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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sellers v. Kurdilla (8/12/2016) sp-7116

Sellers v. Kurdilla (8/12/2016) sp-7116

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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, email  

                                                                                                                    

          corrections@akcourts.us.  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



LINDA  SELLERS,                                              )  

                                                             )         Supreme  Court  No.  S-15685  

                               Petitioner,                   )  

                                                                                                                              

                                                             )         Superior Court No. 4FA-14-01376 CI  

                    v.                                       )  

                                                                                           

                                                             )         O P I N I O N  

                                        

STEPHAN KURDILLA and                                         )  

                

DANIEL STROUD,                                                                                             

                                                             )         No. 7116 - August  12, 2016  

                                                             )
  

                               Respondents.                  )
  

                                                             )
  



                                                                                                             

                    Petition for Review from the Superior Court of the State of  

                                                                                                  

                    Alaska,        Fourth        Judicial       District,       Fairbanks,         Bethany  

                                                                                                           

                    Harbison,  Judge,  on  appeal  from the  District  Court  of the  

                                                                                    

                     State of Alaska, Fairbanks, Ben Seekins, Judge.  



                                                             

                    Appearances:  Sandra K. Wilson, Stepovich & Vacura Law  

                                                                                                          

                    Office,  Fairbanks,  for  Petitioner.                     Reilly  Cosgrove  and  

                                                                                                            

                    Michael C. Kramer, Kramer and Associates, Fairbanks, for  

                    Respondents.  



                                                                                                           

                    Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and  

                                                

                    Bolger, Justices.  



                                          

                    MAASSEN, Justice.  



I.        INTRODUCTION  



                                                                                                                              

                     Several men  were  in  a  car that  rear-ended  the plaintiff's  vehicle.   The  



                                                                                               

plaintiff sued the car's owner, believing he had been driving.  The car's owner moved  



                                                                                                                                 

to dismiss the lawsuit on the basis of an affidavit from a second man, who claimed he  


----------------------- Page 2-----------------------

was driving at the time of the accident.  The plaintiff amended her complaint to name  

                                                                                                                           



both men.  The second man then moved to dismiss the claim against him, arguing that  

                                                                                     



under Alaska Civil Rule 15(c) the plaintiff's amended complaint did not relate back to  

                                                                                                                                 



the  date  of  her  initial  filing  and  the  claim  was  therefore  barred  by  the  statute  of  

                                                                                                                                



limitations.  The district court agreed and dismissed the claim.  The plaintiff proceeded  

                                                                                                                    



to trial against the car's owner, who defended on grounds that he had not been driving.  

                                                                                                                                     



The jury found against the plaintiff, who then appealed to the superior court, arguing that  

                                                                                                                              



the district court erred when it dismissed her claim against the second man. The superior  

                                                                                                                        



court affirmed the district court's decision.  

                                                                   



                    We granted review.  We conclude that the plaintiff's amended complaint  

                                        



met the requirements for relation back under Rule 15(c), and we therefore reverse the  

                                                                                                                               



superior court's decision.  

                                        



II.       FACTS AND PROCEEDINGS  

                                  



          A.        Facts  



                    Linda Sellers's car was rear-ended by a Dodge Durango on January 4,  

                                                                                                                                 



2010.  The Durango carried at least three men, including the owner, Stephan Kurdilla,  

                                                                                                                      



and  Daniel  Stroud.               Sellers  later  attested  by  affidavit  that  the  Durango's  driver  

                                                                                                                          



approached  her  vehicle,  identified  himself  as  Stephan  Kurdilla,  and  gave  her  an  

                                                                                                                        



insurance identification card with Kurdilla's name on it.  She attested that she copied  

                                                                                                                          



down the information from the card.  Her passenger, Bonnie Largen, affirmed in her  

                                                                                                                               



affidavit that she saw the Durango's driver hand Sellers an insurance identification card,  

                                                                                                                             



heard Sellers identify the driver as Kurdilla, and saw her copy down the information  

                                                                                                                  



from the card.  The police did not respond to the scene of the accident but instead had  

                                



Sellers file a crash report, in which she identified Kurdilla as the Durango's driver.  

                                                                                                                    



                                                               -2-                                                         7116
  


----------------------- Page 3-----------------------

                                         On January 11, 2010, State Farm mailed a claim acknowledgment notice         



which identified "Our Insured" as Daniel Stroud.                                                                                                          But in its seven subsequent letters                  



spanning January to July, State Farm identified "Our Insured" as Stephan Kurdilla.                                                                                                                                                                              



                                         In   June 2010,                              attorney  Michael Stepovich notified                                                                                 State Farm that he                                  



represented Sellers "in regard to injuries she sustained in a rear-ending by your insured";                                                                                                                                                 



in his letter he named Kurdilla as "Your Insured."                                                                                                          State Farm replied on July 30, this                                                             



time identifying "Our Insured" as Stroud.                                                                                        Its next two letters identified Kurdilla as its   



insured; its next two named Stroud; and the two after that again named Kurdilla.                                                                                                                                                                     All in   



all, State Farm identified Kurdilla as its insured eleven times and Stroud four times in its                                                                                                                                                                     



correspondence with Stepovich.                                    



                    B.                   Proceedings  



                                         On January 4, 2012, the last day before the statute of limitations expired,            



 Sellers filed a complaint naming Kurdilla as the defendant and alleging that he had been  

                                                                                                                                                                                                                                                         

driving the Durango at the time of the accident.1  

                                                                                                                                                                                                                                              

                                                                                                                                                    Sellers had difficulty locating Kurdilla  



                                                                                                                                                                                                                                                            

for service of process, and State Farm declined to accept service on his behalf.   On  



                                                                                                                                                                                                                                                       

April 6, 2012, Sellers filed an affidavit of due diligence and a motion for leave to serve  



                                                                                                                                                                                                                                                              

Kurdilla by publication, which the court granted on April 16.   Sellers published the  



                                                                                                                                    

required notice four times in May and sent a certified copy to Fort Wainwright, where  



                                                                                                                                                                                                                                                     

Kurdilla had been stationed.   Eventually Kurdilla was served at Fort Bragg, North  



                                                                                      

Carolina, on May 11, 2012.  



                                                                                                                                                                                                                                            

                                         Michael Kramer, the attorney State Farm retained to represent Kurdilla,  



                                                                                                                                                                                                                                                            

later attested by affidavit that Kurdilla called him on May 16, 2012, and told him that  



                                                                                                                                                                          

 Stroud was the driver and that he (Kurdilla) had called Stepovich earlier that day with  



                     1                   See AS 09.10.070 (providing that actions for tort and personal injury must  

                                                                                                                                                                                                                                                         

be brought within two years).  

                                                                      



                                                                                                                                -3-                                                                                                                                  7116  


----------------------- Page 4-----------------------

Stroud's contact information. Stepovich, however, disputes having received such a call  

                                                                                                                               



from Kurdilla; he contends that it was not until a few months later, when Kurdilla filed  

                                                                                                                              



a motion to dismiss the case, that Sellers first had notice that Stroud claimed to be the  

                                                                                                                                



driver.  

            



                    Kramer filed his entry of appearance on Kurdilla's behalf on June 1.  On  



August 16 Kurdilla filed a motion to dismiss supported by a two-line affidavit from  

                                                                                                                             



Stroud asserting that he, Stroud, had been driving at the time of the accident.  Sellers  

                                                                                                                          



opposed the motion to dismiss and filed an amended complaint that added "and/or Daniel  

                                                                                                                           



Stroud" to the allegations of driver negligence.  Sellers also moved for a continuance  

                                                                                                                  



pursuant to Alaska Civil Rule 56(f) so that she could investigate whether Stroud was  

                                                                                                                               



indeed the driver and whether he and Kurdilla had colluded to hide the driver's identity.  

                                                                                                                                      



                     Stroud, also represented by Kramer, then filed a motion to dismiss the new  

                                                                                                                               



claim against him on the grounds that Kurdilla's phone call to Stepovich, together with  

                                                                                                                              



State Farm's letters, had put Sellers on early notice that Stroud was actually the driver  

                                                                                                  



and that the statute of limitations on a claim against him had now expired.  Stroud also  

                                                                                                                               



directly disputed Sellers's description of the relevant events by attesting in a supporting  

                                                                                                                     



affidavit that at the time of the collision both he and Kurdilla approached Sellers's car,  

                                                                                                                               



that Kurdilla "gave her his insurance card and clearly identified himself as the owner of  

                                                                                                                                  



the vehicle, and [that] [Stroud] clearly identified [him]self as the driver of the vehicle."  

