Mandamus Proper to Review Fictitious Party Issue
In Ex parte Nationwide Ins. Co., No. 1061708 (Ala. April 18, 2008), the Alabama Supreme Court confirmed that, “an appeal is not an adequate remedy to review the defense, ‘[i]n a narrow class of cases involving fictitious parties and the relation-back doctrine’ that a claim is barred by the statute of limitations.” (quoting Ex Parte Jackson, 780 So. 2d 681, 684 (Ala. 2000)).
The plaintiff was injured in a car accident. Approximately a year after the accident, the plaintiff sued the driver of the other car, and she named as fictitious defendants the parties who owed UIM benefits to the plaintiff. Nationwide was the plaintiff’s insurer, and the plaintiff’s Nationwide policy provided UIM benefits. Nearly seven years after her accident, plaintiff substituted Nationwide for one of the fictitious defendants in her lawsuit. Nationwide filed a motion to dismiss in which it argued that the plaintiff’s claim against Nationwide was barred by the applicable six year statute of limitations. The trial court denied the motion.
After reviewing the plaintiff’s arguments, the Court granted Nationwide’s petition for a writ of mandamus to compel the trial court to dismiss the plaintiff’s claims. The Court found that the plaintiff did not exercise diligence in discerning the identity of the fictitious defendant, so the defendant had a clear right to a writ of mandamus.
After reviewing the plaintiff’s arguments, the Court granted Nationwide’s petition for a writ of mandamus to compel the trial court to dismiss the plaintiff’s claims. The Court found that the plaintiff did not exercise diligence in discerning the identity of the fictitious defendant, so the defendant had a clear right to a writ of mandamus.
