Generally speaking, “[a] new party cannot be brought into a lawsuit by amended complaint when the statute of limitations governing the claim against that party has already expired.” Combs v. Albert Kahn & Associates, Inc., 183 S.W.3d 190, 194 (Ky. App. 2006) (internal footnote omitted). Because Phillips alleges negligence, the applicable statute of limitations is one year pursuant to KRS 413.140(1)(a). In this case, Phillips’ cause of action accrued at the time of the alleged injury, April 9, 2008. She filed her original complaint on April 8, 2009, naming only LFUCG as a defendant. On May 28, 2009, Phillips filed her amended complaint adding a state law negligence claim against Bodkin and Kirby. Unless Phillips’ claims against Bodkin and Kirby relate back under CR 15.03, they are time-barred.
An amended pleading that changes or adds defendants only relates back to the filing of the original pleading when (1) the claim in the amended complaint arose out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the new party received notice of the institution of the action so that he will not be prejudiced in asserting his defense; and (3) the new party knows or should have known that without the mistake concerning identity, the action would have been brought against him. CR 15.03. party relates back.
FROM:
PHILLIPS (LAURA)
VS.
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
STUMBO (CONCURS) AND SHAKE (SENIOR STATUS JUDGE) (CONCURS)
2009-CA-001613-MR old link which has error in it to coa decision
2009-CA-002101-MR corrected link to coa decision (has an "(" in link)
TO BE PUBLISHED
FAYETTE
12/29/2010
