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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Phillips v. Gieringer (03/11/2005) sp-5878

Phillips v. Gieringer (03/11/2005) sp-5878

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


TRACI A. PHILLIPS and         )
GREGORY PHILLIPS,             )    Supreme Court No. S-10909
             Appellants,      )    Superior Court No.
                              )    3AN-01-08965 CI
     v.                       )
                              )    O P I N I O N
CARL S. GIERINGER,            )
                              )    [No. 5878 - March 11, 2005]
             Appellee.             )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:  Robert A.  Rehbock,  Rehbock  &
          Rehbock, Anchorage, for Appellants.   Joe  M.
          Huddleston  and  Laurence  P.  Keyes,  Hughes
          Thorsness  Powell Huddleston  &  Bauman  LLC,
          Anchorage, for Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          FABE, Justice.


          Traci  Phillips was involved in an automobile  accident

with  Carl  Gieringer, who was insured under the same State  Farm

auto  insurance  policy as his father, Robert  Gieringer.   After

some  negotiation  and discussion of the case  with  State  Farm,

Phillips mistakenly named Carls father as the defendant driver in

the  complaint which she filed in a personal injury suit.   After

the  statute of limitations had run, Phillips moved to amend  the

complaint  to name Carl as a defendant.  Because Carl  maintained

that he was unaware of the lawsuit during the limitations period,

the  superior  court  dismissed  the  complaint  on  statute   of

limitations  grounds, concluding that the new complaint  did  not

relate  back to the timely filing against Carls father.  Phillips

appeals.   Because there is a rebuttable presumption that  notice

of  the complaint and knowledge of the mistake can be imputed  to

an insured through his insurance company, we reverse the superior

courts decision.


          On  August 16, 1999, Carl Gieringer and Traci  Phillips

were  involved  in an automobile accident in the Alaska  Regional

Hospital  parking lot.  Although Carl was not  a  minor,  he  was

insured  under the same State Farm auto insurance policy  as  his

father, Dr. Robert Gieringer, and was driving his mothers car  at

the  time  of the accident.  Phillips, a nurse, states  that  she

knew  of  Dr.  Robert Gieringer and learned at the  time  of  the

accident that the driver was his son.

          In April 2001 Phillips retained attorney Robert Rehbock

to  represent  her in her claim of injuries received due  to  the

accident.   Rehbock  contacted State Farm on April  30,  2001  to

inform the company that he would represent Phillips on her claim,

and  a  State  Farm  adjuster responded in May 2001,  asking  for

Phillipss medical records and stating that State Farm would  make

a settlement offer after reviewing the records and evaluating the

claim.   State  Farms  letter identified our  insured  as  Robert


          Phillips hand delivered a copy of a draft complaint  to

State  Farm  on  July  16, 2001, with a letter  to  the  adjuster

explaining  that  due  to  the steadily  approaching  statute  of

limitations deadline, Phillips would file a complaint to preserve

her  claim if a settlement could not be reached.  Two days later,

on  July  18, 2001, Phillips filed a complaint against Robert  E.

Gieringer  but  described the defendant in her complaint  as  the

driver  of the motor vehicle and directed all her claims  against

the driver.

          Although Phillips knew that the driver was the  son  of

Dr.  Robert Gieringer, Phillipss counsel mistakenly assumed  that

the  son  had the same name as the father.  The police report  of

the accident stated that the drivers name was Carl Gieringer, but

Phillipss counsel did not have a copy of the accident report when

drafting the complaint.

          In  December 2001 Phillips faxed a letter to the  State

Farm adjuster requesting Robert Gieringers address for service of

process.  The letter explained, [t]he only address we have is Dr.

Robert  E.  Gieringers office and it was Dr. Gieringers  son  who

should  be  properly served in this matter.  We do  not  wish  to

inconvenience  Dr.  Gieringer .  .  .  .   State  Farms  adjuster

provided  the  name of Dr. Gieringers son as Karl  Gieringer  and

noted  that  Karl was believed to be a student attending  college

outside  Alaska.  Phillipss attorney wrote to State Farm in  late

January  2002  to  apologize for his  error,  but  this  time  he

misidentified the son as Keith or Kieth.  Phillips asked a second

time  for  the sons address and requested that State Farm  inform

the  insureds of the complaint against the son and to direct  the

matter  to  the sons counsel.  Phillips also moved to  amend  the

complaint  to  name  Keith Gieringer as the  defendant,  and  the

superior court granted leave for the amendment.