                                                                                                                                      



                     1.       District court proceedings  

                                                      



                    The district court denied Kurdilla's motion to dismiss, finding that there  

                                                                                                                             



was a question of material fact as to whether he had been driving the Durango.  But the  

                                                                                                                                



court granted Stroud's motion to dismiss the claim against him, finding that State Farm's  

                                                                                                                          



first letter to Sellers in January 2010 - one of the four that identified Stroud as the  

                                                                                                                                



company's insured - should "have put [Sellers] on notice of a duty to investigate as to  

                                                                                                                                  



                                                                -4-                                                         7116
  


----------------------- Page 5-----------------------

a possible second driver, and that  would be sufficient for the statute of limitations  

                                                                                                                   



argument that's being made in [this] case."  The court also denied Sellers's Rule 56(f)  

                                                                           



motion seeking a continuance to conduct more discovery.  

                                                                         



                    TheclaimagainstKurdillaproceeded totrial. Kurdillapresented testimony  

                                                                                                                     



- his own, Stroud's, and that of another passenger in the car - that Stroud, not he, was  

                                                                                                                              



driving at the time of the accident, and the jury returned a defense verdict.   Sellers  

                                                                                                                         



appealed to the superior court, arguing that the district court erred by dismissing her  

                                                                                                                               



claim against Stroud and by denying her motion for a Rule 56(f) continuance.  

                                                                                                                        



                    2.        Superior court appeal  

                                                        



                    On appeal, the superior court analyzed Rule 15 and concluded that there  

                                                                                                                            



was no identity of interest between Kurdilla and Stroud that would allow Kurdilla's  

                                                                                                                    



knowledge of the lawsuit to extend Sellers's time for bringing a claim against Stroud.  

                                                                                                                                     



The court noted that "Stroud and State Farmpresumably have an identity of interest," but  

                                                                                                                               



it concluded that Sellers had abandoned any argument based on that relationship.  The  

                                                                                                                              



superior court also observed that Kurdilla had been served more than 120 days after  

                                                                                                                             



Sellers filed her complaint and that the trial court had not found good cause for a lack of  

                                                                                                                                 



timely service, meaning that Sellers could not meet another requirement of Rule 15(c)  



- notice of the lawsuit within the time allowed for service. The superior court affirmed  

                                                                                                                       



"[t]he district court's decisions regarding the relation back and identity of interests  

                                                                                                                       



doctrines."  



                    The superior court declined to resolve another of Sellers's arguments -  

                                                                                                                                



that the Servicemembers Civil Relief Act tolled the statute of limitations with respect to  

                                                                                                                                 



Stroud while Kurdilla, a member of the armed services, was deployed  overseas -  

                                                                                                                               



because the argument was raised for the first time on appeal.  But the superior court did  

                                                                                                                               



reverse and remand the district court's denial of Sellers's Rule 56(f) motion, noting that  

                                                                                                                              



                                                               -5-                                                         7116
  


----------------------- Page 6-----------------------

 Sellers had not been dilatory in her discovery efforts and that there were adequate                                                                                                                                                                                                                                                                                         



reasons to give her more time.                                                                                                                      Finally, the superior court reversed the district court's                                                                                                                                                                          



dismissal of Stroud fromthe case and remanded to the district court to determine whether                                                                                                                                                                                                                                                                                            



there was a viable claim for fraud against the two men and, if so, when it had accrued.                                                                                                                                                                                                                                                                                                                                     



                                                               3.                              Supreme court petition                                                       



                                                                Sellers filed a petition asking us to review the district and superior courts'                                                                                                                                                                                                                                          



holdings on the issues of identity of interest and relation back under Civil Rule 15(c).                                                                                                                                                                                                                                                                                                                                    



We granted the petition.                                                                                                Sellers argues:                                                            (1) that she made a mistake, not a deliberate                                                                                                                     



tactical choice, when she identified Kurdilla as the defendant driver, and Rule 15(c)                                                                                                                                                                                                                                                                                                          



allows relation back in the event of a mistake; (2) that the service period Rule 15(c)                                                                                                                                                                                                                                                                                                         



refers to in which a potential defendant must receive notice of the litigation was extended                                                                                                                                                                                                                                                                                    



beyond 120 days by the district court's order allowing service by publication; (3) that the                                                                                                                                                                                                                                                                                                                 



 Servicemembers Civil Relief Act tolled the statute of limitations on her claim against                                                                                                                                                                                                                                                                                               



 Stroud; and (4) that Stroud shares an identity of interest with State Farm, Kramer, and                                                                                                                                                                                                                                                                     



Kurdilla which means that any notice of the litigation to those parties may be imputed                                                                                                                                                                                                                                                      



to him.   



III.                            STANDARDS OF REVIEW                                                                           



                                                                "We exercise our 'independent judgment when interpreting the Alaska                                                                                                                                                                                                                                                    



                                                                                                                                     2  

Rules of Civil Procedure.' "                                                                                                               



                                                                                                                                                                                                                                                                                                                                                              

                                                               As for the applicablestandard ofreviewfor decisions whether amendments  



                                                                                                                                                                                                                                                                                                                                                    

relate back under Alaska Civil Rule 15(c), Stroud notes that we review "a trial court's  



                                2                               Coleman v.  McCullough,  290 P.3d 413, 414 (Alaska 2012) (quoting  Joseph  



v.  State,  26  P.3d  459,  463  (Alaska  2001)).  



                                                                                                                                                                                                       -6-                                                                                                                                                                                         7116  


----------------------- Page 7-----------------------

                                                                                                                                                3  

denial of a motion to amend a complaint under an abuse of discretion standard."                                                                    This  



describes the standard of review for Rule 15(a), which gives trial courts discretion, while                                                       



                                     4  

Rule 15(c) does not.                    



                                                                                                                                                    

                        In Phillips v. Gieringer the trial court permitted an amendment under Rule  



                                                                                        5  

                                                                                                                                                        

 15(a) but denied relation back under Rule 15(c).                                           We did not articulate a standard of  



                                                                                                                                 6  

                                                                                                                                                    

review for applications of Rule 15(c), but we reviewed the issue de novo.                                                           We now hold  



                                                                                                                

that we review de novo whether an amendment satisfies Rule 15(c)'s requirements for  



                         7  

                

relation back. 



                                                                                                    8  

                                                                                                       

                                                                                           

                        We review factual findings for clear error. 



            3           Siemion   v.   Rumfelt,   825   P.2d   896,   898   n.2   (Alaska   1992)   (first   citing  



Shooshanian  v.   Wagner,   672  P.2d  455,  458   (Alaska   1983);   and  then   citing  Estate   of  

Thompson  v.  Mercedes-Benz,  Inc.,  514  P.2d   1269,   1271  (Alaska   1973)).  



            4           Compare Alaska  Civil Rule  15(a) ("Otherwise a party may  amend the  

                                                                                                                                                      

party's pleading only by leave of court or by written consent of the adverse party . . . ."),  

                                                                                                                                                       

with Alaska Civil Rule 15(c) ("An amendment changing the party against whom a claim  

                                                                                                                                                  

is asserted relates back if . . . .").  Cf. Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 553  

                                                                                                                                                      

(2010) (distinguishing Federal Civil Rule 15(a) and holding that Federal Civil Rule 15(c)  

                                                                                                                                                   

"mandates relation back once the Rule's requirements are satisfied; it does not leave the  

                                                                                                                                                       

decision whether to grant relation back to the district court's equitable discretion").  

                                                                                                                                



            5           108 P.3d 889, 891-92 (Alaska 2005).  

                                                                                



            6           Id. at 893; see id. at 893-96.  

                                                             



            7           See Butler v. Nat'l Cmty. Renaissance of  Cal., 766 F.3d 1191, 1194 (9th  

                                                                                                                                                     

Cir. 2014) ("Likewise, we review the district court's application of the relation-back  

                                                                                                                                    

doctrine under Federal Rule of Civil Procedure 15(c) de novo."); Williams v. Boeing Co.,  

                                                                                                                                                     

517 F.3d  1120, 1132 n.8 (9th Cir.  2008) (distinguishing between standards of review  

                                                                                                                                                

for denial of a motion to  amend and denial of relation back  once leave to amend  is  

                                                                                                                                                         

granted).  



