Lemus v. Potter

An amendment to substitute the correct defendant for the named defendant in an automobile accident case changes the party against whom the claim is asserted and relates back only if all three conditions set out in ORCP 23 C are satisfied. Hamilton v. Moon, 130 Or App 403, 405, 882 P2d 1134, rev den, 320 Or 492 (1994).

Lemus was injured in an auto accident involving Matthew Potter, the son of Gary Potter. Lemus filed a negligence action in which she alleged that her injuries were caused by Gary Potter. Two days before the statute of limitations ran, Lemus amended her complaint to name “Gary Potter AKA Mathew … Potter.” Gary Potter sought dismissal on grounds that Lemus had sued the wrong individual. The trial court found that Lemus’ amended complaint could not relate back under ORCP 23 C and dismissed the case. On appeal, Lemus challenged the dismissal and argued that her complaint met the requirements of relation back under ORCP 23 C. An amendment to substitute the correct defendant for the named defendant in an automobile accident case changes the party against whom the claim is asserted and relates back only if all three conditions set out in ORCP 23 C are satisfied. Hamilton v. Moon, 130 Or App 403, 405, 882 P2d 1134, rev den, 320 Or 492 (1994). The Court held that Lemus failed to meet the requirements for relation back under ORCP 23 C in that Matthew Potter did not receive notice within the applicable statute of limitations period. Affirmed.