Porter County Sheriff Department v. Guzorek

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES

Sharon L. Stanzione Benjamen W. Murphy

Merrillville, Indiana Merrillville, Indiana

Walter J. Alvarez

Crown Point, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court

_________________________________

No. 46S03-0606-CV-207

PORTER COUNTY SHERIFF DEPARTMENT,

Appellant (Defendant below),

v.

RITA J. AND DOUGLAS GUZOREK,

Appellees (Plaintiffs below).

_________________________________

Appeal from the LaPorte Circuit Court, No. 46C01-0405-CT-144

The Honorable Robert W. Gilmore, Jr., Judge

_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 46A03-0505-CV-211

_________________________________

November 28, 2006

Boehm, Justice.

The plaintiff originally sued an officer of the sheriffs’ department for negligence in the

course of his duties. We hold that on the facts of this case an amended complaint adding the

sheriffs’ department as a defendant relates back to the date of the original complaint and is

therefore not barred by the statute of limitations if the original action was timely filed.

Facts and Procedural History

On August 11, 2000, a Porter County Sheriff Department (PCSD) vehicle driven by

Officer Joseph R. Falatic struck Rita J. Guzorek’s vehicle from behind while she was stopped at

a stop sign. At the time of the collision, Officer Falatic was returning from a response to a

residential alarm.

Nineteen days later, on August 30, 2000, Guzorek’s attorney sent a Tort Claims Act

notice to the Indiana Political Subdivision Risk Management Commission, the Porter County

Sheriff, the Porter County Attorney, the Porter County Commissioners, and the Porter County

Council. The notice stated that at the time of the collision Officer Falatic “was acting within the

course and scope of his employment so as to make Porter County liable for the negligence of its

employees.” The notice also indicated that Guzorek’s damages would not exceed $300,000.

On August 6, 2002, five days before expiration of the two-year statute of limitations,

Guzorek and her husband filed a complaint naming Falatic as the only defendant. The complaint

did not mention PCSD or Falatic’s employment with PCSD. Falatic filed his answer on June 2,

2003 stating that at the time of the accident he was employed by Porter County and was acting

within the course and scope of his employment. Falatic asserted as an affirmative defense that

the complaint failed to allege any of the conditions listed in the Tort Claims Act that would

permit an action to proceed against an employee of a government entity in the employee’s

individual capacity. See I.C. § 34-13-3-5(b) (2004). Falatic subsequently moved for summary

judgment on the basis that he had no personal liability.

While Falatic’s motion for summary judgment was pending, the Guzoreks moved for

leave to amend the complaint to add PCSD as a defendant. The trial court granted Falatic’s

motion for summary judgment on February 23, 2004. Three days later, the Guzoreks’ motion for

leave to amend the complaint was granted and the amended complaint against PCSD was filed.

PCSD then appeared, represented by the same counsel who had represented Falatic, and moved

for summary judgment, contending that the amended complaint did not relate back to the original

complaint under Indiana Trial Rule 15(C) and that the claim against PCSD was therefore barred

by the two-year statute of limitations. The trial court denied PCSD’s motion but certified its

order for interlocutory appeal. The Court of Appeals reversed and directed that summary

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judgment be granted in favor of PCSD. Porter County Sheriff Dep’t v. Guzorek, 841 N.E.2d

1158 (2005). We granted transfer. 855 N.E.2d 1010 (Ind. 2006).

Relation Back of Amendments Under Indiana Trial Rule 15(C)

The statute of limitations applicable to Guzorek’s personal injury claim is two years. I.C.

§ 34-11-2-4. The Guzoreks did not file their amended complaint naming PCSD as a defendant

until February 26, 2004, approximately eighteen months after the limitations period had run.

Therefore, in order to survive summary judgment, the claim against PCSD must relate back to

the date of filing of the original complaint.

A. The Evolution of Trial Rule 15(C) and its Federal Counterpart

Trial Rule 15(C) sets forth three requirements for an amended complaint changing the

party against whom a claim is asserted to relate back to the date of the original complaint. A

threshold requirement is that the claim asserted in the amended complaint must arise “out of the

conduct, transaction, or occurrence set forth” in the original complaint. There is no dispute that

this requirement is met in this case. The rule further requires that:

within 120 days of commencement of the action, the party to be brought in by the

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.