          Counsel  for  State Farm, Joe Huddleston, responded  to

Phillips  in February 2002 stating:  we are not in a position  to

follow  your  instructions to notify Robert or Carl Gieringer  of

anything  because  no  action has been  filed  against  them.   I

suspect  that neither one of them has any knowledge of this  case

because  you  have never properly filed or served either  one  of

them.  The letter ended by stating the statute of limitations  on

this matter ran approximately six months ago.

          On  March 7, 2002, the superior court granted Phillipss

second  motion to amend the complaint to name Carl  Gieringer  as

the  defendant.   After  an unsuccessful effort  to  locate  Carl

Gieringer, Phillips moved for service by publication on April  2,

2002.   The  superior court granted the motion, finding  that  it

appeared  from  Phillipss affidavit that Defendant  has  received

constructive notice by the results of Plaintiffs efforts to serve

Defendant . . . .

          But Carl Gieringer stated in an affidavit signed in New

Hampshire that [t]he first time that I learned that a lawsuit had

been  filed  against me was in late April of 2002 or  early  May.

Carl  Gieringer  moved  to  dismiss  the  claim  on  statute   of

limitations grounds in May 2002.  Oral argument on the motion  to

dismiss  was  held  on  August  20,  2002.   The  superior  court

initially ordered that due to the lack of evidence regarding  the

length of Gieringers absence from the state, Phillips would  have

one  month to produce evidence that Gieringers absence  from  the

state brings his complaint within the statute of limitations.  On

November  25, 2002, the superior court granted Carls  motion  for

reconsideration  and his motion to dismiss, concluding  that  his

absence  from  the state did not toll the statute of  limitations

because Gieringer was at all times open to substituted service of

process  through  the  commissioner of  administration  under  AS

09.05.020  and  AS 09.05.040.  The superior court  further  ruled

that  Phillipss second amended complaint did not relate  back  to

the   timely   original  complaint  because  Carls   unchallenged

affidavit  conclusively establishes that he was  unaware  of  the

lawsuit  until  late  April or May of 2002.  Phillips  moved  for

reconsideration  of this order but his motion  was  denied.   The

court  entered judgment for Carl Gieringer and awarded  attorneys

fees on January 14, 2003.  Phillips appeals.


     A.   Standard of Review

          The superior court granted Carl Gieringers Alaska Civil

Rule 12(b)(6) motion to dismiss for failure to state a claim upon

which  relief  can be granted.  A motion to dismiss  pursuant  to

Rule 12(b)(6) requires that the plaintiffs factual allegations be

taken  as true, and that matters outside of the pleadings  should

be  excluded  from the superior courts consideration.1   In  this

case  the  superior court relied on Carl Gieringers  unchallenged

affidavit  when ruling that Phillipss amended complaint  did  not

relate back.  The superior court also held [e]ven when the  facts

are  construed  in  favor of Phillips, there remains  no  genuine

issue of material fact, and Mr. Gieringer is entitled to judgment

as  a matter of law.  This ruling implies that the superior court

may have converted the Rule 12(b)(6) motion to a summary judgment

motion.  Alaska Civil Rule 12(b)(7) provides, in relevant part:

          If,   on   a  motion  asserting  the  defense
          numbered  (6) to dismiss for failure  of  the
          pleading  to state a claim upon which  relief
          can  be granted, matters outside the pleading
          are  presented  to and not  excluded  by  the
          court, the motion shall be treated as one for
          summary  judgment and disposed of as provided
          in  Rule  56, and all parties shall be  given
          reasonable   opportunity   to   present   all
          material  made pertinent to such a motion  by
          Rule 56.
We  have consistently held that the superior court must expressly

