1 At the time the lawsu it wa s fi led, t he correc t n ame for t

he ins urance company was Conti nentalInsur ance Co mpa ny. Since the lawsu it has been f iled, the name of

the company has changed t o Encompass Insur ance. Both parties refer to th e insu rance company as CNA at th e tri al court level and on appeal and, i n order to mai ntai n consis tency , we wil l al so. 

### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE March 20, 2002 Session
JERI VINCENT v. CNA INSURANCE COMPANY
Appeal from the Circuit Court for Williamson County No. 11-01410 Russ Heldman, Judge

No. M2001-02213-COA-R9-CV - Filed December 23, 2002

After being injured in

an auto a ccident , Jeri Vincent entered into negotiations with CNA Insur ance Co mp an y, the insurer of

the driver of the other

vehicle, attempting to settle her property damage and personal injury claim. The prope rty damag e claim was settled. M s. V incent filed a civil action agains tCNA I

nsuranc e to protect her pe rsonal in ju ry claim from the statute of limitations. Later, Ms. Vincent filed a motion to substitute a party pursuant to Tenn. R. Civ. P. 15.03 in order to name the driver of the other vehicle as the defendant. The trial court denied the motion and dismissed the
cause of action. We r everse

and rema

nd the decision of the

trial cou rt beca use we f ind that Ms. Vincent complied with the requirements of Tenn. R. Civ. P. 15.03.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed and Remanded

P AT RICIA J. C OTT RELL , J., deliver ed the opinion of the

court, in which B EN H. C ANT RELL , P.J., M.S., and H AMIL TON V. G AYDEN , J R ., S P

. J., joined.

Keith Jorda

n, Nashvi lle, Tennessee, f or the ap pellant, Jeri Vince

nt.

Na nc y Wi ll ia ms Ph il li ps , N as hv il le , T en ne ss ee , for th e a pp el le e, CN A In su ra nc e C om pa ny.
OPINION

On January 16, 1999, Jeri Vincent was injured in a two car motor vehicle accident when her
car was struck by a

n automobile driven by Donna F. Gibson. Ms. Gibson was insured by CNA Insurance Company

(“CNA”). 12 The word “uninsured” appearing in the ord er is simp ly a misstate men t, and the trial clearly m eant “insu red.”
-2- Ms. Vincent had no further contact with Ms. Gibson after the c ollis ion. Ms. Vincent was contacted by an adjuster f

or CNA, who expressedregret for the accident, accepted financia l responsi bility for her damage s, and pa

id for the repair costs to her Nissan Altima. Ms. Vincent was treated for wha t was initia

lly t hought to be a soft tissue injury, but eventua lly discovered she ha

d a rupturedcervical disc; she intended to settle her personal injury claim directly with the insuranc e carrier without litigation or legal repr esentation.

In Decemb er 1999, Ms. Vince nt was inf

ormed by CNA adjus ter Rober

t Webb that she needed to file an action before January 16, 2000, in order to keep her claim alive. On January 14, 2000, Ms. Vincent filed a pro se civil act ion in William son County General Sessions Court which listed CNA as the defendant. The civil action was brought for “protection of the statute of one year for bodily injury and/or pe rsonal in jury sustaine d as a

result of a

mva on 1-16-99.” It also stated that “further evaluation of injuries are in proce ss.”

CNA was served on February 3, 2000. Ms. Vincent spoke with Julie Salyers, a litigation specialist in de pe nd en tl y co nt ra ct ed by t he in su ra nc e c om pa ny, abou t her claim. On or about Februa ry 21, 2000, M s. Gibson w as infor med of the

lawsuit f iled by Ms. Vince

nt against CNA by Warren Tucker, a CNA claims represe ntative.
On June 4, 2001, CNA filed a motion to dismiss or in the alternative to set for trial. Upon receip t of that motion, Ms. Vincent hired counsel. The action was transferred to the Williamson County Circuit Court by

agreement of the parties.