Indiana Trial Rule 15(C) is for this purpose identical to the current version of Rule 15(c)

of the Federal Rules of Civil Procedure (FRCP). 1 FRCP 15(c) as originally promulgated in 1938

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Fed. R. Civ. P. 15(c) provides:

An amendment of a pleading relates back to the date of the original pleading when

...

(2) 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, or

(3) the amendment changes the party or the naming of the party against whom a claim is

asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule

4(m) for service of the summons and complaint, the party to be brought in by amendment

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stated simply: “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.” See Harold S. Lewis, Jr., The

Excessive History of Federal Rule 15(c) and Its Lessons for Civil Rules Revision, 85 Mich. L.

Rev. 1507, 1513-14 (1987). In 1966, FRCP 15(c) was amended to include the requirements of

notice to the defendant and mistake by the plaintiff “within the period provided by law for

commencing the action against him.” Fed. R. Civ. P. 15 advisory committee’s note (1966

amendments). When Indiana adopted Trial Rule 15 in 1970, Indiana modeled its original Trial

Rule 15(C) on this post-1966 version of the federal rule. See Ind. Civil Code Study

Commission, Indiana Rules of Civil Procedure: Proposed Final Draft (1968). Subsequent

amendments to the Indiana rule have conformed to changes in the federal rule. We agree with

the Court of Appeals’s conclusion that it is therefore appropriate to consider federal authorities

as guidelines in interpreting and applying the Indiana rule. Honda Motor Co. v. Parks, 485

N.E.2d 644, 649 (Ind. Ct. App. 1985).

Judicial decisions addressing the issue of relation back made clear that the “within the

period provided by law” language of the 1966 amendment describing the deadline by which the

notice and knowledge requirements must be satisfied referred to the applicable statute of

limitations period. Schiavone v. Fortune, 477 U.S. 21, 30 (1987). Consequently, earlier cases

were resolved by finding that whatever “sufficient notice” meant it had to be given to the added

defendant prior to the expiration of the statute of limitations. This was thought to produce harsh

results, particularly in cases where the initial complaint was filed on the eve of expiration of the

limitations period. As Justice Stevens pointed out, timely service of process can be effected after

the statute of limitations has run, so requiring notice before the statute had run entitled a

defendant added by amendment to earlier notice than it would have received if the original

complaint had named the party correctly. Schiavone, 477 U.S. at 37 (Stevens, J., dissenting). To

address this problem, FRCP 15(c) was amended in 1991 to substitute the current language, which

permits the “notice” and “mistake” requirements to be met during the period allowed for service

(A) has received such notice of the institution of the action that the party will not be

prejudiced in maintaining a defense on the merits, and (B) knew or should have known

that, but for a mistake concerning the identity of the proper party, the action would have

been brought against the party.

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and summons of the pleading under FRCP 4(m), which is 120 days. Effective April 1, 2002,

Indiana adopted the substance of this change by explicitly providing for a 120-day period for

notice and mistake rather than describing this time by reference to the period for service of

process.

The net result is that in order for an amendment of a complaint to relate back under Trial

Rule 15(C), no later than 120 days after the complaint is filed a defendant must receive notice of

the pendency of the action and be aware that, but for a mistake, that defendant would have been

named in the original complaint. This doctrine of relation back under current Indiana Trial Rule

15(C) seeks to strike the proper balance between the basic goal of the Trial Rules to promote

decisions on the merits and the policies underlying statutes of limitations, the most significant of

which are to provide fairness and finality to defendants. The rule therefore liberally allows

amendments of pleadings but also seeks to ensure that defendants “receive notice of claims

within a reasonable time, and thus are not impaired in their defense by evidence that is lost or

diminished in its clarity because of the undue passage of time.” Olech v. Vill. of Willowbrook,

138 F. Supp. 2d 1036, 1041 (N.D. Ill. 2000); see also William F. Harvey, 2 Indiana Practice:

Rules of Procedure Annotated § 15.7, at 70 (3d ed. 2000); Lewis, supra, at 1512.

As applied to this case, the issue becomes whether, within 120 days after the original

complaint was filed, PCSD was on notice of the lawsuit against Falatic and was aware that but

for a mistake PCSD should have been named as a defendant.

