Dawn Elaine Patterson and her husband Brooks Patterson appeal the judgment entered by the Jefferson Circuit Court dismissing their claims against Consolidated Aluminum Corporation ("CAC") and its corporate owner Lonza America, Inc. ("Lonza"), as being barred by the applicable statute of limitations. We affirm.
On September 11, 2008, Dawn Patterson was diagnosed with malignant mesothelioma. On August 13, 2009, the Pattersons initiated this legal action, alleging that Dawn's mesothelioma was caused by exposure to asbestos. The Pattersons did not allege that Dawn had been directly exposed to materials containing asbestos at her home or workplace; rather, they alleged that Dawn was a victim of secondary exposure to asbestos as a result of her close contact with her father, Jerry Dison, and her grandfather, Melvin Lester, who they alleged had worked around materials containing asbestos for many years and who had allegedly brought home the asbestos dust that ultimately caused Dawn's mesothelioma. The Pattersons accordingly named Dison's and Lester's employers as defendants in their complaint, as well as various manufacturers of asbestos-containing products that Dison and Lester were alleged to have been exposed to in the course of their employment. The complaint also asserted claims against unknown defendants that had not yet been identified. This appeal concerns only Dawn's claims against the employers of her father, Dison.
Among the defendants named in the Pattersons' complaint were "Phelps-Dodge Corporation a/k/a Phelps-Dodge Industries a/k/a Phelps-Dodge Wire & Cable Group" (hereinafter referred to as "Phelps-Dodge"), and Nichols Wire, Inc. Dison began working for Phelps-Dodge in Florence in 1965, and, although he did not thereafter change jobs, the facility in Florence at which he worked changed ownership and names several times over the years, and, when he retired in 2004, he was formally employed by Nichols Wire. On December 29, 2009, the Pattersons submitted Dison's Social Security employment records to the trial court establishing that Dison had been employed by Phelps-Dodge
On February 22, 2010, the Pattersons received a response to discovery requests
The Pattersons allege that they thereafter served discovery requests upon Quanex and that the responses they received from Quanex on January 19, 2011, alerted them for the first time that CAC and Lonza were potentially liable parties.
On August 15, 2011, CAC and Lonza moved the trial court to dismiss the Pattersons' claims against them on the ground that those claims were barred by the applicable statute of limitations. Specifically, they argued that the Pattersons' claims accrued on September 11, 2008 — when Dawn was diagnosed with mesothelioma — and that, pursuant to § 6-2-38, Ala.Code 1975, the Pattersons accordingly had two years from that date, or until September 11, 2010, to state claims against any parties alleged to be responsible for their injuries. The second amended complaint naming CAC and Lonza as defendants was filed on May 9, 2011 — nearly eight months after that period had expired — and, CAC and Lonza argued, the Pattersons were not entitled to substitute CAC and Lonza in the place of fictitiously named defendants in the Pattersons' earlier timely filed complaint because, CAC and Lonza alleged, the Pattersons had not acted with due diligence to identify fictitiously named defendants or to amend their complaint after fictitiously named defendants were identified.
The Pattersons filed a response to CAC and Lonza's motion to dismiss, denying that they had not acted with due diligence and arguing that the trial court properly allowed their second amended complaint pursuant to Rules 9(h) and 15(c), Ala. R. Civ. P. Rule 9(h) states:
Moreover, pursuant to Rule 15(c), an amendment of a complaint relates back to the date of the original complaint if the provisions of Rule 9(h) are satisfied. See Committee Comments on 1973 Adoption of Rule 15, Ala. R. Civ. P. ("An amendment
On November 15, 2011, the trial court conducted a hearing on CAC and Lonza's motion to dismiss, and, on December 20, 2011, the trial court entered an order granting the motion, stating:
The trial court further certified its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., and, on January 31, 2012, the Pattersons filed their notice of appeal to this Court.
The trial court properly treated CAC and Lonza's motion to dismiss as a summary-judgment motion because evidence outside the pleadings was considered. We therefore review the judgment entered disposing of that motion pursuant to the standard of review we apply to summary judgments. We described that standard in Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004):
The Pattersons argue that the trial court erred by entering a judgment in favor of CAC and Lonza on a statute-of-limitations ground because, the Pattersons contend, the claims they asserted in their second amended complaint were timely in light of the relation-back principles of Rules 9(h) and 15(c). This Court discussed those principles in Ex parte Griffin, 4 So.3d 430, 436 (Ala.2008), stating:
Thus, in order for the relation-back doctrine to apply and justify the substitution of a defendant for a fictitiously named party after the limitations period has run, the plaintiff seeking such substitution must establish: (1) that it stated a cause of action against the defendant in the body of the original complaint, albeit identifying the party only as a fictitiously named party; (2) that it was ignorant of the defendant's identity at the time the original complaint was filed; (3) that it exercised due diligence to identify the fictitiously named party; and (4) that it promptly amended its complaint once it knew the identity of the fictitiously named party. Id. The absence of evidence establishing any one of these factors is sufficient to support a trial court's judgment disallowing the outside-the-limitations-period substitution.
