2005-064, JUAN PEREZ v. PIKE INDUSTRIES, INC. & a.

Department of Transportation (DOT), alleging his injury “was caused by the the New Hampshire Department of Transportation, and the New Hampshire negligence claims against the State of New Hampshire, the Commissioner of the edge of the highway. On or about August 19, 2003, the plaintiff brought allegedly injured his ankle when his foot sank into a patch of soft pavement on truck on West Main Street in Newton. While loading the furnitur e, the plaintiff course of his employment, the plaintiff was loading furniture onto a delivery The record supports the following facts. On August 25, 2000, in the

limitations. We affirm. Industries, Inc. (Pike) on the ground that it was barred by the statute of (McGuire, J.) dismissal of his negligence claim against defendant Pike GALWAY, J. The plaintiff, Juan Perez, appeals the Superior Court’s

brief and orally), for defendant Pike Industries, Inc. Wadleigh, Starr & Peter, P.L.L.C., of Manchester (Todd Hathaway on t he

Edward M. Gainor, of Amherst, by brief and orally, for the plaintiff.

No. 20 05 - 064 Merrimack

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

and could not reasonably have been discovered at the time of the act or injury and its causal relationship to the act or omission were not discovered Under the discovery rule exception to the statute of limitations, when the

exception. Id. shifts to the plaintiff to raise and prove the applicability of the discovery rule of action was not brought within three years of the alleged act, the burden N.H. 180, 181 (1995). However, once the defendant establishes that the cause statute of limitations constitutes an affirmative defense. Glines v. Bruk, 140 of” unless the discovery rule exception applies. RSA 508:4, I (1997). The or libel, may be br ought only within 3 years of the act or omission complained Pursuant to RSA 508:4, “all personal actions, except actions for slander

to the “agents, servants, and employees” of the State. We disagree. 508:4, I, applies; and ( p. 2 2) his initial writ named Pike as a party by its reference year statute of limitations because: (1) the discovery rule excepti on in RSA On appeal, the plaintiff asserts his claim was not barred by the three -

pled do not constitute a basis for legal relief. Id. the plaintiff, we will u phold the granting of the motion to dismiss if the facts pleadings and construe all reasonable inferences in the light most favorable to ( p. 2 2004). Although we assume the truth of the facts as alleged in the plaintiff’s per mit recovery.” Benson v. N.H. Ins. Guaranty Assoc., 151 N.H. 590, 594 plaintiff[’s] allegations are reasonably susceptible of a construction that would “The standard of review in considering a motion to dismiss is whether the

court’s dismissal of his claim against Pike. order dated June p. 2 28, 2005. W e now address the plaintiff’s appeal of the trial the trial court’s dismissal of the plaintiff’s claims against the State and DOT by The plaintiff then appealed the trial court’s decision to this court. We affirmed 30, 2004, the trial cou rt dismissed the plaintiff’s claims against all defendants. plaintiff’s claim on statute of limitations grounds. By order dated December the plaintiff’s claims. One month later, Pike filed a motion to dismiss the By motion dated November 1, 2004, the State and DOT moved to dismiss

on September p. 2 23, 2 004. paving at the time of the Plaintiff’s injury.” The trial court granted this motion therefore may be liable for the condition of the roadway and in particular the subcontract with the state for maintenance of the roadway in question, and defendant, alleging “[d]iscovery has revealed that Pike Industries held a On September 3, 2004, the plaintiff moved to add Pike as a party

workmanship in the paving and patching of the area at the edge of the road.” employees of the Department of Transport ation to exercise due care and proper failure of defendant State of New Hampshire, through the agents, servants, and p. 3 3

to investigate and identify the subcontractor who actually applied the claim against Pike, the trial court correctly reasoned that the plaintiff’s failure alleged negligent paving when the injury occurred. In d ismissing the plaintiff’s Here, the plaintiff knew of his injury and its causal connection to the

182. investigate the identity of the manufacturer or installer of the machinery. Id. at apply the discovery rule based upon the plaintiff - employee’s failure to there was some causal link to the defective loading dock,” and we declined to Glines, we reasoned that the plaintiff knew of both the injury and “the fact that the three - year statu te of limitations had run. Glines, 140 N.H. at 181 - 82. In defective equipment until learning of their identities, through discovery, after to include in his lawsuit either the manufacturer or installer of the alleged plain tiff - employee, who was allegedly injured by a defective loading dock, failed We have previously declined to apply the discovery rule where the

subcontracted with Pike to pave that portion of the highway. We disagree. of limitations was, therefore, tolled until he learned that the State had asserts this information was only obtainable throu gh discovery, and the statute identity of the company subcontracted to complete those services. The plaintiff subcontracted out the paving of that portion of the highway; and (2) the occurred, he c ould not reasonably have known: (1) that the State the alleged negligent paving. Rather, the plaintiff argues that when the injury plaintiff was aware of the causal connection between the plaintiff’s injury and when it occurred on August 25, 2000. Nor do the parties dispute that the Here, neither party disputes that the plaintiff was aware of the injury

defense to an old claim.” Id. (quotations omitted). time it is unfair to require the defendant to attempt to piece together his legitimately have peace of m ind; it also recognizes that after a certain period of statute of limitations establishes a deadline after which the defendant may Donnelly v. Eastman, 149 N.H. 6 p. 3 31, 634 (2003) (citations omitted). “The notice to an adverse party and to eliminate stale or fraudulent claims.” The primary purpose of the statute of limitations is to “ensure ti mely