            8           Hallam v. Alaska Airlines, Inc., 91 P.3d 279, 283 (Alaska 2004).  

                                                                                                                                  



                                                                           -7-                                                                     7116
  


----------------------- Page 8-----------------------

IV.	      DISCUSSION  



                                                                                                                              

                    The full text of Alaska Civil Rule 15(c) is important to the discussion that  



                  

follows.  It 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 the period provided by Rule  

                                                                                                           

                    4(j) for service of the summons and complaint, 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.  



                                                                                                                                

In this opinion we must decide whether the rule (1) permits the relation back of an  



                                                                                                                                  

amendment that adds - rather than merely substitutes - a defendant; (2) allows a  



                                                                                                                    

plaintiff with a mistaken belief about the defendant's identity to amend her complaint  



                                                                                                                               

regardless of whether she was on "inquiry notice" that her initial choice of whom to sue  



                                                                                                                              

might be mistaken; (3) allows the period provided "for service of the summons and  



                                                                                                                          

complaint" to be expanded by an order allowing service by publication; and (4) allows  



                                                                                                                   

"notice of the institution of the action" to be imputed from an insurer to a permissive  



                                                                                                                               

driver who is an insured by definition. We also address whether our interpretation of the  



                                                   

rule comports with due process.  



                                                                                                               

          A.	       Alaska Civil Rule 15(c) Permits Relation Back Of An Amendment  

                                      

                    Adding A Defendant.  



                                                                                                                  

                    The second sentence of Civil Rule 15(c) provides that "[a]n amendment  



                                                                                                                          

changing  the  party  against  whom  a  claim  is  asserted  relates  back"  under  stated  



                                                                                                                              

conditions.  (Emphasis added.)  Stroud argues that Sellers cannot take advantage of this  



                                                               -8-	                                                        7116
  


----------------------- Page 9-----------------------

provision because she did not seek to "change" a party when she revised her complaint                                                                                                                                          



to name "Steph[a]n Kurdilla and/or Daniel Stroud" as the defendants; he argues that                                                                                                                                                             



"change" can mean only "substitute," not "add."                                                                                                     Stroud argues that the provision is                                                               



intended only as a "name-correcting device" and cannot be used to add a new party once                                                                                                                                                        



                                                                                                9  

the statute of limitations has run.                                                                  



                                                                                                                                                                                                                                         

                                       The focus of our past decisions regarding whether an amendment relates  



                                                                                                                                                                                                                                                      

back under Rule 15(c) has been notice and mistake, not whether the plaintiff sought to  



                                                                                    10  

                                                                                                                                                                                                                                              

add or substitute a defendant.                                                             But regardless of context, we liberally construe the rules  



                                                                                                                                                                                                                                                      

of pleading "to [e]nsure that no plaintiff is deprived of his day in court solely because of  



                                                                                                                                                        11  

                                                                                                                                                                                                                                                   

the intricacies and technical limitations of pleading."                                                                                                        We now hold that "changing the  



                    9                  Sellers argues that Stroud waived this argument by failing to raise it below.                                                                                                                                           



"We will not consider new arguments not raised in the trial court, unless the issues                                                                                                                                                      

establish plain error, or the issues (1) do not depend on new facts, (2) are closely related                                                                                                                                            

to other arguments at trial, and (3) could have been gleaned from the pleadings."                                                                                                                                                           State  

Farm Auto. Ins. Co. v. Raymer                                                              , 977 P.2d 706, 711 (Alaska 1999).  Since this question                                                                                 

requires only interpretation of the court rules, since the parties have fully briefed the                                                                                                                                                         

issue, and since Rule 15(c) was consistently litigated below, we will resolve it.                                                                                                                                              



                    10                 See  McCracken  v.  Davis,  560  P.2d  771,  777  (Alaska  1977)  (denying  

                                                                                                                                                                                                            

relation back because defendant was not on notice and reserving whether Rule 15(c)  

                                                                                                                                                                                                                                            

permits adding defendants); see also Siemion v. Rumfelt, 825 P.2d 896, 901 (Alaska  

                                                                                                                                                                                                                                     

 1992) (holding plaintiff did not make a mistake); McCutcheon v. State, 746 P.2d 461,  

                                                                                                                                                                                                                                               

469 (Alaska 1987) (holding complaint was barred by statute of limitations); Atkins v.  

                                                                                                                                                                                                                                                       

DeHavilland Aircraft Co. of Canada, Ltd., 699 P.2d 352, 354 (Alaska 1985) (holding  

                                                                                                                                                                                                                                   

plaintiff made a tactical decision, not a mistake),  distinguished on other grounds by  

                                                                                                                                                                                                                                                    

Farmer v. State, 788 P.2d 43 (Alaska 1990); Adkins v. Nabors Alaska Drilling, Inc. , 609  

                                                                                                                                                                                                                                                 

P.2d 15, 21 (Alaska 1980) (holding defendant was aware of accident but not of lawsuit),  

                                                                                                                                                                                                                                   

distinguished on other grounds by Farmer, 788 P.2d at 48-49.  

                                                                                                                                                                   



                    11                 Farmer, 788 P.2d at 47.  

                                                                                                    



                                                                                                                          -9-                                                                                                                7116
  


----------------------- Page 10-----------------------

party against whom a claim is asserted" for purposes of relation back under Rule 15(c)                                                                                                                                         



includes both "adding" and "substituting" defendants.                                                                



                                     An important purpose of Rule 15(c) is to ensure that a new party has fair   



notice of a cause of action within the time provided by the statute of limitations, "such                                                                                                                                    



                                                                                                                           12  

that the party's rights will not be prejudiced."                                                                                                                                                                                        

                                                                                                                                  The rule balances the party's interest in  



                                                                              

the protection of the statute of limitations against the idea that a party who was timely  



                                                                                                                                                                                                                

notified of litigation "is entitled to no more protection from [the] statutes of limitations  



                                                                                                   13  

                                                                                                                                                                                                                                 

than" a party who was timely served.                                                                     The additional requirement that the plaintiff have  



                                                                                                                                                                                                                      

made a genuine mistake about the proper party's identity prevents use of the relation- 



                                                                                                                                                                                                                               14  

                                                                                                                                                                                                                                     

back doctrine for tactical advantage or to circumvent the rules governing joinder. 



                                                                                                                                                                                                                                     

                                     Requiring a plaintiff to "substitute" rather than "add" a defendant gives the  



                                                                                                      15  

                                                                                                                                                                                                       

new party no additional protections;                                                                        it conceivably only benefits the timely-served  



                                                                                                                                                                                                                                 

defendant, who under Stroud's interpretation must be dismissed in order for a new  



                                                                                                                                                                                            

defendant to be named.  But Rule 15(c) is not intended to benefit an already-identified  



                                                                                                                                       

defendant who was timely served.  And limiting the rule to substitution could - as in  



                   12               Id.  



                   13               Id.  (quoting 3 J                         AMES  WM. M                            OORE ET AL                       ., M       OORE'S  FEDERAL  PRACTICE  



  15:15[2], at 15-144 to 15-145 (2d ed. 1985)); Alaska R. Civ. P. 15(c) (requiring that                                                                                                                                           

the party "receive[] such notice of the institution of the action that the party will not be                                                                                                                                           

prejudiced in maintaining a defense on the merits").                                                                   



                   14                See Atkins, 699 P.2d at 354; McCracken, 560 P.2d at 777.  

                                                                                                                                                                                                     



                   15                See Goodman v. Praxair, Inc., 494 F.3d 458, 469 (4th Cir. 2007) (noting  

                                                                                                                                                                                                                         

that the Federal Civil Rule 15(c) protections come from its requirements of notice and  

                                                                           

mistake, "not from reading the term 'changes' narrowly"). Federal Civil Rule 15(c) and  

                                                                                                                                                                                                                                   

Alaska  Civil  Rule  15(c)  are  very  similar  and  "we  may  look  to  federal  case  law  

                                                                                                                                                                                                                                  

interpreting this rule for guidance in our own application."  Farmer, 788 P.2d at 47.  