state  whether it has excluded or considered matters  outside  of

the  pleadings when deciding a Rule 12(b)(6) motion to  dismiss.2

If  the superior court does not exclude materials outside of  the

pleadings,  it  is  under  a mandatory duty  to  treat  the  Rule

12(b)(6)  motion  as a summary judgment motion.3   The  reasoning

behind this rule is that a courts inquiry on a motion under  Rule

12(b)(6)  essentially is limited to the content of the complaint,

while   summary   judgment   involves  the  use   of   pleadings,

depositions, answers to interrogatories, and affidavits. 4

          In  the  present  case,  the superior  court  expressly

relied  on  Carl Gieringers affidavit and therefore was  under  a

duty  to  convert the Rule 12(b)(6) motion to a summary  judgment

motion.   Although  it is not clear whether  the  superior  court

properly  treated  the  motion as one for summary  judgment,5  we

elect  to  review the superior courts decision as  a  motion  for

          summary judgment because the superior court failed to limit its

inquiry to the content of the pleadings.

     B.   The  Amendment to Phillipss Complaint Relates  Back  to
          the Original Pleading.
            Alaska  Rule  of Civil Procedure 15(c) provides  that

when  the basic claim arises out of the conduct set forth in  the

original  pleading, an amendment changing the party relates  back

to  the  date  of  the original pleading if:  within  the  period

provided by law for commencing the action against the party to be

brought in by amendment, that party (1) 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  (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 the party.  We have also concluded that when the original

complaint  is  timely  filed,  the  language  within  the  period

provided  by  law  for  commencing  the  action  encompasses  the

reasonable time for service of process permitted by the rule  for

a named defendant.6  Because the factual allegations set forth in

Phillipss  amended complaint remain unchanged from  the  original

pleading,  we  proceed to consider whether  the  requirements  of

notice  and  knowledge were met within the 120 days  allowed  for

timely service after filing of the complaint.

          1.    Notice  of  the  action  within  the  statute  of

limitations period

          We  noted in Farmer v. State that the requirement  that

the party receive notice within the statute of limitations period

has  been  characterized  as the linchpin  of  Rule  15(c).7   We

recognized that [i]f the original pleading gives fair  notice  of

the  general  fact situation out of which the claim  arises,  the

defendant will not be deprived of any protection which the  state

statute  of  limitations  was designed  to  afford  him.8   Thus,

fairness  is  the touchstone of the relation back doctrine.9   We

must  determine whether the substituted or additional party [had]

fair  notice  of  the  cause  of action,  within  the  prescribed

          statutory period, such that the partys rights will not be

prejudiced.10  In applying this rule, we are governed by the well-

established  philosophy  that  the  rules  should  be   liberally

construed to insure that no plaintiff is deprived of his  day  in

court solely because of the intricacies and technical limitations

of  pleading.11   With these principles in  mind  we  proceed  to

consider  whether  Carl  Gieringer had  constructive  or  imputed

notice12  of  the institution of Phillipss complaint  within  the

statutory period such that his rights will not be prejudiced.

          We  noted in Farmer v. State  that a developing body of

law  .  .  .  allows notice under Civil Rule 15(c)  to  be  given

constructively where the additional party brought in by amendment

is represented by the same attorney as the existing parties.13  In

Farmer,  the plaintiff brought suit against the State  of  Alaska

and   two  state  troopers  five  days  before  the  statute   of

limitations deadline, naming one of the troopers as  a  John  Doe

defendant  because he did not know his proper name.14  On  appeal

Farmer  argued  that  his  amended  complaint  substituting  Mike

Metrokin  for the John Doe defendant should relate  back  to  the

date  of the original complaint because Metrokin had constructive

and  imputed  notice.15  We agreed with Farmer, and  adopted  the

identity  of  interest approach as to service on the  state,  its

agencies,  and  officers.16  We held in  Farmer  that  under  the

identity  of  interests  standard constructive  notice  could  be

imputed  to  Metrokin  through his counsel,  the  state  attorney

generals office, which represented all of the defendants from the

outset.  We pointed out that

          the  identity  of  interest standard  usually
          requires a nexus between the new and the  old
          parties  as  to the subject of the litigation
          and  an  analogous legal position within  the
          case itself.  Where the new and the old party
          share  the same attorney, imputed notice  can
          readily  be found and the dictates  of  Civil
          Rule 15(c) are nonetheless adhered to.[17]
          In  Farmer, we observed that imputation of notice under