On July 25, 2001, Ms. Vincent filed a motion to substitute a party by

changing the named defendant to Ms. Gibso n rather

than CNA. The motion to amend w as denied by th e trial court, which basedits holding on Smith v. Southeastern Properties, Ltd. , 776 S.W.2d 1 06 (Tenn . Ct. App. 1999). The trial court stated:
This case [ Smith ] also contains the following language : ‘in the context of litigation neither an insurance company

nor persons employe d by it are ag ents of the uninsured.’ 2 Id . at 110. Accordingly , statements made to Plaintiff [Jeri Vincent] by the adjuster

will not sus tain the r

elation b ack of Pla

intiff’sclaim

against the alleged tortfea sor, Donna F. Gibson, under T.R.C.P. 15.03. This result on its face m a y appear grossly inequita ble to Plaintiff since it is undisputed that in January 1999 the adjuster for Defendant ‘assured [her] that his employ er was accepting financ ial responsi bility for the injuries caused by the negligen c e of its ins ured, Donna F. Gibson.’ Therefore, the Court grantsPlaintiff permission to take a T.R.A.P. 9 appeal of this order to the Tennessee C ourt of Appeals, Rule 9(a)(2) criteria being applicable.-3-

This court subsequently ente red an order

that granted Ms. Vinc ent’s Te nn. R. App. P. Rule 9 application, limiting the issue on app eal to whethe r or not the trial c ourt err ed in deny

ing Ms. Vincent’s motion to substitute a party and stay ing any further trial court proceedings.

Ge ne ra ll y, a revie

w of a de nial to ame

nd pleadings is g overned

by t he abuse of disc retion standardof rev iew. Henderson v. Bush Bros. & Co. , 868 S.W.2d 236, 237-38 (Tenn. 1993). Reversal is appropriate where the trial court applies an incorrect legal standard or reaches a decision that causes an injustice to the party complaining. Eldridge v. Eldridge , 42 S.W.3d 82, 85 (Tenn. 2001); Ballard v. Herzke , 924 S.W.2d 652, 661 (Tenn. 1996).

I. Relation Ba

ck of Ame

ndments

Ms. Vincent

attempte d to change defendants in the lawsuit she filed against CNA and argue s that the rela tion-bac k provisio ns of Ten

n. R. Civ. P. 15.03 should app ly to save her claim ag ainst

Ms. Gibson fr om the stat

ute of limitations. T

he relevant sec tion provi des:

Whenever

the claim or defense asserted in amended ple adings arose out of the conduct, transaction, or occurrence set forth o r attempted to be set forth in the original pleading, the amendment relates back to the da te of the o r iginal plead ing. An amendment changing the party or the naming of the party by or against whom

a claim is asserted relates back if the foreg oing pro vision is sa

tisfied a nd if, with

in the periodprovided by law f or commencing an

acti on or within 120 days after commencement

of the action, the p arty

to be brou ght in by

amendme

nt ( 1) has received such notic e of the institution o f the ac tion that th e party will n ot be prejudiced

in maintaining a defense on the merits, and (2) knew or s hould have known that, but for a

mistake c oncerning the id entity of the proper party , the action would have been brought aga inst the party.

Tenn. R. Civ. P. 15.03. Ms. Vincent’s attempted amendment herein is covered by the second sentence of

Tenn. R. Civ. P. 15.03. “Chan ging” a p arty incl udes a ddin g, dropping or substituting a party . 6A C HARLES A. W RIGH T , ET AL ., F EDERA L P RACTICE & P ROCEDURE § 1498 (2d ed. 1990). When the amendment seeks to change a party

to the lawsuit, the claim asserted by or against that new party will be considered

filed on the da te of the or iginal p leading when the

require ments of th

e rule a re met. Doyle v . Frost , 49 S.W.3d 853, 856 (Tenn. 2001).

“The goal behind Rule 15, as with all the Rules of Civil Procedure, is ‘to insure that cases and controversies be determined upon their merits and n ot upon l egal technicalities or procedura l niceties.’” Doyle , 49 S .W.3 d at 85 6 (quo ting Karash v. Pigott , 530 S. W. 775, 777 (Tenn. 1975)). Thus, Tenn. R. Ci v. P. 15.03 i s constru ed liber ally in order to promote the consideration of claims
on their merits. Floyd v. Rentrop , 675 S.W.2d 1 65, 168 (Tenn. 1984 ); Townes v. Sunbeam Oste r-4-

Co., Inc. , 50 S.W.3d 446, 451 (Tenn. Ct. App. 2001); McCrack en v. Brentwood Unit

ed Metho dist Church , 958 S.W.2d 792, 797 (Tenn. Ct. App. 1997).