B. Notice to the Substituted or Added Defendant

Trial Rule 15(C) requires that in order for an amended complaint “changing” the

defendant to relate back the party to be added must have “received such notice of the institution

of the action that he will not be prejudiced in maintaining his defense on the merits.” Czarnecki

v. Lear Siegler, Inc., 471 N.E.2d 299, 300 (Ind. 1984); Red Arrow Stables, Ltd. v. Velasquez,

725 N.E.2d 110, 113 (Ind. Ct. App. 2000). “Changing” a defendant can take place either by

substitution or addition of a new defendant. State ex rel. Young v. Noble Circuit Court, 263 Ind.

353, 359, 332 N.E.2d 99, 102 (1975). Although Trial Rule 15(C) does not require service of

process on the new defendant, notice of the pending of the claim must be such that the added

party received either actual or constructive notice of the legal action. It is not sufficient that the

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party is on notice that an injury has occurred or that the plaintiff has retained counsel.

ServiceMaster Diversified Health Servs., L.P. v. Wiley, 790 N.E.2d 1056, 1060 (Ind. Ct. App.

2003), trans. denied. Thus, the Court of Appeals correctly held that the tort claim notice sent to

PCSD by the Guzoreks did not satisfy Trial Rule 15(C) because it informed PCSD of the

accident but did not advise that a lawsuit had been filed.

Notice of the lawsuit may be actual notice or constructive notice, which may be inferred

based on either the identity of interest between the old and new parties or the fact that they share

attorneys. An identity of interest may permit notice to be imputed to the added party when the

original and added party “are so closely related in business or other activities that it is fair to

presume that the added part[y] learned of the institution of the action shortly after it was

commenced.” Honda Motor Co., 485 N.E.2d at 650 (quoting Hernandez Jimenez v. Calero

Toledo, 604 F.2d 99, 102-03 (1st Cir. 1979)). Similarly, notice may be imputed based on shared

legal counsel if it is reasonable to infer that the attorney for the initial party will have

communicated to the added party that he, she or it may be joined in the action. 3-15 Moore’s

Federal Practice—Civil §15-19[3][c] (2006).

The Court of Appeals declined to find notice under either theory, concluding that, despite

the employment relationship between Falatic and PCSD and their shared counsel, the two are

separate and distinct entities. The Court of Appeals noted that Falatic could be sued without

PCSD’s involvement in any way. The Court of Appeals also found no evidence suggesting that

the two parties shared representation before the Guzoreks’ filed their amended complaint.

Guzorek, 1158 N.E.2d at 1163. We think this characterization of PCSD’s relationship with

Falatic ignores the point that the Tort Claims Act imposed a statutory duty on PCSD to provide

counsel for Falatic. Indiana Code section 34-13-3-5(e) provides:

The governmental entity shall provide counsel for and pay all costs and fees

incurred by or on behalf of an employee in defense of a claim or suit for a

loss occurring because of acts or omissions within the scope of the

employee’s employment, regardless of whether the employee can or cannot

be held personally liable for the loss.

Given that PCSD was required to defend Falatic, it seems fair, indeed obvious, to infer that

PCSD was aware of the claim against Falatic from the outset. This conclusion is, of course,

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fortified by PCSD’s appearance via the same counsel. Either of these may be sufficient to find

notice to PCSD under some circumstances, but in concert they are conclusive under the facts of

this case.

PCSD cites two cases it claims show that notice should not be imputed to PCSD based on

either an identity of interest or shared counsel theory. First, PCSD relies on Wiley for the

proposition that the employment relationship alone is insufficient to find an identity of interest.

790 N.E.2d at 1060 (Ind. Ct. App. 2003). Wiley, however, does not stand for such a general

principle. Rather, Wiley holds that there is no identity of interest between the two defendants

when the record reveals only an agreement between the two defendants calling for one to supply

management services to the other. In Wiley, the plaintiff had been fired from his position as a

nursing assistant at a medical center. Id. at 1058. The plaintiff initially filed suit against Metro,

the owner of the medical center. BEP, the defendant to be added by amendment, had contracted

with Metro to provide management services to the center in the form of one 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.” Id. The court refused to

impute notice to BEP on the theory that one BEP employee worked at Metro when the lawsuit

commenced and “presumably” received notice. Id. at 1060. There was no identity of interest

between the two; indeed they may have been adverse. Moreover, BEP had no duty to defend

Metro at the time when notice would have needed to be imputed in order to satisfy Trial Rule

15(C)’s notice requirement. Id.