                                                                                                                                                                                                                              



                                                                                                                 -10-                                                                                                           7116
  


----------------------- Page 11-----------------------

this case - harm the plaintiff who made an honest mistake.                                                                            Professors Wright and                     



Miller write that "there is no justification for a restrictive interpretation of the word                                                                                    



 'changing' that would require a plaintiff to choose among defendants.                                                                                   Too narrow                  a  



reading of the rule might result in the release of a party who ultimately might have                                                                           



                                                         16  

proven to be liable . . . ."                                                                                                                                           

                                                               Here, Stroud's assertion that he was the driver directly  



                                                                                                                                                                    

contradicted Sellers's evidence that it was Kurdilla.  Sellers could not safely substitute  



                                                                                                                                                                   

one name for the other in the face of the conflicting evidence. Pending further discovery,  



                                                                                                                                                                  

her only immediate option was to name both men, as she did in her amended complaint,  



                                                                                                                                     17  

                                                                                                                                          

alleging that either Kurdilla or Stroud was liable as the driver. 



                             Considering the policies underlying Rule 15(c), we conclude that adding  



                                                                                                                                                                      

a defendant is "changing the party against whom a claim is asserted" and that Sellers's  



                                                                                                                  

claim against Stroud satisfied this aspect of the rule.  



                                                                                                                                                                     

              B.	           A  Plaintiff  On  "Inquiry  Notice"  May  Still  Make  A  True  Mistake  

                                                                                                             

                            About The Identity Of The Proper Party.  



                                                                                                                                                                

                            The district court dismissed Sellers's claim against Stroud as time-barred  



                                                                                                                                                                     

after finding that the letters in which State Farm identified Stroud as "Our Insured"  



                                                                                                                                                                         

"would have put [Sellers] on notice of a duty to investigate as to a possible second  



                                                                                                                                                                      

driver."   The superior court did not address the issue of mistake, resolving Sellers's  



                                                                                                                                                                        

appeal on notice grounds instead; but Stroud argues in his response to Sellers's petition  



              16             6A C       HARLES   ALAN   WRIGHT   & A                                RTHUR R. M                 ILLER, F          EDERAL   PRACTICE  



AND                                   

          PROCEDURE  1498.2 (3d ed. 2010).                               



              17             Cf. Meredith v. United Air Lines                                   , 41 F.R.D. 34, 39 (S.D. Cal. 1966) (noting                              



                                                                                                                                                                            

that where "Plaintiff's counsel could not safely substitute" defendants because either  

                                                                                                                                                                              

party might be liable, "[i]t would be unfair indeed to deny Plaintiff the benefits of Rule  

 15(c)").  



                                                                                        -11-	                                                                                7116
  


----------------------- Page 12-----------------------

for review that Sellers made a conscious choice to sue only Kurdilla and that the district                                                                                



court's finding of inquiry notice supports this conclusion.                                                                  We disagree.   



                            We have interpreted Rule 15(c)(2) to require that "the party seeking to                                                                                 



amend must have made a true mistake concerning the identity or name of the proper                                                                                         



               18  

party."                                                                                                                                                                           

                    Under this interpretation, a complaint's identification of the right actor by the  



                                                                          19 

                

wrong name constitutes a mistake,                                             but a plaintiff's "tactical decision, for instance, to  



                                                                                    20  

                                                                                                                                                                   

omit  a  possible  defendant,"  does  not.                                                  We  have  not  addressed  how  a  plaintiff's  



                                                                                                                                                  

confusion about the roles of two potential defendants fits within the rule.  



                                                                                                                                                                             

                            We have held that there was no "true mistake" for purposes of Rule 15(c)  



                                                                                                                                                                                  

when a plaintiff knew of someone's identity and role in a possible cause of action but  



                                                                                                                                                                           

deliberately chose to omit that person fromthe complaint. In Siemion v. Rumfelt, a minor  



                                                                                                               21  

                                                                                                                                                                                  

driving his father's car ran into the plaintiffs' vehicle.                                                          The plaintiffs sued the father but  



                                                                                                                            22  

                                                                                                                                                                          

in their complaint correctly identified the son as the driver.                                                                   The superior court denied  



                                                                                                                                                    23  

                                                                                                                                                                     

the plaintiffs' later motion to add claims against the son and mother.                                                                                     We affirmed,  



                                                                                                                                                                                    

noting that "[i]t appears that the Siemions neglected to add [the son and mother] as  



              18            Atkins ,  699  P.2d  at  354;  see  also  Siemion  v.  Rumfelt,   825  P.2d   896,  901  



(Alaska  1992)  (noting  that  plaintiffs  must  "demonstrate  that  they  were  mistaken  as  to  the  

identity  of  the  proper  parties"  to  qualify  for  Rule   15(c)).  



              19            Phillips v. Gieringer, 108 P.3d 889, 891 (Alaska 2005).  

                                                                                                                                      



              20            Atkins , 699 P.2d at 354.  

                                                                      



              21             825 P.2d at 897.  

                                                      



              22            Id. at 897, 901.  

                                                    



              23            Id. at 897.  

                                         



                                                                                        -12-                                                                                 7116
  


----------------------- Page 13-----------------------

defendants although knowing their respective identities" and that the plaintiffs "offered                                                              



                                                                                                                                                     24  

no evidence that they made a mistake regarding the [new parties'] identities."                                                                             



                                                                                                                                                                  

                          In  contrast  to  the  plaintiffs'  deliberate  choices  about  whom  to  sue  in  



                                                                                                                                                                

Siemion,  the  U.S.  Supreme  Court  has  noted  that  a  plaintiff  "might  know  that  the  



                                                                                                                                                            

prospective defendant exists but nonetheless harbor a misunderstanding about his status  



                                                                                                                                                                

or role in the events" and "mistakenly choose to sue a different defendant based on that  



                               25  

misimpression."                                                                                                                                          

                                    The Supreme Court held that such a "deliberate but mistaken choice"  



                                                                                                                                                         

would not necessarily disqualify a plaintiff from satisfying Federal Civil Rule 15(c)'s  



                                                                                                          26  

                                                                                                                                                                    

requirement that the plaintiff have made a "mistake."                                                           The First Circuit reached a  



                                                                                                                                                 

similar conclusion when it held that Federal Civil Rule 15(c) "does not distinguish  



                                                                                                                                                        

among  types  of  mistake  concerning  identity"  and  overturned  a  district  court's  



                                                                                                                                                                  

determination  that  there  was  no  mistake  when  a  plaintiff  "through  the  exercise  of  



                                                                                                                                                           27  

                                                                                                                                     

reasonable diligence[] could have known[] the identity of the proper defendant." 



                                                                                                                                                                     

                          The district court in this case found only that Sellers was "on notice of a  



                                                                                              28  

                                                                                                                                                                 

duty to investigate as to a possible second driver,"                                              not that Sellers knew Stroud was the  



             24          Id.  at 901;         see also Atkins             , 699 P.2d at 354 (denying relation back because                              



"Atkins offered no evidencethat hemadeamistakeconcerningDeHavilland's identity").                                                                   



             25          Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 549 (2010).  

                                                                                                                                



             26          Id.  



             27          Leonard v. Parry, 219 F.3d 25, 28-29 (1st Cir. 2000).  

                                                                                                                     



             28           Since the district court relied only on the State Farm letters in its finding  

                                                                                                                                                         

that Sellers was on inquiry notice, it did not resolve any factual questions regarding the  

                                                                                                                                                                 

phone call Kurdilla said he made on May 16, 2012 identifying Stroud as the driver.  

                                                                                                                                                          

Stroud now argues that this phone call and his two affidavits are also evidence that  

                                                                                                                                                               

Sellers was on notice that he was the driver.  

                                                                         

                                                                                                                                             (continued...)  