The principa

l purpose of Rule 15 .03 is “to enable a plaintiff to correct a plea ding error after th e statute of limitations has run if the correction will not prejudice his adversary in any way .” Doyle , 49 S. W.3d at 856 -57 (q uoti ng Schiavone v. Fortune , 477 U.S. 21 , 38, 106 S. Ct. 2379, 2389 (1986) (Stevens, J. dissenting)).

Ms. Vincent’s amendment will relate back to the date she orig inally filed the lawsuit if: (1) the claim arose out of

the same conduct, transaction, or occurre nce as that of the original

complain t; (2) notice was received by Ms. Gibson either w ithinthe statut e of limita tions or one hundre d twenty (120) day s t hereaf

ter; (3) Ms. Gibson

is not pre

judiced in maintain

ing a de fense by the dela y in naming her; and (4) Ms. Gibson either knewor should have known she would have been sued had it not been for the mistake. There is no dispute that

the claim or defense to be asserted by Ms. Vincent in the amended plead ings aris es out of the same occ

urrenc e, the au

tomobile a

ccident , as that o f the orig inal civil warrant she filed

in General Sessions Court in January of 1999. The question is whether the other requirements are met.

II . Sufficiency of

Notice under Tenn. R. Civ. P. 15.03

Under Tenn. R. Ci v. P. 15.03 , the p arty to be added must be gi ve n notice o f the law suit wi th in th e s ta tu te of

li mi ta ti on s o r w it hi n 1 20 da ys after commencement of the lawsu

it. Notice in the context of Tenn. R. Civ. P. 15.03 means notice of the lawsuit, not notice of the underly ing injury suffered by

the plaintiff. Smith , 776 S.W.2d a t 109; McCracken , 958 S.W.2d at 798. Notice may be formal or informal, and does not require service of the complaint upon the party af fected by the amendment. McCracken , 958 S.W.2d at 797.

Unoffic ial, informal notice that a lawsuit has been filed coupled with knowledg e of the facts on which the lawsuit is based may suffice as long as the rule’s othe r requirements are satisfied.

Id . at 798.

The trial court herein based its decision on Smith v. So utheast ern Properties, Ltd. , 776 S.W.2d 106 (Tenn. Ct. App. 1999). In Smith , the plaintiff attempted to establish notice of a laws uit, contrary to the swor

n affida vits of the parties t o be added that they

were unawar

e of the c laim until after the applicab le time limit, by imputing notice based on a alleged agency relationship. The lawsuit involved the death of a y oung boy in an apar tment swimming pool. The amendment at issue sought to add the limited partnership which was the owner of the apa rtment complex at the time of the incident and its general and limited partners. The insure r of the entity name d in the or igi nal complaint had hired an independent insurance adjuster to investig ate the boy’sdeath. H e sent a copy3 We note that t he court in Sm ith did not hol d that notic e ca n n ever be imputed. The plaintiff relied on the knowledge of one or more “age nts .” One of those a ll eged ag ents was t he attorn ey wh o had been couns el of record for the original defendant entity as well as present counsel for the partnership plaintiff sought to ad d. T he co urt did not ho ld that know ledge by a p arty’s attorn ey cou ld not be impu te d. Instead, it held that the record showed that the first appeara nce by the att orney at i ssu e was made two months after t he stat ute of limi tati ons (then the deadline for notice)
ran and, thus, the facts d id no t dem onstra te that the re quirement s of t

he rul e had been met. 776 S.W.2d at 110. Federal
cou rts have h eld tha t constru ctive o r impu ted no tice will suffice. Singletary v. Penn sylvania D ep’t of Co rr. , 266 F. 3d 186, 195 -96 (3d Cir. 2001).
-5- of the plaintiff’s notice letter to the insurer and to its attorney