PCSD also relies on Seach v. Armbruster, 725 N.E.2d 875 (Ind. Ct. App. 2000), a

medical malpractice case initially filed against a hospital. The Court of Appeals declined to find

an identity of interest between the original defendant hospital and the added defendant nurse

where the nurse had left the employ of the hospital shortly after the incident and over a year

before the original complaint was filed. The court reasoned that the attorney representing the

hospital did not represent the nurse until the nurse received notice of the lawsuit through the

amended complaint. Id. at 879. Because the nurse was acting within the scope of her

employment when the injury occurred, it was not unusual that the hospital would provide

representation for her once she was named as a defendant. But that fact did not suggest that the

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nurse was represented by the attorney before she was named as a defendant. Nor did it suggest

that the complainant mistakenly named the hospital rather than the nurse.

The statutory duty of a government entity to provide representation for its employees

creates a much stronger unity of interest than the contractual agreement between two separate

corporate entities in Wiley. And this case presents the obverse of Seach, which tried to impute

notice to a former employee based on a suit against the employer. Plaintiffs here seek to impute

notice to the employer (PCSD) based on their suit against its current individual employee

(Falatic). In order for Falatic to receive the representation to which he was entitled, he

necessarily had to inform PCSD of the lawsuit. Inferring notice to a former employee when the

employer is sued is a much greater stretch than inferring notice to the employer (PCSD) when its

current employee is sued.

The purpose behind the notice requirement is to ensure that the defendant will not be

prejudiced in maintaining its defense on the merits. Red Arrow Stables, 725 N.E.2d at 113.

There is no question that PCSD, as indemnitor of Falatic, had an immediate incentive to marshal

the facts and evaluate Falatic’s defense. PCSD suggests that the loss of the statute of limitations

defense is enough to establish prejudice. However, “loss of the statute of limitations defense is

not the loss of a defense on the merits as contemplated by T.R. 15(C).” Soley v. VanKeppel, 656

N.E.2d 508, 511 (Ind. Ct. App. 1995). Rather, “demonstrating prejudice requires the party

seeking dismissal of the amended complaint to show that it was unfairly denied the opportunity

to present facts or evidence which it would have presented had the amendments been timely.”

Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 461 (3d Cir. 1996). Relation back is

meaningful only if the statute of limitations had run before the new party was added. If loss of a

limitations defense were sufficient to establish prejudice, Trial Rule 15(C)’s explicit extension of

the statutory period would serve no purpose. No amendment changing the party after the statute

of limitations had expired could ever relate back because the added defendant would always be

able to claim prejudice.

In summary, PCSD was required to indemnify Falatic, and counsel for PCSD filed

Falatic’s initial response to the Guzoreks’ complaint. Under these circumstances, notice to

PCSD of the lawsuit is fairly inferred.

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C. Knowledge of Mistake Requirement

In order for an amended complaint naming a new party filed after the expiration of the

statute of limitations to relate back to the date of the original complaint, the added party must

have known or “should have known that but for a mistake concerning the identity of the proper

party, the action would have been brought against him.” T.R. 15(C)(2). The language of this

mistake requirement, which originally appeared in FRCP 15(c) in 1966, was adopted in response

to several cases that had been dismissed where the plaintiffs, unaware of the technical

requirements of the law, had mistakenly named an institution rather than the proper individual

defendants, notably the Department of Health, Education, and Welfare or the nonexistent

“Federal Security Administration” rather than the Secretary of Health, Education, and Welfare.

Fed. R. Civ. P. 15 advisory committee’s note (1966 amendments) (“The policy of the statute

limiting the time for suit against the Secretary of HEW would not have been offended by

allowing relation back . . . . [T]o deny relation back [in these circumstances] is to defeat unjustly

the claimant’s opportunity to prove his case.”). Under the current version of Rule 15(C), courts

have found the mistake requirement to be satisfied in instances involving both mistakes of fact

and mistakes of law. 3-15 Ind. Pleading & Practice with Forms § 15.14 (2005). This is most

clearly demonstrated by federal cases allowing relation back where plaintiffs pursuing § 1983

claims had incorrectly named immune institutional entities rather than individual defendants.