                                                                               -13-                                                                          7116
  


----------------------- Page 14-----------------------

driver   and   named   Kurdilla   regardless.    There   was   no   finding   that   Sellers   was   not  



                                                                               29  

"mistaken as to the identity of the proper parties,"                                                                                   

                                                                                  as she claimed to be.  A plaintiff on  



                                                                                                                                     

inquiry notice can make a mistake; indeed, it is the nature of mistake that a party has  



                                                           30  

                                                                                                                                   

missed a chance to discover the truth.                         "The reasonableness of the mistake is not itself  



               31  

                                                                                                                                        

at issue."          Alaska Civil Rule 15(c) protects against a plaintiff who has not made a  



                                                                                                                                      

mistake, who knows the defendant's identity and understands the defendant's role in the  



           28(...continued)  



                                                                                                                                  

                     But the mistake inquiry under Rule 15(c) asks whether the plaintiff made  

                                                                                                        

a mistake when she filed the original complaint.   See, e.g., id.  at 29 ("[K]nowledge  

                                                                                                                        

acquired by a plaintiff after filing his original complaint is without weight in determining  

                                                                                                                       

his state of mind at the time he filed the initial complaint and, thus, in determining  

                                                                                                                                       

whether a mistake concerning identity occurred."). Sellers filed her initial complaint on  

                                                                                                                            

January  4,  2012;  the  phone  call  Kurdilla  alleged  to  have  made  later  and  Stroud's  

                                                                               

affidavits filed later are irrelevant for Rule 15(c) purposes.  



           29        Siemion, 825 P.2d at 901.  

                                                        



           30        See  Leonard,  219  F.3d  at  29  ("Virtually  by  definition,  every  mistake  

                                                                                                                              

involves an element of negligence, carelessness, or fault . . . .").  

                                                                                                 



           31        Krupski, 560 U.S. at 549; see also id. at 550-51 (noting that Federal Civil  

                                                                                                                                   

Rule 15(c) arose out of recurring problems with timely Social Security suits that named  

                                                                                                                                

the wrong defendant, even though "litigants knew or reasonably should have known" the  

                                                                                                                                      

proper party's identity from paperwork and the filing statute's requirements); Leonard,  

                                                                                                                            

219 P.2d at 29 (noting that the language of Rule 15(c) "does not distinguish among types  

                                                                                                                                  

of mistakes concerning identity").  

                                       



                                                                  -14-                                                            7116
  


----------------------- Page 15-----------------------

                                                                                32  

 events at issue.                                                                         But if the plaintiff has made a true mistake about the defendant's                                                                                                                                                                                                                              



identity, Rule 15(c)'s mistake requirement is satisfied.                                                                                                                                                                              



                                                                    In this case, Sellers sued Kurdilla because she believed he was the driver.                                                                                                                                                                                                                                                                                                           



 She named him as the driver in the crash report and in her complaint. The district court's                                                                                                                                                                                                                                                                                                                         



 finding that Sellers was on notice to inquire into whether Stroud was the driver instead                                                                                                                                                                                                                                                                                                                          



does not change the fact that she premised her complaint on a mistake about the driver's                                                                                                                                                                                                                                                                                                                        



identity.   Because Sellers made a "mistake concerning the identity of the proper party,"                                                                                                                                                                                                                                                                                                                           



we must resolve whether Rule 15(c)'s other requirements are satisfied.                                                                                                                                                                                                                                                    



                                  C.	                                State Farm Knew Of The Litigation Within The Rule 15(c) Notice                                                                                                                                                                                                                                                                                

                                                                    Period.  



                                                                    Rule15(c) requires                                                                               thatthenoticeandmistakeelementsbesatisfied "within                                                                                                                                                                                           



the period provided by Rule 4(j) for service of the summons and complaint."                                                                                                                                                                                                                                                                                                                         Rule 4(j),   



in turn, provides a 120-day time limit for service; if service has not been completed                                                                                                                                                                                                                                                                                                            



within that time, the clerk is required to "send notice to the plaintiff to show good cause                                                                                                                                                                                                                                                                                                                                



in writing why service . . . is not complete."                                                                                                                                                                                "If the court finds good cause why service                                                                                                                                           



has not been made, the court shall establish a new deadline by which plaintiff must file                                                                                                                                                                                                                                                                                                                                              

proof of service or proof that plaintiff has made diligent efforts to serve."                                                                                                                                                                                                                                                                                                         33  



                                                                                                                                                                                                                                                                                                                                                                                                              

                                                                    The district court in this case did not decide whether Stroud had imputed  



                                                                                                                                                                                                                                                                                                                                                                                                                                       

notice of Sellers's lawsuit within the time allowed by Rule 4(j).  The superior court did  



                                  32                                See Siemion                                                    , 825 P.2d at 901;                                                                           Farmer v. State                                                                     , 788 P.2d 43, 49 (Alaska                                                                  



  1990) (distinguishing a case in which a plaintiff who "                                                                                                                                                                                                                knew  the defendant's identity, but                                                                                                                           

merely neglected to add that defendant to his original complaint," made no mistake                                                                                                                                                                                                                                                                                                                            

 (emphasis in original) (citing                                                                                                                   McCutcheon v. State                                                                                      , 746 P.2d 461 (Alaska 1987)));                                                                                                                             Atkins  

v.  DeHavilland Aircraft Co. of Canada, Ltd.                                                                                                                                                                                    , 699 P.2d 352, 354 (Alaska 1985) (finding                                                                                                                                     

no   mistake   where   a   plaintiff   made   "[a]   tactical   decision   .   .   .   to  omit   a   possible  

defendant").  



                                  33                                Alaska Civil Rule 4(j).  

                                                                                                                                                                 



                                                                                                                                                                                                                  -15-	                                                                                                                                                                                                         7116
  


----------------------- Page 16-----------------------

address the issue, holding that the period for service of the summons and complaint was                                                                                                                                              



 120 days because "[t]he trial court in this case did not find good cause" to extend the                                                                                                                                               



Rule 4(j) period; the court further held that since Kurdilla was served more than 120 days                                                                                                                                          



after Sellers filed her complaint, the necessary prerequisites to relation back under Rule                                                                                                                                         



 15(c) did not occur within the Rule 4(j) service                                                                                  period and notice could not be imputed                                                



to Stroud.                   Sellers now argues that the superior court erred in enforcing a 120-day limit                                                                                                                         

                                                                                                                                                                                            34      Stroud counters  

because the Rule 4(j) period may be extended and was in this case.                                                                                                                                                      



                                                                       35  

that in  West v. Buchanan                                                    we established a bright-line 120-day rule for notice under  

                                                                                                                                                                                                                                



Rule 15(c).  

               



                                     As explained below, we conclude that Stroud had imputed notice of the  

                                                                                                                                                                                                                                       



litigation well within 120 days of the filing of the complaint; nonetheless, we first  

                                                                                                                                                                                                                                    



explain why we disagree with the superior court's calculation of the applicable period  

                                                                                                                                                                                     



for service.  Contrary to Stroud's argument on appeal, West no longer defines the notice  

                                                                                                                                                                                                                               



period for purposes of Rule 15(c).   The rule was amended in 2005, after  West was  

                                                                                                                                                                                                                                    



decided, to provide for notice "within the period provided by Rule 4(j) for service of the  

                                                                                                                                                                                                                                        

summons and complaint."36  As noted above, Rule 4(j) establishes a 120-day deadline  

                                                                                                                                



                   34                Sellers also argues that the Servicemembers Civil Relief Act tolled the                                                                                                        



statute of limitations while Kurdilla was deployed, an argument she raised for the first   

time on appeal to the superior court.                                                                   The superior court held that Sellers waived this                                  

argument when she failed to raise the issue in district court.                                                                                                         We find it unnecessary to                                           

address it.   



                   35                981 P.2d 1065 (Alaska 1999).  

                                                                                                       



                   36                Alaska Supreme Court Order No. 1571 (Apr. 21, 2005).  When  West was  

                                                                                                                                                                                                                                     

decided in 1999, Rule 15(c) provided for notice "within the period provided by law for  

                                                                                                                                                                                                                                        

commencing the action." West, 981 P.2d at 1069. We note, however, that we ultimately  

                                                                                                                                                                                                                    

held in  West that notice must take place within "the reasonable time for service of  

                                                                                                                                                                                                                                         

process"; we did not require that extensions beyond the standard 120-day service period  

                                                                                                                                                                                                                               

                                                                                                                                                                                                           (continued...)  



                                                                                                                   -16-                                                                                                           7116
  


----------------------- Page 17-----------------------

for service but allows the court to "establish a new deadline" if it "finds good cause why                                                                                                                



service has not been made." The 2005 amendment to Rule 15(c) uses the same language                                                                                                            



as its federal counterpart, which allows extensions of the 120-day notice period if the                                                                                                                      

                                       37      Thus, Rule 15(c) contemplates notice within 120 days or a longer  

court so orders.                                                                                                                                                                                   



period of time if ordered by the court.  

