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HomeMy WebLinkAbout00-7833 CivilJUSTIN T. WRIGHT, Plaintiff V. L1NDA R. MASSAL and DOUGLAS A. STEWART, Defendants V. LAURA MASSAL, Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-7833 CIVIL TERM CIVIL ACTION - LAW IN RE: PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT BEFORE GUIDO, J. OPINION AND ORDER OF COURT After reviewing the depositions and exhibits, as well as the briefs submitted by the parties, and having heard argument thereon, we make the following Findings of Fact, Conclusions of Law, and Order. FINDINGS OF FACT (1.) Plaintiff was in a motor vehicle accident on March 14, 1999. (2.) The police accident report listed Linda R. Massal as the owner and driver of one of the vehicles which struck plaintiff' s vehicle. (3.) Laura R. Massal was the actual driver of the vehicle. (4.) Laura's parents, Linda and Ronald Massal, had the vehicle insured through a policy with Nationwide Insurance (hereafter "Nationwide"). (5.) Nationwide was aware on March 16, 1999, that their policyholders' daughter, Laura, was the actual driver of the vehicle. NO. 2000-7833 CIVIL TERM (6.) (7.) (8.) (9.) (10.) (11.) (12.) (13.) (14.) Although Laura was a college student, her primary residence was with her Mother, Linda. On April 6, 1999, Nationwide received a copy of the police accident report which erroneously listed Linda R. Massal as the driver. Plaintiff s attorney sent correspondence to Nationwide advising of his representation at least as early as July 6, 1999. On August 18, 1999, Nationwide responded to plaintiff s counsel. The letter listed its "insured" as "Ronald and Linda Massal." Thereafter, the parties, engaged in settlement negotiations. ~ Laura Massal was also an "insured" under the policy. Nationwide's files listed Laura Massal as their "claimant." Nationwide never advised plaintiff s counsel that Laura rather than Linda was their claimant and insured. Nor was Laura's name ever mentioned in any correspondence or conversations with plaintiff s counsel. On October 30, 2000, plaintiffs counsel sent Nationwide a courtesy copy of the praecipe for Writ of Summons he intended to file. It was obvious that he was still under the mistaken assumption that Linda R. Massal was the driver of the vehicle since she, rather than Laura, was listed as the defendant. The cover letter accompanying the courtesy copy of the Writ of Summons named Linda R. Massal as Nationwide's "insured", just as she had been named in the prior correspondence from Nationwide. ~ The codefendant's insurer, Slate Farm, took the lead in negotiations with plaintiff's counsel. The majority of Nationwide's negotiations were with Slate Farm and revolved around how the carders would divide the payment of the claim. NO. 2000-7833 CIVIL TERM (16.) (17.) (18.) (19.) (20.) (21.) (22.) (23.) The cover letter provided as follows: Re: Our Client: Justin Wright Your Insured: Linda R. Massal Date of Loss: 3-14-99 Claim: #58-37B488755 Dear Ms. Toler: Enclosed please find a Writ of Summons which we are sending to you as a courtesy. We are having the Writ of Summons served upon the Defendant set forth therein. Our purpose in filing the Writ is to increase the speed with which this case will be ultimately decided, should negotiations between you and ourselves breakdown. We are still fully prepared to negotiate all aspects of this case with you without the need of your hiring an attorney. In that spirit, we would agree to do nothing further beyond service of the Writ without first giving you twenty (20) days written notice. As you know, you have the right to have the Prothonotary issue a nde to file a Complaint should you so desire. Please contact me upon receipt of the Writ, so that we may discuss how your company will proceed. The parties continued settlement negotiations after October 30, 2000. On November 1, 2000, Nationwide faxed a copy of the Writ to the attorney it retained to represent its insured. Linda R. Massal was served with the Writ of Summons on December 1, 2000. The insured's attorney received the entire file by December 4, 2000. He did not contact plaintiff' s counsel and did not enter his appearance until May 4, 2001, more than six weeks after the statute of limitations had expired. At that time, he also filed a Rule upon plaintiff to file a complaint. Plaintiff filed his complaint on May 24, 2001. Defendant's counsel filed an answer with new matter on July 1,2001, in which he identified Laura R. Massal rather than Linda R. Massal as the driver of the vehicle. NO. 2000-7833 CIVIL TERM (24.) (25.) Prior to filing the answer with new matter, neither Nationwide nor any of its insureds did anything to correct the obvious and understandable, albeit mistaken, belief held by plaintiff' s counsel that Linda R. Massal was the driver of the vehicle. We are satisfied by clear and convincing evidence that Nationwide "actively" misled plaintiff' s counsel into believing that Linda R. Massal rather than Laura R. Massal was the driver of the vehicle involved in this accident. CONCLUSIONS OF LAW (1.) Nationwide and its insured Laura R. Massal are estopped from raising the statute of limitations as grounds to oppose plaintiff' s Motion for Leave to File Amended Complaint. De Rugeriis v. Brener, 237 Pa. Super 177, 348 A.2d 139 (1975), Peaceman v. Tedesco, 51 Pa. Commonwealth 544, 414 A.2d 1119 (1980). McNair v. Weikers, 300 Pa. Super. 379, 446 A.2d 905 (1982) and See Lafferty v. Alan WexlerAgency, Inc., 393 Pa. Super 400, 574 A.2d 671 (1990). (2.) Plaintiff is entitled to file an Amended Complaint substituting Laura Massal as a Defendant in place ofLinda Massal. NO. 2000-7833 CIVIL TERM ORDER OF COURT AND NOW, this 29TM day of JANUARY, 2002, Plaintiff' s Motion for Leave to File an Amended Complaint naming Laura R. Massal as a Defendant in place of Linda R. Massal, is GRANTED. By the Court, Timothy A. Shollenberger, Esquire For the Plaintiff Donald R. Dorer, Esquire For the Defendant For the Additional Defendant Richard H. Wix, Esqure For Defendant Douglas A. Stewart :sld /s/Edward E. Guido Edward E. Guido, J.