In this case, the Pattersons argue that there is substantial evidence establishing each of these four factors. CAC and Lonza do not challenge the Pattersons' assertion that they were ignorant of CAC and Lonza's identity at the time they filed their original complaint but contest the Pattersons' arguments with regard to each of the other three factors. Because we agree that the Pattersons did not move promptly to amend their complaint to substitute CAC and Lonza as defendants after they knew or should have known that CAC and Lonza were the parties described fictitiously in the original complaint, we limit our analysis to that factor.
The Pattersons argue that, at the time they filed their original complaint, they reasonably believed that Nichols Wire bore responsibility for Dison's, and by extension Dawn's, exposure to asbestos because Nichols Wire had become Dison's final employer in 1991 when it acquired the facility he worked at, and, the Pattersons state, they believed that at the same time it acquired all liabilities for harm done to people on those premises by the previous employers. They further state that they did not become aware that other parties were potentially liable for Dawn's injuries until receiving the discovery responses of Nichols Wire that implicated Quanex. Two days after receiving those responses, they moved to amend their complaint to add Quanex as a defendant and, again they state, they believed at that time that they had named all liable parties. Only when Quanex subsequently provided its responses to discovery in January 2011, the Pattersons argue, did they learn that CAC and Lonza might have some liability, and they therefore moved to amend their complaint to substitute them as defendants. Even though they were aware of CAC's existence before that time, the Pattersons argue, they were unaware of its potential liability. Thus, they argue, they exercised due diligence at all times, and the substitutions should be permitted under Rule 9(h) and Rule 15(c).
Second, when the Pattersons filed their first amended complaint in February 2010 adding Quanex as a defendant (only two days after receiving the discovery first identifying Quanex), they also asserted a new claim against a previously unidentified company, Ormet Corporation, stating:
(Emphasis added.) Thus, in February 2010, the Pattersons apparently had some knowledge of potential liability on the part of CAC because they asserted a claim against Ormet based on its status as successor in interest to CAC. A claim asserted against CAC and or Lonza at that time would have been timely; however, such a claim was not made in spite of the apparent knowledge of the identify of CAC and at least a partial understanding of its role. No "fair-minded person in the exercise of impartial judgment" could reasonably conclude that the Pattersons did not have any knowledge of CAC's potential liability at that time. West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Yet the Pattersons nevertheless waited until May 2011 — approximately 15 months after they should have known that CAC and Lonza were entities to be substituted for fictitiously named defendants and 8 months after the statute of limitations had expired — to seek to substitute CAC and Lonza as defendants. We accordingly conclude that the Pattersons are not entitled to the benefit of the relation-back doctrine because they did not exercise due diligence to amend their complaint promptly once two of the fictitiously named parties in that complaint were identified as CAC and Lonza. The trial court accordingly did not err in entering a judgment in favor of CAC and Lonza. See Ex parte Hensel Phelps Constr. Co., 7 So.3d 999, 1004 (Ala.2008) ("[The plaintiff] plainly failed to comply with the rules governing fictitious-party practice in his overall delay in ascertaining [the petitioner's] identity and in waiting seven months after obtaining knowledge of the identity of [the petitioner] as a defendant to amend his complaint." (emphasis added)); and Sherrin v. Bose, 608 So.2d 364, 366 (Ala.1992) (affirming judgment for the defendant on statute-of-limitations ground where the
The Pattersons' initiated a lawsuit on August 13, 2009, against various companies that manufactured or utilized products containing asbestos, approximately 11 months after Dawn was diagnosed with mesothelioma on September 11, 2008. That lawsuit did not specifically identify CAC or Lonza as defendants; however, on May 9, 2011, the Pattersons sought to amend their complaint to substitute them for fictitiously named defendants. The trial court initially allowed the amendment but, in response to a motion filed by CAC and Lonza, subsequently held that the Pattersons' claims against them were barred by the statute of limitations. We agree; because the Pattersons did not promptly move to amend their complaint to substitute CAC and Lonza as defendants after learning of their identity and potential liability, they are not entitled to the benefit of the relation-back doctrine. The judgment entered by the trial court in favor of CAC and Lonza is accordingly affirmed.
MALONE, C.J., and PARKER, SHAW, and WISE, JJ., concur.