                                                                               



                                 It is true, as the superior court observed, that the district court in this case  

                                                                                                                                                                                                          



did not make an explicit good cause finding in support of a new deadline under Rule 4(j).  

                                                                                                                                                                                                           



The  district  court  did,  however,  authorize  an  extension  of  the  service  period.                                                                                                                    By  

                                                                                                                                                                                                            



authorizing service by publication, the district court required Sellers to publish notice  

                                                                                                                                                                                                      

"four times during four consecutive calendar weeks, once in each week."38   On April 16,  

                                                                                                                                                                                                             



the date of the court's order, less than four weeks remained in the original service period;  

                                                                                                                                                                                                    



the effect of the court's order was to extend that period until service by publication was  

                                                                                                                                                                                                           



                36(...continued)  



                                  

be excluded.  Id.  



                37               Fed. R. Civ. P. 15(c);                               see  Fed. R. Civ. P. 15                                advisory committee's note to                                       



 1991 amendment ("In allowing a name-correcting amendment within the time allowed  

                                                                                                                                                                                                 

by Rule 4(m), this rule allows not only the 120 days specified in that rule,                                                                                                          but also any          

additional time resulting from any extension ordered by the court pursuant to that rule                                                                                                                    

. . . ." (emphasis added));                                    see also Heiser v. Ass'n of Apartment Owners of Polo Beach                                                                            

Club, 848 F. Supp. 1482, 1488 (D. Haw. 1993) (holding that amendment adding new  

                                                                                                                                                                                                          

parties related back because a court-granted extension constituted "good cause for the  

                                                                                                                                                                                                             

failure to serve within 120 days" and the parties were thus served "prior to the end of the  

                                                                                                                                                                                                              

Rule 4(j) period for serving the original complaint").  

                                                                                                   



                38               Alaska R. Civ. P. 4(e)(2) (2012). Alaska Civil Rule 4(e)(2) was altered and  

                                                                                                                                                                                                            

renumbered as 4(e)(3) in 2014, although its substantive requirements for service by  

                                                                                                                                                                                                              

publication in a newspaper remain the same.  Alaska Supreme Court Order No. 1834  

                                                                                                                                                                                                        

(July 9, 2014).  

                    



                                                                                                     -17-                                                                                               7116
  


----------------------- Page 18-----------------------

                  39  

complete.               We necessarily infer that the district court had good cause to issue its                                                         



           40  

order.          



                        This reading is consistent with  West, in which we concluded that Rule  

                                                                                                                                                     



 15(c)'s goal was "to liberalize the rules of pleading" to allow amendments otherwise  

                                                                                                                                            



barred by the statute of limitations as long as defendants were protected against the  

                                                                                                                                                        

prosecution of stale claims.41                          In  West we concluded that it would be "little more than  

                                                                                                                                                      



senseless formalism" to say that the original defendant "received timely and adequate  

                                                                                                                                              



notice" but the new defendant did not when both received notice within the period  

                                                                                                                                                  

allowed  for  service  of  process.42                             It  would  be  equally  formalistic  to  bar  Sellers's  

                                                                                                                                              



amendment on timeliness grounds because the district court did not explicitly reference  

                                                                                                                                             



Rule 4(j) in its order granting Sellers permission under Rule 4(e) to publish after the  

                                                                                                                                              



original 120-day service deadline had passed. The effect of the district court's order was  

                                                                                                                                                       



to extend the Rule 15(c) notice period through the final publication of service on May 22,  

                                                                                                                                                         



2012.  The evidence is undisputed that Kurdilla was served with Sellers's complaint,  

                                                                                                                                           



naming him as the driver, on May 11 and that he advised Kramer, his State Farm- 

                                                                                                                                                  



            39           Sellers filed her complaint on January 4, 2012, and the usual 120-day                                                 



service period would have expired on May 3.                                          Sellers promptly published the required                   

notice on May 1, 8, 15, and 22.                             



            40          The court's authorization of "other service" under Rule 4(e) is premised on  

                                                                                                                                                          

proof "that after diligent inquiry a party cannot be served with process" by more usual  

                                                                                                                                                    

means.  



            41           West, 981 P.2d at 1068; see also Phillips v. Gieringer, 108 P.3d 889, 893  

                                                                                                                                                       

(Alaska 2005) (noting that whether the original pleading gave fair notice to the actual  

                                                                                                                                                   

defendant within the statutory period is the linchpin of the relation back doctrine);  

                                                                                                                                           

Farmer v. State, 788 P.2d 43, 50 (Alaska 1990) ("Civil Rule 15(c) should not stand as  

                                                                                                                                                          

a technical bar.  To construe it so is to put form over substance . . . .").  

                                                                                                                          



            42           981 P.2d at 1071.  

                                               



                                                                           -18-                                                                     7116
  


----------------------- Page 19-----------------------

 appointed attorney, on May 16 that the complaint was mistaken because Stroud had been                                                                                                                                                                                                                                                                                                                                      



the driver.                                           These events occurred within the time allowed by Rule 4(j) for service.                                                                                                                                                                                                                                                                                                       



                                                                    In   any  event,   we   conclude   that   service   of   process   on   Kurdilla   is   not  



 determinative in this case because State Farm, which insured both him and Stroud, had                                                                                                                                                                                                                                                                                                                                          



notice of the suit and of Sellers's alleged mistake much earlier.                                                                                                                                                                                                                                                                 Kramer's affidavit of                                                                                



April 23, 2013, filed in support of a motion for costs related to a motion to compel,                                                                                                                                                                                                                                                                                                                    



 asserted that he had "been lead attorney in [this case] since its inception [on] January 4,                                                                                                                                                                                                                                                                                                                                             



 2012."   An invoice Kramer's law firm sent State Farm, filed after trial in support of a                                                                                                                                                                                                                                                                                                                                                   



motion for attorney's fees, reflected that on January 26, 2012, one of the firm's attorneys                                                                                                                                                                                                                                                                                                          



received a phone call from a State Farm representative, researched court records, and                                                                                                                                                                                                                                                                                                                                          



reviewed   Sellers's   complaint;  the   next   day   Kramer   also   reviewed   the   complaint,  



researched "statute of limitations issues" regarding "[redacted]," and spoke to the State                                                                                                                                                                                                                                                                                                                                



 Farm representative assigned to Sellers's insurance claim.                                                                                                                                                                                                                                           The records show that over                                                                                            



the next few weeks Kramer received State Farm's claim file and prepared to defend the                                                                                                                                                                                                                                                                                                                                              



 claim.    This evidence is more than sufficient for us to conclude that State Farm had                                                                                                                                                                                                                                                                                                                                        



notice of Sellers's suit and her alleged mistake within the time allowed for service on                                                                                                                                                                                                                                                                                                                                              



 Kurdilla.  



                                  D.	                              Notice   Of   The   Litigation   Is   Fairly   Imputed   From   State   Farm   To  

                                                                    Stroud Because Of Their Identity Of Interest.                                                                                                                                                                                                          



                                                                   We next address whether State Farm's timely notice of the litigation may                                                                                                                                                                                                                                                                                 



be fairly imputed to Stroud.                                                                                                                 For deciding whether amendments relate back under Rule                                                                                                                                                                                                                        



  15(c)   we have adopted                                                                                                  the "identity                                                        of interest" doctrine, which                                                                                                                         imputes notice of                                                                

                                                                                                                                                                                                                                                                                                                                                                            43             We held in  

 litigation to a new defendant through timely notice to an original party.                                                                                                                                                                                                                                                                                                                                    



Farmer v. State that "[w]here a new party (1) has constructive notice, imputed through  

                                                                                                                                                                                                                                                                                                                                                                                                           



                                  43                               Phillips,   108  P.3d  at  894-95.  



                                                                                                                                                                                                                -19-                                                                                                                                                                                                       7116  


----------------------- Page 20-----------------------

the same attorney retained by existing parties to the action, (2) through no fault of the                                                                                                            



plaintiff the defendant's true identity was unknown at the time of pleading, and (3) the                                                                                                             



newparty defendant is not prejudiced by theamended complaint, Civil Rule 15(c) should                                                                                                        

not stand as a technical bar."                                      44  



                                In Phillips v. Gieringer the plaintiff was involved in a car accident with a  

                                                                                                                                                                                                         

                                                                                                                                             45    The plaintiff mistakenly  

driver who was insured under his father's State Farm policy.                                                                                                                      

                                                                                                                             



sued the father "but described the 'defendant' in her complaint as the driver of the motor  

                                                                                                                                                                                              

vehicle and directed all her claims against the driver."46                                                                                We noted that "a 'business  

                                                                                                                                                                                     



operation' or other private relationship may also give rise to an identity of interest" and  

                                                                                                                                                                                                   

reaffirmed that thedoctrine'sprimary objectivewas to avoid prejudice to thenewparty.47  

                                                                                                                                                                                                              



We then determined that State Farm, because of service on the father, had notice of the  

                                                                                                                                                                                                     

litigation and shared an identity of interest with the driver.48                                                                                We imputed notice of the  

                                                                                                                                                                                                     



suit to the driver through State Farm because "[i]n routine cases, there will be an identity  

                                                                                                                                                                                          



of interest between theinsurer and the insured because insurance companies are typically  

                                                                                                                                                                                        

required by contract to represent the interests of the insured."49   But we allowed that the  

                                                                                                                                                                                                     



                44              788 P.2d at 49-50.          