the  identity of interest standard is particularly compelling  in

          suits where a citizen is seeking redress from the state.18  The

question  before  us  in  this case is whether  the  identity  of

interest  standard  may  also  apply  in  suits  against  private

parties.19   In  their treatise Federal Practice  and  Procedure,

Professors  Wright, Miller, and Kane explain that an identity  of

interest generally means that the parties are so closely  related

in  their  business  operations  or  other  activities  that  the

institution of an action against one serves to provide notice  of

the  litigation  to the other.20  Thus, a business  operation  or

other  private relationship may also give rise to an identity  of

interest.   Whether in a public or private context, the objective

of  the  theory  is to avoid the application of  the  statute  of

limitations when no prejudice would result to the party sought to

be added by the amendment.21

          Some  courts  have found that the identity of  interest

standard  allows notice to be imputed through a shared  insurance

carrier  when the insurer is contractually bound to  protect  the

interests  of  the insured.22  In Angel v. Ray, for example,  the

court held that there existed an identity of interest between  an

insured  and the insurance company because [u]nder the  terms  of

the  insurance, [the insurance company] was obligated to  protect

the  interests  of  the substituted defendant.23   In  Denver  v.

Forbes,  the court imputed notice through a shared insurer  under

factual  circumstances very similar to the   case  at  hand:  the

plaintiff in an auto collision mistakenly named the owner of  the

vehicle  as the defendant when in fact the driver was the  owners

daughter.24  The Denver court permitted the plaintiff to amend the

complaint  because the insurance company was aware of the  actual

facts  well  within the two-year period after the  accident,  and

[because]   no  harm will be done if the daughter is  substituted

for  the  mother as defendant in the action.25  But other  courts

have refused to impute knowledge from an insurance company to the

insured  on  the grounds that the existence of an insured-insurer

relationship  does  not  automatically  create  an  identity   of


          In routine cases, there will be an identity of interest

between  the insurer and the insured because insurance  companies

are typically required by contract to represent the interests  of

the  insured.   We  recognize, however, that in  some  cases  the

interests  of  the insured and insurer will not be  aligned.   In

such  cases, it would be inappropriate to impute notice from  the

insurance  company to the insured under an identity of  interests

theory.   We  therefore  hold that there is  a  presumption  that

notice  may be imputed from an insurer to the insured,  but  that

this presumption may be rebutted if the insured can show that its

interests conflict with the insurance company.

          In  the  present case, Carl was insured under the  same

State  Farm  policy as his father Robert.  On July  16  Phillipss

attorney  sent  the  State Farm adjuster  a  copy  of  the  draft

complaint along with a letter explaining that he would  file  the

complaint if a settlement was not reached before August  15.   It

is  undisputed that State Farm was aware of the potential suit in

late July, well within the time allowed for a timely commencement

of the action.27  There is therefore a presumption that the notice

to  State  Farm  may be imputed to Carl.  Nothing in  the  record

before  us  indicates  that Carl did not  share  an  identity  of

interest  with his insurance company; in fact, it became  evident

during the post summary judgment motion practice that State Farms

attorney  met  with  Carls mother to discuss  the  complaint  and

researched the statute of limitations issue on Carls behalf.  But

on  remand,  Carl  should  have the opportunity  to  present  any

contrary evidence on this issue.

          Rule 15(c) also requires that the notice of the action,

whether  actual or imputed, is such that the party  will  not  be

prejudiced in maintaining his defense on the merits.  It  appears

on  the  evidence  presented  to us that  Carl  has  suffered  no

prejudice in maintaining his defense.  In its denial of Phillipss

motion  for  reconsideration the superior court explicitly  found

          that Carls defense would not be prejudiced by imputing notice of

the  action  to  him.  Carl was covered under the same  insurance

policy  as  his father, and the evidence gathered by  State  Farm

regarding  the  accident would be identical to that  utilized  if

Carl  were named a defendant.28  The notice requirement  of  Rule

15(c) has therefore been met in this case.

