire, suspension, discharge,
discipline, promotion, demotion, retirement, wages, or salary) must be brought within two (2)
years of the date of the act or omission complained of. Ind.
Code § 34-11-2-1.