See, e.g., Donald v. Cook County Sheriff’s Dep’t, 95 F.3d 548, 560 (7th Cir. 1996); Woods v.

IUPUI, 996 F.2d 880, 886-87 (7th Cir. 1993). “The ‘mistake’ condition does not isolate a

specific type or form of error in identifying parties, but rather is concerned fundamentally with

the new party’s awareness that failure to join it was error rather than a deliberate strategy.” In re

Integrated Res. Real Estate Ltd. P’ship Sec. Litig., 815 F. Supp. 620, 644 (S.D.N.Y. 1993).

Contrary to the suggestion of the dissent, the Rule is not limited to misnomers: “In view of the

history of the application of Rule 15(c), the phrase ‘a mistake concerning the identity of the

proper party’ should clearly not be read to limit its usefulness to cases of misnomer.” Id. (citing

3 Moore’s Federal Practice § 15-15[4.-2] at 15-167 (1992)). Specifically, a mistake of

applicable law can constitute a “mistake” as that term is used in Trial Rule 15(C). See, e.g.,

Donald, 95 F.3d at 560 (“[A] legal mistake suffices to bring the amendment within the purview

of Rule 15(c).”).

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Relying on Kuehl v. Hoyle, 746 N.E.2d 104, 109-10 (Ind. Ct. App. 2001), the Court of

Appeals held that the Guzoreks’ failure to name PCSD as a defendant in their action before the

expiration of the statute of limitations was not a result of mistaken identity, and PCSD would

have had no reason to believe otherwise, because at the time the Guzoreks filed their original

complaint they had all of the information necessary to sue PCSD. Guzorek, 1158 N.E.2d at

1163-64. In Kuehl, the plaintiff passenger was injured when the car in which she was riding was

struck by a car driven by James Hoyle but owned by Homer Somerville. The plaintiff sued

Hoyle and eight years after the statute of limitations had run attempted to add Somerville as a

defendant. The plaintiff asserted Somerville had failed to maintain the vehicle based on Hoyle’s

claim that the brakes failed at the time of the accident. Kuehl, 746 N.E.2d at 109. The Court of

Appeals reasoned that the question of brake performance had been documented as early as the

original police report from the accident, so it was reasonable for Somerville to assume that the

plaintiff had made a strategic choice to pursue a negligence claim against Hoyle. Somerville

therefore had no reason to believe that but for a “mistake” he would have been named in the

original complaint. Id. at 109-10.

We agree that where there is a basis for the plaintiff to assert liability against the party

named in a complaint, and there is no reason for another party to believe that the plaintiff did

anything other than make a deliberate choice between potential defendants, the mistake

requirement is not met. But the facts in this case do not support PCSD’s reasonable belief that it

had been deliberately omitted as part of the plaintiffs’ legal strategy. The Indiana Tort Claims

Act clearly provided Officer Falatic with immunity from liability for losses that resulted from

acts within the scope of his employment, and the Guzoreks alleged that Falatic was acting within

that scope. It is not a reasonable assumption that an opponent’s legal strategy was to sue a party

who was provided immunity by statute and to omit the party designated as the proper defendant.

The dissent characterizes the Guzoreks’ decision to sue the individual officer rather than

the sheriff’s department as a legal or tactical choice. The Chief Justice cites several cases

supporting the well-founded proposition that when a party makes a conscious choice of whom to

sue, that party cannot seek to add another party under 15(C) after the statute of limitations period

had run. We agree that such a choice cannot be considered a mistake under Rule 15(C). See

Nelson v. Adams USA, Inc., 529 U.S. 460, 467 n.1 (2000) (noting that the initial decision to

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assert its claim for costs and fees against corporation and not its sole shareholder and president

was a tactical choice and subsequent amendment did not relate back because there was no

“mistake” as that term is used in FRCP 15(c)); Rendall-Speranza v. Nassim, 107 F.3d 913, 919

(D.C. Cir. 1997) (characterizing the decision of an employee to sue only her supervisor as a

tactical choice and rejecting the argument that an amendment adding employer related back to

the original complaint); Cornwell v. Robinson, 23 F.3d 694, 705 (2d Cir. 1994) (finding that the

plaintiff’s decision to sue employer and various directors and not include other supervisors and

co-workers as a tactical choice because she “was not required to sue them”).