. He identified the insured as the partner ship which was the subject o f the late r amendm ent. However, the adjuster/investigator never had contact with the partnership entity . There was no evidence that the parties to be added had hired the adjuster or the attorney or that they eve

n knew either

of them. The plaintiff argued that notice of the lawsu

it to the ins urer of

the original def

endant should have be en imputed to the general partner ship and its parties. This court disagreed, stating “While we find no ca se law on this point from Tenness ee, it

has been held that in the context of litigation neither an insurance company nor persons employed by

it are agents of the insured.” Smith , 776 S.W.2d at 110 (citi ng Attleboro Mfg. Co. v. Frankfort Marine, Accident &Plate Glass Ins. Co. , 240 F. 573, 581-82 (1st Cir. 1917)).

The Smithopinion continues to stand for the proposition that notice to the party to be added cannot be imputed simply from notice to the party’s insuranc e company. McCracken , 958 S.W.2d at 797. Howe

ver, the re is an im

portant d istinctio n between Sm ith and this case. In Smith , the adjuster forthe insurance company had no contact whatsoever with the party to be added by the amendme nt, and ther

e was no p

roof th at th e party’ s insurer had provided notice to the party . The plaintiff in Smithdid notallege

the part ies to be added had actual knowledge or notice of the original lawsuit and attempted to rely on the knowledge of one or more a lle ged “agents.” He

rein, CNA concedes that Warr

en Tucke r, its agent, informed Ms. Gibson of the lawsuit brought by Ms. Vincent
on February

21, 2000, o nly thirty -five (35) day s after M s. Vince nt filed he

r action . Thus, it is undisputed that Ms. Gibson received actual notice of the lawsuit, and questions of imputing notice through agency a re not pr esent. 3

In McCracken , this court held that a phone call from a reporter to a ch urch’s senior pastor satisfied the notice requirements of Tenn. R. Civ. P. 15.03. In that ca se, the plain tiffs had origina lly mistakenly sued

the churchfoundation and attempted to amend by adding the church itself. After concluding that notice to thesenior pastor was notice to the church, the court found the following important in deciding the sufficiency of the not

ice:

The senior pastor

conceded that he was aware that Ms. McCracken had fallen a t the church, and he specifically recalled that the newspaper report er asked questions relating to the newly filed

lawsuit. E

ven thoug h the tele phone ca ll was no t in w riti ng, it provided the senior pastor with actual notice tha t th e McCrackens had filed a lawsuit against the church seeking da mages for the injuri es stemmi ng from Ms. McCrack en’s fa ll.-6-

McCracken , 958 S.W.2d at 797-98. Federalcourts ha ve similar ly held infor

mal notice

is suffic ient.
First, Rule 15(c)(3) notice does not require ac tual serv

ice of pr ocess on t

he party sought to be added; notice may be deemed to have occurred whe n a party who h a s somereason to expect his potential involvement as a defendant hears of the
commencem ent of

litigation through some informal means. See Var la ck v . SWC Caribbean, Inc ., 550 F.2d 171, 175 (3d Cir. 1977) (holding tha t a person w ho the plaintiff sought to add as a defendant had adequa t e notice under 15(c)(3) when, within the relevant period, the person by ha ppenstance saw a copy

of the complaint naming both the place where he worked and an “unknown employ ee” as a defendant, which he knew referred

to him); see also Berndt v. Tennessee , 796 F.2d 879, 884 (6th Cir. 1986) (notice nee d not be fo rmal); Eakins v. Reed , 7 10 F.2d 184, 187- 88 (4th Cir. 1983) (s am e); Kirk v. Cronvich , 629 F.2d 404, 407-08 (5th Cir. 1980) (same). At the same time, the notice received must be more than notice of theevent that gave riseto the cause of action; it must be notice that the plaintiff has instituted the action. See Bechtel v. Robinson , 886 F.2d 644, 652 n.12 (3d Cir. 1989). Singletar y v. Pennsylvani

a Dep’t o f Corr ., 266 F.3d 186, 195 (3d Cir. 2001).

