
    CIRCUIT COURT OF THE CITY OF RICHMOND
    Brenda Welch v. Enco Manufacturing Co., Inc., et al.
    May 19, 1999
    Case No. LE-1444-1
   By Judge Melvin R. Hughes, Jr.

M this product liability case one of Me three named defendants have filed a Motion for Summary Judgment or, in the Alternative, Special Plea in Bar. The plaintiff has filed a Motion to Amend the Motion for Judgment.

PlaMtiff filed the Motion for Judgment on June 12,1998, allegMg that on June 13,1996, while usMg a “cut-off saw” manufactured by defendant Enco Manufacturing Company, Me., the movMg party, the saw severed her left hand. This defendant asks for summaiy judgment on the ground Mat it did not come Mto existence until seven months after the accident. Thus, it argues, it could not have manufactured or sold Me saw and cannot be liable as alleged.

For purposes of Me motion, Me defendant Enco admits to Me possibility Mat the saw was sold by Enco Manufacturing Company, a separate entity. This Enco’s assets were purchased under an Asset Purchase Agreement M January 1997. The defendant Enco maMtaMs Mat it did not assume any of Me old Enco’s liabilities and Mat plaintiff has not alleged any facts Mat would impose any such liability on it under any rule.

Mindftil Mat Enco has moved for summary judgment and raised Me bar of limitation to Me claim, plaMtiff asserts Mat Me right defendant is before Me court. M a written motion to amend, plaMtiff contends Mat its Mvestigation had revealed Mat Me defendant uses Me names Enco Company, Enco Manufacturing Company, and Enco Manufacturing, Me., Mterchangeably. PlaMtiff also asserts Mat durMg Mvestigation, Me authorities M IllMois, Me state where defendant does business, advised that Mere was no listing for Enco Manufacturing Co. but did list Enco Manufacturing Co., Inc. For these reasons, plaintiff argues that the defendant should be equitably estopped from asserting that the right defendant is not before the court because the use of substantially similarly names “has led to confusion.”

At the hearing on the parties’ motions, plaintiff did not contest that the Enco defendant named in this case came into existence after the events described in the motion. Rather, counsel argued that the Enco defendant should be estopped from advancing that the correct defendant is not before the court and that die court should view the case as a misnomer and correct the name by an amendment. Counsel for plaintiff also spoke to the allegations in the written motion saying that investigation with the Illinois authorities suggested that the names were interchanged and that the true defendant Enco was listed as originally described and named in the motion for judgment, Enco Manufacturing, Inc. Counsel further argued that the true corporate defendant received notice anyway and should not be allowed to escape the suit by now claiming it is not the proper entity before the court.

The statute governing misnomer reads as follows:

§ 8.01-6. Amending pleading; relation back to original pleading. — A misnomer in any pleading may, on the motion of any party, and on affidavit of the right name, be amended by inserting the right name. An amendment changing the party against whom a claim is asserted, whether to correct a misnomer or otherwise, relates back to the date of the original pleading if (i) the claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading and (ii) within the limitations period prescribed for commencing the action against the party to be brought in by the amendment, that party received such notice of the institution of the action that he will not be prejudiced in maintaining a defense on the merits and he knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against him.

There seems to be no disagreement that the present defendant was not in existence during the time of the events described in the motion for judgment. There is also no disagreement that no basis exists for the defendant Enco’s assumption of the old Enco’s liabilities. So, no liability can be fixed upon it because it did not exist at the time. The question under § 8.01-6 is whether Enco Manufacturing Co. has been on notice of the proceedings “within the limitations period prescribed for commencing the action” so it can be brought in by amendment. A second issue is whether Eneo has done things to mislead and confuse relating to information given to the authorities in Illinois. The court will answer these questions in the negative.

There is no evidence to support the suggestion that Enco Manufacturing Co. has done things to mislead and confuse and thus is estopped from asserting that it should not be included now by amendment. Counsel has merely asserted these things to be true; there is no evidence to support that Enco Manufacturing Co. has done any of them to foster confusion as to its identity. Second there is no evidence that the Enco Manufacturing Co., though not named, received notice of the case within the limitations period. As noted, the case was filed one day before the statute of limitation period, two years. Plaintiffs reliance on cases that say that a defendant has a total of three years to receive notice of a lawsuit under Rule 3:3 and a two year statute of limitations is misplaced. There is no evidence that Enco Manufacturing received such notice within the limitation period contemplated by § 8.01-6. Accordingly, on the basis that the defendant Enco Manufacturing Co. is an entity which was not in existence at the time alleged and could not be liable, its motions are granted. Plaintiffs motion to amend is denied.  