                45              108 P.3d at 891.  

                                                                        



                46             Id.  



                47             Id.  at 894.   



                48  

                                             

                               Id. at 895.  



                49             Id.  



                                                                                                 -20-                                                                                           7116
  


----------------------- Page 21-----------------------

presumption of notice "may be rebutted if the insured can show that its interests conflict                                                              

with the insurance company."                             50  



                          Sellers argues that the issue of imputed notice in her case is governed by  

                                                                                                                                              



Phillips  because  in  both  cases  the  original  defendant  and  the  actual  driver  were  

                                                                                                                                                           

represented by the same insurance company.51                                               Stroud counters that Phillips addresses  

                                                                                                                                                   



co-insureds, not permissive drivers who are insured by definition, and besides that his  

                                                                                                                                         



interests were adverse to those of both Kurdilla and State Farm. Stroud also relies on the  

                                                                                                                                                                



superior court's finding that Sellers abandoned on appeal the issue of whether Stroud and  

                                                                                                                                                               



State Farm shared an identity of interest.  

                                                                                



                          1.	         Sellers did not abandon her claim that Stroud and State Farm  

                                                                                                                                                          

                                      share an identity of interest.  

                                                                                



                          The superior court noted in Sellers's appeal that an identity of interest  

                                                                                                                                                       



presumably  existed  between  Stroud  and  State  Farm,  but  that  "[o]n  appeal,  Sellers  

                                                                                                                                                        



abandoned her argument"and "focused entirely on an identity of interest between Stroud  

                                                                                                                                                          

and Kurdilla."  We review de novo whether a party has waived a claim on appeal.52   We  

                                                                                                                                                               



conclude that Sellers did not waive this issue.  

                                                                             



                          Sellers's brief on appeal in the superior court argued that her case was  

                                                                                                                                                              



"factually analogous" to Phillips.  She explained that Phillips held that notice could be  

                                                                                                                                                                 



imputed to the driver "because both parties were represented by the same counsel and  

                                                                                                



covered by the same insurance carrier."  She then argued that notice could be imputed  

                                                                                                                                                      



in her case because "both Kurdilla and Stroud were covered by State Farm" and were  

                                                                                                                                                             



             50	         Id.  



             51           See id.      at 891 ("Although Carl [Gieringer] was not a minor, he was insured                                               



under the same State Farm auto insurance policy as his father . . . .").                                                     



             52           State v. Jacob, 214 P.3d 353, 361 (Alaska 2009) (citing Lauth v. State, 12  

                                                                                                                                                                 

P.3d 181, 184 (Alaska 2000)).  

                                             



                                                                               -21-	                                                                        7116
  


----------------------- Page 22-----------------------

represented by the same attorney. We acknowledge that Sellers could have clarified her                                                                                                                                                                                                                                                                                                                    



argument by stating that notice was imputed                                                                                                                                                                              through State Farm                                                                               , but we believe she                                                          



adequately briefed her claim by identifying the relevant holding in                                                                                                                                                                                                                                                                      Phillips   and the   



corresponding circumstances in her own case.                                                                                                                                                                               Our conclusion is bolstered by Stroud's                                                                                                               



response to Sellers's brief, in which he argued that "State Farm never had an identity of                                                                                                                                                                                                                                                                                                                      



interest with Stroud such that notice of the suit against Kurdilla to State Farm should be                                                                                                                                                                                                                                                                                                                    



imputed to Stroud."                                                                             



                                                               2.                              Stroud and State Farm share an identity of interest.                                                                                                                                                                        



                                                                Sellers's circumstances are very close to those in                                                                                                                                                                                     Phillips.   Her complaint   



described the defendant as the driver but named the car owner; both the owner and the                                                                                                                                                                                                                                                                                                                     



driver were covered by the same insurance policy; and the trial court granted leave to                                                                                                                                                                                                                                                                                                                         



amend the complaint and add the driver but refused to allow the amendment to relate                                                                                                                                                                                                                                                                                                           



back.  The only salient difference between the cases is that Stroud was a permissive                                                                                                                                                                                                                                                                           



driver under Kurdilla's insurance policy rather than a named insured.                                                                                                                                                                                                                                                                    Stroud contends   



that "the only relationship between State Farm and Stroud is a contractual obligation to                                                                                                                                                                                                                                                                                                                        



Kurdilla   to   defend   any   permissive   driver"   and   that   this   difference   from   Phillips   is  



determinative.    



                                                                Stroud                                   understates   State                                                                            Farm's                                     obligation                                               to                him.                                   Under                                 AS  



28.20.440(b)(2), motor vehicle liability insurance must "insure the person named and                                                                                                                                                                                                                                                                                                                   



every other person using the vehicle with the express or implied permission of the named                                                                                                                                                                                                                                                                                                  



insured." Unnamed                                                                             but permissivedrivers                                                                                   "qualify asadditionalinsureds                                                                                                                  wheninvolved   



in an accident" and are entitled to "coverage . . . against the claims of [an] injured party                                                                                                                                                                                                                                                                                                    

                                                                                                                                                                                                                                           53           Absent unusual circumstances not  

as if the permissive user was the named insured."                                                                                                                                                                                                                                                                                  



                                53                              8  STEVEN  PLITT ET AL.,  COUCH ON  INSURANCE      111:14  (3d  ed.  2015).  



                                                                                                                                                                                                    -22-                                                                                                                                                                                           7116  


----------------------- Page 23-----------------------

evident in this record, State Farm owed Stroud the same duties of defense and indemnity                                                                                                                                                



it owed Kurdilla, its named insured.                                                                            



                                         Stroud argues that imputing notice to a permissive driver is unfair because                                                                                                                          



the insurance company does not have the same "contact information and an ongoing                                                                                                                                                            



business relationship" with "a random driver," making it less likely that the insurer's                                                                                                                                                    



actual notice will reach the insured.                                                                        That consideration does not affect this case, where                                                                                   



 State Farm identified Stroud as "Our Insured" on January 11, 2010 - within days of the                                                                                                                                                                      



accident - and where the attorney State Farm hired spoke to Stroud by phone within the                                                                                                                                                                       



                                                                            54  

Rule 15(c) notice period.                                                         



                                         Stroud next argues that we should not impute notice of the litigation to him  

                                                                                                                                                                                                                                                          

through State Farm because his interests were adverse to the insurer's.55                                                                                                                                                    According to  

                                                                                                                                                                                                                             



 Stroud, StateFarm'sprimary obligationwas to represent"its paying customer, Kurdilla."  

                                                                                                                                                                                                                                                                         



 Stroud  contends  that  State  Farm "had  no  duty  to  defend  Stroud  until  after  Sellers  

                                                                                                                                                                                                                                                



attempted to name him as a defendant" and that he "was not being defended by State  

                                                                                                                                                                                                                                                      



Farm" during the statute of limitations or service periods.  