The cases the dissent cites are markedly different from the present one. None involves a

suit against a clearly immune party and all involve a rational decision to sue one party and not

another. The dissent points out that in some circumstances a claimant may choose to sue an

individual employee rather than the government to avoid contending with the contributory

negligence rule that governs Tort Claims Act suits against government units. Avoiding

contributory negligence by suing the individual may be a sensible decision if there is a genuine

issue as to a public employee’s scope of employment. But in this case there is no plausible basis

to conclude that Officer Falatic was outside the scope of his employment when he collided with

the plaintiff. He was, as noted, returning to his post from a run responding to an alarm. On these

facts a suit against the officer was dead on arrival, and the government unit that defended the

officer obviously knew that or should have known it. Such a mistake of applicable law—suing

the agency that is immune instead of the secretary who is not—is precisely the situation that gave

rise to Rule 15(c) in 1966.

Conclusion

The order of the trial court denying PCSD’s motion for summary judgment is affirmed.

Dickson and Rucker, JJ., concur.

Shepard, C.J., dissents with separate opinion in which Sullivan, J., concurs.

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Shepard, Chief Justice, dissenting.

Justice Boehm has properly rejected Porter County Sheriff’s Department’s various claims

about timing and failure of notice under Rule 15(c).

His assessment of what constitutes a “mistake of identity,” however, is against the weight

of federal and Indiana authority. I see no reason why Indiana should be an outlier on this

question, and the majority opinion does not undertake to provide a reason for placing us against

the mainstream.

Rule 15(c) requires that the added defendant “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)(2). When the United States Supreme Court added this provision in

1966 to the federal rules, its Civil Rules Advisory Committee of the Judicial Conference

indicated that the object was to allow a claimant “to correct a misnomer or misdescription of a

defendant” after the statute of limitations has run. Fed. R. Civ. P. 15 advisory committee’s note

(1966 amendments).

A recent review of the judicial decisions about this provision over the intervening forty

years concluded that courts have sanctioned relation back under circumstances consistent with

the Advisory Committee’s declared objective, that is, only for “literal mistakes” of name or

identity, “misnomers or misdescriptions.” Rebecca S. Engrav, Relation Back of Amendments

Naming Previously Unnamed Defendants Under Federal Rules of Civil Procedure, 89 Cal. L.

Rev. 1549, 1564 (2001). Such Indiana case law as exists is consistent with this objective. For

example, we have held that Rule 15(c) allows relation back to correct spellings of names or

companies, or to correct a mistaken belief about who owns a particular company. See, e.g.,

Waldron v. Wilson, 532 N.E.2d 1154 (Ind. 1989) (allowing relation back where complaint

named individual owners of farm instead of newly-named farm corporation due to mistake about

owner identity).

By contrast, it has been hornbook law that where there is no mistake of name or identity,

but someone simply chooses to sue another party, relation back will generally not be permitted.

61B Am. Jur. 2d Pleading § 869 (2006). The hornbook view tracks, as hornbooks usually do, the

prevailing case law of the federal circuits and the U.S. Supreme Court. See, e.g., Nelson v.

Adams, 529 U.S. 460, 467-68 (2000) (no mistake of identity, but instead, choice not to sue);

Cornwell v. Robinson, 23 F.3d 694, 705 (2nd Cir. 1994) (exclusion “matter of choice, not

mistake”); Louisiana-Pacific Corp. v. Asarco, Inc., 5 F.3d 431, 434 (9th Cir. 1993) (“no mistake

of identity, but rather a conscious choice of whom to sue”).

Our own precedent has followed this federal view. See, e.g., Kuehl v. Hoyle, 746 N.E.2d

104 (Ind. Ct. App. 2001). In Kuehl, the court held that Kuehl failed to satisfy the mistake of

identity requirement, noting “all of the information necessary to precipitate Kuehl’s action

against Somerville was available before the commencement of the litigation.” Id. at 109.

Kuehl’s only mistake was failing to bring suit before the statute of limitations had run, but this

mistake was not due to mistaken identity. Id. at 110.