          2.   Knowledge  of mistake concerning the  identity  of
               the proper party
          We last consider the knowledge and mistake requirements

of  Rule 15(c)(2).   This provision of the rule requires  that  a

party  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].29

          As  with our analysis of imputed notice, a strong  case

exists for imputing knowledge of the mistake to Carl.  In Farmer,

we  noted  that   [k]nowledge can be imputed to a  new  defendant

through  his attorney who also represented the party  or  parties

originally sued. 30  A number of courts have imputed knowledge of

mistake  through the insurance agent, and have held  that  it  is

necessary  to judge knowledge of the mistake from the perspective

of  [the insurance company].31  And some courts have applied  the

identity of interests theory to the mistake requirement.32

          In  the  present case we judge knowledge of the mistake

from  the perspective of the insurance company.  Because the text

of the complaint directed all allegations and claims of liability

against  the driver of the vehicle, the State Farm adjuster  knew

or  should  have  understood upon reviewing  the  complaint  that

Phillips made a mistake when she named Robert as the defendant.33

Other  courts have determined that when a clear mistake has  been

made  and an attorney or an insurer has knowledge of the mistake,

the  requirements of Rule 15(c)(2) are satisfied.34  In the  same

manner  in  which  there is a presumption that Carl  had  imputed

notice  of  the  action through State Farm, because  he  and  his

father were insured under the same policy, there is a presumption

that  Carl had imputed knowledge that he was the party who should

          have been sued.35  We therefore conclude that unless Carl can

rebut  the presumption of imputed notice and knowledge, Phillipss

amended complaint substituting Carl Gieringer relates back to the

original filing date.36


          We therefore REVERSE the judgment of the superior court

and REMAND this case for further proceedings consistent with this


     1     See  Martin  v.  Mears, 602 P.2d 421,  425-26  (Alaska

     2      Alaska  Natl  Ins.  Co.  v.  Jones,  993  P.2d   424,
427  (Alaska 1999); Reed v. Municipality of Anchorage,  741  P.2d
1181, 1184 (Alaska 1987); Martin, 602 P.2d at 426.

     3    Reed, 741 P.2d at 1184; Martin, 602 P.2d at 426.

     4    Martin, 602 P.2d at 426 n.5 (quoting 5 Charles Wright &
Arthur Miller, Federal Practice and Procedure  1356, at 592 (1969
& Supp. 1979)).

     5     When  considering a summary judgment motion the  court
should  draw all reasonable inferences in favor of the nonmovant.
Barios  v. Brooks Range Supply, Inc., 26 P.3d 1082, 1085  (Alaska

     6     West  v.  Buchanan, 981 P.2d 1065, 1068 (Alaska  1999)
(citing Alaska R. Civ. P. 15(c)).

     7    788 P.2d 43, 48 (Alaska 1990).

     8    Id. at 47.

     9    Id.

     10    Id.

     11    Id.

     12    We note that in her motion for reconsideration Phillips
presented  evidence from Huddlestons billing records which  might
create  a material question of fact as to Carls actual notice  of
the  complaint.   As  that evidence was not before  the  superior
court  when  it  made  the  summary judgment  ruling  from  which
Phillips appeals, we do not address this issue.

     13    788 P.2d at 49.

     14    Id. at 44-45.

     15    Id. at 46.

     16    Id. at 49.

     17    Id. (internal citation omitted).

     18    Id. at 49.

     19     For example, Professors Wright, Miller, and Kane note
that  [a]n identity of interest has been found between  a  parent
and  a  wholly  owned  subsidiary, as  well  as  between  related
corporations  whose  officers,  directors,  or  shareholders  are
substantially identical and who may have similar names or conduct
their  businesses from the same offices.  Charles Alan Wright  et
al.,  Federal  Practice and Procedure  1499, at  147-49  (2d  ed.

     20    Id. at 146.

     21    Id.

     22    Id. at 150 & n.9.

     23    285 F. Supp. 64, 66 (E.D. Wis. 1968).

     24    26 F.R.D. 614, 616 (E.D. Pa. 1960).

     25    Id.

     26    See Pompey v. Lumpkin, 321 F. Supp. 2d 1254, 1263 (M.D.
Ala.  2004)  (stating that shared insurance does  not  create  an
identity of interest when original and substituted parties  might
not have  identity of interests); Garcia v. Peter Carlton Enter.,
Ltd.,  717  F.  Supp.  1321, 1326 (N.D. Ill. 1989)  (noting  that
insured  and  insurance  companies  sometimes  have  antagonistic
interests); Rogatz v. Hospital General San Carlos, 89 F.R.D. 298,
300  (D.P.R.  1980)  (same);  Alvarez v. Meadow  Lane  Mall  Ltd.
Pship,  560 N.W.2d 588, 592 (Iowa 1997) (Notice to an insurer  is
not notice to an insured.).