alleged injury or its causal connection to the alleged negligent act. plaintiff did not discover, and could not reasonably have discovered, either the defendant. Id. Thus, the discovery rule exc eption does not apply unless the been injured and that his injury was proximately caused by conduct of the run, the plaintiff must know or reasonably should have known that he has two - pronged rule requires that, before the statute of limitations will begin to League Entm’t v. Brox Indus., 1 p. 4 49 N.H. 480, 485 (200 p. 3 3); RSA 508:4, I. This injury and its causal relationship to the act or omission complained of.” Big discovers, or in the exercise of reasonable diligence should have discovered, the omission, the limitations period only begins to run when “the plainti ff 4

case of misnomer, which involves the misdescription of a properly served party, pol icy of liberally allowing amendments permits the addition of a party in the In reversing the dismissal of the plaintiff’s case, we recognized that our

the trial court’s denial of his motions to amend. Id. at 627. name the intended defendant. Id. at 626. The plaintiff subsequently appealed party defendant, and moved to amend both his writ and his declaration to limitations had expired, the plaintiff learned that he had named the wrong real object of the plaintiff’s suit. Id. Subsequently, after the statute of owner assumed, a s of the date of service of process, that his company was the After speaking with the agent for service of process, the intended defendant’s agent for service of process for both corporations was the same person. Id. name at various times since the inception of each entity, and the clerk and the Both the named defendant and the intended defendant had utilized a simil ar and its trade name was the same as the named defendant’s name. Id. at 627. 11 p. 4 4 N.H. at 626 - 27. The intended defendant was Ralph H. Smith Corporation, Smith Company prior to the expiration of the st atute of limitations. Dupuis, explosion, the plaintiff filed suit against Smith Properties, Inc., d.b.a. R.H. In Dupuis, an action to recover damages for injuries resulting from a gas

disagree. were alluded to in the original writ, o nce their identities became known.” We his subsequent amendment was “to simply clarify the previous wrongdoers who servants, and employees,” satisfied the statute of limitations. He asserts that the alternative, that his initial writ, by naming the State through its “agents, Relying on Dupuis v. Smith, 11 p. 4 4 N.H. 625 (1974), the plaintiff argues, in

so. and eliminate stale claims. See Donnelly, 1 p. 4 49 N.H. at 634. We decline to do purpo ses of the statute of limitations — to ensure timely notice to the defendant parties during the lengthy discovery process, it would circumvent the primary claim by filing a lawsuit and then waiting to identify other potential responsible subcontractor. Were we to allow plaintiffs to avoid investigating all parties to a a subcontractor to complete the paving, and, if so, the identity of that was expected to investigate, with reasonable diligence, whether the State hired the distributor and installer of the defective machine, the plaintiff in this case road. Just as the plaintiff in Glines was expected to in vestigate the identity of required to ascertain the identity of the person or entity that actually paved the under these circumstances, to anticipate that some investigation will be The State is an entity, and it is not unreasonable to expect a plaintiff,

paved that portion of the highway. See Glines, 1 p. 4 40 N.H. at 182. known to include “as a possible wrong - doer” the subcontractor who actually r ule. Similar to the plaintiff in Glines, the plaintiff in this case should have pavement to the highway does not warrant the application of the discovery p. 5 5

concurred. BRODERICK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ.,

dismissal of the plaintiff’s claim against Pike as untimely. Accordingly, we conclude Glines is controlling and affirm the trial court’s

“amending” the writ for “clarity” after the statute of limitations had run. generalized class of defendants in the original writ, and subsequently circumvent the applicable statute of limitations by incorporating a broad limitations. This position is untenable and would potentially allow plaintiffs to “clarified” by subsequent amendment after the e xpiration of the statute of defendants is specific enough to qualify as a named party that can be the plaintiff’s contention that a generalized assertion of a class of potential are aware of no prec edent, and the plaintiff provides us with none, to support such as Pike, the plaintiff failed to specifically identify Pike as a defendant. We employees of the State,” which the plaintiff argues includes subcontractors Moreover, other than the generalized inclusion of “agents, servants or

prejudice Pike. amendment after the statute of limitations had expired in this case would this instance. Thus, unlike the situation in Dupuis, allowing the plaintiff’s manner of delivery, see Dupuis, 114 N.H. at 630, no such notice occurred in limitations. While actual receipt of notice will cure technical defe cts in the receive actual notice of this pending suit prior to the expiration of the statute of in his claim. Furthermore, unlike the defendant in Dupuis, Pike did not plaintiff failed to name Pike, or any other subcont ractor, as a party - defendant service made prior to the expiration of the statute of limitations. Here, the Dupuis, this is not a case of misnomer or mistaken identity. Nor is it a case of We are not persuaded by th e plaintiff’s reliance upon Dupuis. Unlike

prior to the expiration of the statute of limitations. Id. crucial fact was that the intended defendant received actual notice of the suit intent to sue the intended defendant. Id. at 629. We concluded that the intended defendant’s trade name with the wrong defendant man ifested his the plaintiff’s motions to amend, reasoning that the plaintiff’s association of the party is introduced. Id. Thus, in Dupuis, we reversed the trial court’s denial of been duly notified,” whereas in a case of mistake n identity, an entirely new case of misnomer is to “improve the description of the party who has already before the court. Id. at 628. We reasoned that the effect of amendment in a cases involving mistak en identity, where the wrong party had been brought whereas it does not generally permit the addition of an entirely new party in