                                                                                                                                                      



                                         Stroud cites no authority in support of these arguments.  As already noted,  

                                                                                                                                                                                                                                                   



an auto insurer is required by statute to "insure the person named [in the policy] and  

                                                                                                                                                                                                                                                          

every  other  person  using  the  vehicle."56                                                                                           A  "paying  customer"  is  not  entitled  to  

                                                                                                                                                                                                                                                              



preferential treatment:  An insurer owes all its insureds a duty of good faith and fair  

                                                                                                                                                                                                                                                           



                    54                   The   attorney's   billing  records   reflect   "Phone   call   with   driver,   Daniel  



 Str[o]ud, regarding [redacted]" on May 18, 2012, following a phone call with Kurdilla.                                                                                                                                                                                  



                    55                  See Phillips, 108 P.3d at 895 (holding that the presumption of notice "may  

                                                                                                                                                                                                                                                      

be  rebutted  if  the  insured  can  show  that  its  interests  conflict  with  the  insurance  

                                                                                                                                                                                                                                      

company").  



                    56                  AS 28.20.440(b)(2).  

                                                    



                                                                                                                             -23-                                                                                                                      7116
  


----------------------- Page 24-----------------------

                                                                                                           57  

dealing, and it cannot defend one at the expense of another.                                                   Potential conflicts between        



insureds are routinely handled by the assignment of different adjusters and different                                                            

                               58   And the insurer's obligation begins before the insured is named as a  

defense counsel.                                                                                                                                               



defendant in a lawsuit and even if suit is never filed. The insurer is required to promptly  

                                                                                                                                                



investigate insurance claims and offer equitable settlements when liability is reasonably  

                                                                                                                                             

clear.59   These duties, beginning when the insurer first received notice of the claim, were  

                                                                                                                                                        

the same whether Kurdilla or Stroud was the driver.60  

                                                                                                      



                         In short, Stroud has not shown that his interests were adverse to those of  

                                                                                                                                                             



 State Farm, nor has he rebutted the presumption from Phillips that he and his insurer  

                                                                                                                                                    



 share an identity of interest.  State Farm's actual notice of the litigation in January 2012  

                                                                                                                                                        

is therefore imputed to Stroud.61  

                                            



             57          See Williams v. GEICO Cas. Co.                               , 301 P.3d 1220, 1226 (Alaska 2013).                      



             58          See, e.g.,  Fed. Ins. Co. v.  MBL,  Inc., 160  Cal. Rptr. 3d 910, 923-24 (Cal.  



App.  2013)  (rejecting  insured's  claim  that  it  was  entitled  to  independent  counsel  where   

insurer represented multiple defendants, noting that insurer   "retained different law firms  

to  defend  MBL  and  the  other  insured  as  well  as  assigned  different  claims  adjusters"  who  

"had  no  access  to  each  others'  files,  did  not  discuss  the  claims  and  there  is  no  evidence  

that  the  defense  of  either  insured  would  have  been  affected  in  any  way");  United  Servs.  

Auto.  Ass'n  v.  Bult,  183  S.W.3d  181,  187-88  (Ky.  App.  2003)  (noting  that  it  would  "have  

been  the  better  practice  for  [insurer]  to  employ  two  separate  adjusters"  as  representatives  

testified  "was  the  company's  normal  practice"  in  cases  involving  multiple  insureds,  but  

under   the   circumstances   finding   no   actual prejudice   in   the   insurer's   use   of   a   single  

adjuster).  



             59          AS 21.36.125(a)(3), (6).  

                                                                



             60          See AS 28.20.440(b)(2).  

                                        



             61          Since we conclude that State Farm and Stroud share an identity of interest,  

                                                                                                                                                   

we do not resolve Sellers's arguments that an identity of interest exists between Stroud  

                                                                                                                                                     

and Kramer and between Stroud and Kurdilla.  

                                                                      



                                                                             -24-                                                                      7116
  


----------------------- Page 25-----------------------

               E.             Imputing Notice To Stroud Does Not Violate Due Process.                                                                 



                              Finally, Stroud argues that imputing notice to him through State Farm                                                                                    



violates due process under the federal and Alaska constitutions.                                                  



                              It is true that the failure to provide a new party with adequate, timely notice                                                                         



                                                                                                                                                  62  

of litigation "might raise a question of procedural due process."                                                                                                                        

                                                                                                                                                        However, the U.S.  



                                                                                                                                                                                   

Supreme Court has observed in reference to Federal Civil Rule 15(c) that "[t]he Federal  



                                                                                                                                                                                           

Rules  of  Civil  Procedure  are  designed  to  further  the  due  process  of  law  that  the  



                                                                                                                                                                                  

Constitution guarantees. . . . [A]s long as no undue prejudice is shown, 'due process  



                                                                                                                                              63  

                                                                                                                                                    

requirements are met if the requirements of Rule 15 are met.' " 



                              Procedural due process under Alaska's constitution " 'requires notice and  

                                                                                                                                                                                           



opportunity for hearing appropriate to the nature of the case.'  Parties must have notice  

                                                                                                                                                                                     



of the subject of proceedings that concern them 'so that they will have a reasonable  

                                                                                                                                                                         

opportunity to be heard.' "64  

                                                                                                                                                                                  

                                                                Alaska Civil Rule 15(c) adopts the same notice and mistake  



                                                                                                                                                                                               

requirements as Federal Civil Rule 15(c), and both rules define the period for notice as  



                                                                                                                                                                                         

equal to the period for service of the complaint.  As in federal law, we conclude that,  



               62             WRIGHT  & M                    ILLER,  supra  note 16, at  1498.                        



               63  

                                                                                                                                                                                       

                              Nelson  v.  Adams  USA,  Inc., 529  U.S.  460,  465  (2000)  (quoting  Ohio  

Cellular Prods. Corp. v. Adams USA, Inc.                                                        , 175 F.3d 1343, 1349 n.5 (Fed. Cir. 1999),                                         

                                                                                                                                                                                       

rev'd on other grounds by Nelson, 529 U.S. 460).  Professors Wright and Miller argue  

                                                                                                                                                                                   

that the language of Federal Civil Rule 15(c) protects against the procedural due process  

                                                                                                                                                                       

violation Stroud claims by requiring that the new defendant receive such notice that it  

                                                                                                                                                                                        

"will not be prejudiced in defending on the merits" and know that it would have been  

                                                                                                                                                           RIGHT  & M                ILLER,  

named "but for a mistake concerning the proper party's identity." W 

                                                                                        

supra note 62 (quoting Fed. R. Civ. P. 15(c)(1)(C)).  



               64             Price v. Eastham                      , 75 P.3d 1051, 1056 (Alaska 2003) (first quoting                                                             Walker  



v. Walker, 960 P.2d 620, 622 (Alaska 1998); and then quoting Potter v. Potter, 55 P.3d  

                                                                                                                                                                                         

726, 728 (Alaska 2002)).  

                                         



                                                                                             -25-                                                                                       7116
  


----------------------- Page 26-----------------------

unless undue prejudice is shown, due process is satisfied if the requirements of Alaska                                                                                                               

Civil Rule 15(c) are met.                                     65  



                                 The only prejudice Stroud alleges is that more than two and a half years  

                                                                                                                                                                                                          



passed between the accident and Sellers's amendment adding him as a defendant.  But  

                                                                                                                                                                                                              



we have already concluded that having received the same notice as Kurdilla, who was  

                                                                                                                                                                   



timely served, Stroud had fair notice of the litigation such that his rights will not be  

                                                                                                                                                                                                                 



prejudiced.  We therefore conclude that due process is satisfied.  

                                                                                                                                         



V.               CONCLUSION  



                                  Sellers's amended complaint relates back to the date she filed her original  

                                                                                                                                                                                                    



complaint.  Accordingly, we REVERSE the dismissal of Sellers's claim against Stroud  

                                                                                                                                                                                                       



and REMAND to the superior court with instructions to remand to the district court for  

                                                                                                                                                                                                                



                                                  66  

further proceedings.                                     

                   



                 65              See Farmer v. State                                , 788 P.2d 43, 47 (Alaska 1990) (holding that "the                                                                       



touchstone of the relation back doctrine is fairness" and a new party must have "fair                                                                                                                       

notice of the cause of action, within the prescribed statutory period, such that the party's                                                                                                          

rights will not be prejudiced").            



                 66              This holding does not affect the superior court's reversal and remand of the  

                                                                                                                                                                                                                

district court's Rule 56(f) ruling.  

                                                                  



                                                                                                       -26-                                                                                                7116
  

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