Justice Boehm’s opinion thus swims upstream against both federal and Indiana authority

about the meaning of “mistake of identity” by sweeping within Rule 15(c) any mistake,

including legal bad calls about who among multiple possible defendants might be liable. His

opinion acknowledges the principle that where a party makes a “deliberate choice between

potential defendants, the mistake requirement is not met,” but does not apply this principle to the

facts before us. Justice Boehm reasons that the Guzoreks could not have deliberately planned “to

sue an immune party who was provided immunity by statute and to omit the party designated as

the proper defendant.” In effect, this focuses on the idea that the Guzoreks made a legal mistake

that could be remedied by Rule 15(c). Under such reasoning, virtually everyone who chooses to

name a given defendant and later finds the choice an unhappy one could lay legitimate claim to

“mistake of identity.”

Whether that be true or untrue, the inquiry under Rule 15(c) does not focus on whether

the claimant’s lawyer botched the job, but rather whether the party sought to be added after the

statute of limitations “knew or should have known that but for a mistake concerning the identity

of the proper party” he, she, or it would have been sued in the first place. On this point, the

majority opinion deals with the facts summarily and gets them wrong.

2

To be sure, the Sheriff’s Department knew that the Guzoreks were fully aware of Officer

Falatic’s position with the Sheriff’s Department, of the Department’s identity, and of the

Department’s potential liability. The Department knew all this just nineteen days after the

accident, because on August 30, 2000, the Guzoreks’ attorney sent a Tort Claims Act notice to

the Indiana Political Subdivision Risk Management Commission, the Porter County Sheriff’s

Department, the Porter County Attorney, the Porter County Commissioners, and the Porter

County Council. The notice stated in straightforward terms that at the time of the accident

Officer Falatic “was acting within the course and scope of his employment so as to make Porter

County liable for the negligence of its employees . . . .” (Appellant’s App. at 39.) This notice

demonstrates that the Guzoreks’ lawyer clearly had all the information about identity necessary

to file suit against Porter County Sheriff’s Department as early as August 30, 2000.

Nearly two years after the Guzoreks served the Sheriff’s Department with a Tort Claims

Notice, the Guzoreks’ lawyer filed a complaint against Falatic in the LaPorte Circuit Court. The

complaint did not identify Falatic as a police officer, but instead as “Joseph R. Falatic.” (Id. at 3-

4.) The complaint did not mention Falatic’s occupation, nor did it mention Porter County

Sheriff’s Department. Despite the Guzoreks’ knowledge of Falatic’s occupation and of the

Sheriff’s Department’s potential liability, the complaint was silent.

What was the Department to make of the complaint? There are a variety of

circumstances under which the Tort Claims Act does not protect public employees. Ind. Code §

34-13-3-5 (2006). Having received the Tort Claims Notice that claimed Officer Falatic was

acting within the scope of his employment and then receiving a complaint that did not even

mention his employment, they could plausibly conclude that Plaintiffs’ counsel, having had two

years to develop the facts and legal theories, had chosen to sue Falatic the individual.

Would any claimant’s lawyer ever choose to seek recompense against the individual

rather than from the government?

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We do not know much about the facts of this case. We do know, however, that

depending on the extent of the injuries, a claimant might have a better chance of obtaining a

judgment against a public employee personally. Not having to contend with the contributory

negligence rule is one obvious example. See Funston v. School Town of Munster, 849 N.E.2d

595, 598 (Ind. 2006) (“common law defense of contributory negligence remains applicable for

governmental defendants”).

The weight of authority is that such events are not “mistakes of identity.” The only

mistake here, if there was one, was a legal mistake about potential liability that is not properly

remedied by Rule 15(c). Rendall-Speranza v. Nassim, 107 F.3d 913, 918 (D.C. Cir. 1997) (“an

error of judgment about whether an employer is liable for the act of its employee is not ‘a

mistake’ within the intendment of Rule 15(c)”) (emphasis added); see also, Engrav, supra, at

1587 (“When it seems likely that the plaintiff knew the additional defendant existed but failed to

name it either through carelessness or because of poor legal advice, courts are likely to deny

relation back.”). The apparently contrary case cited by Justice Boehm, Donald v. Cook County

Sheriff’s Dep’t, 95 F.3d 548 (7th Cir. 1996), involved a lawsuit by a pro se prisoner, and the

court explicitly declared that it chose not to apply the regular requirements of the rule. Id. at

555, 559-60.

Rule 15(c) was amended to allow relation back where a plaintiff’s honest error results in

a mistake of identity. Rule 15(c) was not intended to save parties from the legal or tactical

choices made by their lawyers.

Sullivan, J., concurs.

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