Bradford v. Dean Distributing Co.

WARREN, J. Plaintiff brought this personal injury action against Dean Distributing Co. (Dean) and Lovelace for injuries she sustained when a vehicle owned by Dean and operated by LeDoux struck the Lovelace vehicle, causing it to strike plaintiffs vehicle. Lovelace did not appear and was voluntarily dismissed by plaintiff. Through discovery, plaintiff learned that LeDoux, although an employe of Dean, was not acting within the scope of his employment for Dean and that Dean was not vicariously liable for LeDoux’s conduct at the time of the accident. Dean was granted summary judgment. Plaintiff joined LeDoux after the statute of limitations had run, contending that her amended complaint related back to the filing of the original complaint under the provisions of ORCP 23C,1 because, “but for a mistake concerning the identity of the proper party, the action would have been brought against him in the first instance.” Plaintiff appeals from a trial court judgment in favor of LeDoux entered on the ground that the claim was not timely filed. Plaintiff at all times knew that LeDoux was the operator of the vehicle and that he was primarily responsible for the accident. If Dean was liable at all, it was due to LeDoux’s negligence. Plaintiff simply elected to bring her action against the supposed employer, not the employe. A mistake as to which of two known potential defendants is liable is not a mistake as to who is a proper party within the meaning of ORCP 23C. See, e.g., Parker v. May, 70 Or App 715, 690 P2d 1125 (1984). Affirmed.