     27    Phillips filed suit against Robert E. Gieringer on July
18,  2001,  but did not immediately serve him with  process.   On
January 3, 2002, the superior court found that Phillips had shown
good  cause for not having served the defendant and gave Phillips
an  additional 120 days to complete service.  In March  2002  the
court  granted Phillips leave to file an amended complaint naming
Carl  Gieringer as the defendant.  Phillips completed service  on
Carl Gieringer by publication on May 23, 2002.

     28    Cf. Siemion v. Rumfelt, 825 P.2d 896, 900 (Alaska 1992)
(finding that substituting son as defendant for father would  not
prejudice sons defense because son was covered under his  fathers
insurance  policy,  [and] the evidence gathered  by  his  insurer
regarding  the accident would be identical to that utilized  were
[the son] a named  defendant).

     29     West,  981  P.2d at 1068 (citing Alaska  R.  Civ.  P.

     30     Farmer, 788 P.2d at 49 n.16 (citing Williams v. Ward,
553 F. Supp. 1024, 1026 (W.D.N.Y.1983)).

     31     Red Arrow Stables, Ltd. v. Velasquez, 725 N.E.2d 110,
116  (Ind. App. 2000); Smith v. TW Servs., Inc., 142 F.R.D.  144,
149  (M.D.  Tenn. 1991) (In this case we must judge knowledge  of
the  mistake from the perspective of the insurance company.); see
also  Craig v. Ludy, 976 P.2d 1248, 1251 (Wash. App. 1999) ([T]he
estate  (through  its  insurer) knew that,  but  for  the  Craigs
mistake, the action would have been brought against it.); Korn v.
Royal Caribbean Cruise Line, Inc., 724 F.2d 1397, 1401 (Cal. App.
1984) (finding that there was sufficient community of interest to
impute  knowledge to the defendant through sales agent, operating
agent, and insurance company).

     32    Advanced Power Sys., Inc. v. Hi-Tech Sys., Inc., 801 F.
Supp. 1450, 1457 (E.D. Pa. 1992) (The notice and mistake elements
are  particularly  intertwined when, as here, there  is  a  close
relation between the original party and the party to be added. In
such  a  situation, failure to join the connected party  is  more
immediately recognizable as error, and it is easier to  establish
that the new party should have known that, but for a mistake, she
would have been included.  Therefore, courts have generally  held
that  the mistake condition is satisfied when the original  party
and  added  party have a close identity of interests.  )  (citing
Sounds Express Intl, Ltd. v. Am. Themes & Tapes, Inc., 101 F.R.D.
694,  697  (S.D.N.Y.1984));  Sounds Express, 101  F.R.D.  at  697
(identity  of  interests  has  also  served  as  touchstone   for
determining whether the new party knew or should have known  that
but  for  a mistake in identity, he would have been sued  in  the
first  instance) (citing Florence v. Krasucki, 533 F. Supp. 1047,
1053  (W.D.N.Y.1982); Holden v. R.J. Reynolds  Indus.,  Inc.,  82
F.R.D.  157,  161 (M.D.N.C.1979); see also Johnson v.  Goldstein,
850  F. Supp. 327, 330 (E.D. Pa. 1994); cf. Hernandez Jimenez  v.
Calero Toledo, 604 F.2d 99, 103 (1st Cir. 1979) (The identity  of
interests concept, however, bears only on the requirement of Rule
15(c)(1)  that  the  added  party received  such  notice  of  the
institution   of   the  action  before  the  limitations   period

     33     Sulzen  v. Williams, 977 P.2d 497, 504-05 (Utah  App.
1999)  (concluding that the trial court abused its discretion  in
refusing  to allow the Sulzens to amend their complaint  so  that
the  caption  matched  the text of the complaint  when  the  text
alleged that the children, and not the mother, were the negligent

     34    Ayala Serrano v. Collazo Torres, 650 F. Supp. 722, 728-
29 (D.P.R. 1986).

     35    See id.

     36    Because we reverse the superior courts ruling, we need
not   address  Phillipss  claims  regarding  tolling   under   AS