If a telephone call

from a re

porter u nrelate d to eithe

r the pla in tiff orthe defe

ndant is sufficient to provide notice, certainly a telephone call from an insurance compa ny which has bee

n handling the claim

to its insur

ed is also sufficient. The typ e of notic e requir ed is “fa ir notice that a legal clai m existed in , and was in effect being asser ted by” plaintiff. Smith , 776 S.W.2d at 109 (citi ng Williams v. United States , 405 F.2d 234, 236-38 (5th Cir. 1968)).

CNA maintains that the notice did not meet the time requirements in Tenn. R. Civ. P. 15.03. The argument is that Ms. Gibson did not receive notice before the expiration of the statute of limitations an d t ha t t he am en dm en t w as no t f il ed wi th in 12 0 d ays of th e filing of the co mplaint. While both those statements are factually correct, we cannot ag

ree that either disqualifies the proffered amendment from relating back to the original complaint.

The language of Tenn. R. Civ. P. 15.03 is clear as to the time requirement placed on notice to the party to be a

dded: “within the period provided by la w for commencing an action or within 120 da ys after commencement of the action.” The provision allowing notice within 120 day s of the filing of the action was added to t he lang uage o f Tenn. R. Civ. P. 15.03 in 1995 t o inco rporat e “langu age similarto that adopted in the f ederal version to change the unf ortunate result of decisions such as Schiavone v. Fortune , 477 U.S . 21, 106 S. Ct. 2379 (1986).” Tenn. R. Civ. P. 15.03 Advisory Commission Comment (1 995). Prio r to the 1995 amendment, a party seeking to amend a pleading to change a party

was required to prove notice was had by the party to be added prior t o the expiration of

the statute of

limitations. The 1995 amendment obviously chang ed that result, as was intended. We note that in Doyle , the Tennessee Supreme Court found sufficient notice that was given118 days afte

r the filing of the complaint, where the complaint had be en fi le d o nl y fi ve da ys before the statute of limitations period expired.4 CNA has no t raised herein the i ssue of whether the amendment

was fi led so l ate that

it shoul d not be all owed. It is impo rt ant

to n ote th at Tenn. R. Civ. P. 15. 03 cont ains no ti me li mit ati on for seeking amendment to a pleading. Tenn. R. Civ. P. 15.01, however, all ows a part y to amend t he pleadi ngs: (1) once as a matte r of cour se a t any time bef ore a responsive plead ing is serv ed; an d (2 ) within 1 5 da ys afte r a ple ading is served if the pleading is one to which no responsive plea ding is permi tt ed and t he act ion has not

been set for t rial . Otherw ise, a par ty may am end a plea ding o nly by wri tt en cons ent of t he adve rse part y or by lea ve of the cou rt, which “sh all be fre ely given as justice so req uires.” Tenn. R. Civ. P. 15.01. In this case, M s. Vinc ent sou ght to amend her complai nt and s ubsti tut e parti es nearl y eig hteen months aft er the fil ing of her complai nt. However, becaus e a motion to dismiss i s not a responsive pleading, the fil ing of a pre-answer motion to dismiss by CNA did not cut off Ms. Vincent’s right t o amend her com plaint once as a matter of cour se. See Adams v. Carte r County Mem. Hosp. , 548 S. W.2d 307 , 309 (Te nn. 197 7); McBurney v. Aldrich , 816 S.W.2d 30, 33 (T enn. Ct. App. 1991). Further, we no te that C NA has no t argue d that the delay p rejud iced M s. Gib son’s defen se. Addit ional ly , CNA’s moti on to di smis s was fi led a lmost seve ntee n mont hs af

ter the laws uit

was i nit iat ed.
-7- CNA’s second argument rega rding timeliness is that Rule 15.03 requires that the “relation back amendment be requested no more than 120 days a fter the commencement of the action.” That proposition appears nowhere in the language of the rule. To the contrary , the 120 days clea rly refe rs to notice to the par

ty to be broug ht in by amendme

nt. 4
Thus, we find that Ms. Gibson had actual notice of the lawsuit filed by Ms. Vincent

within the time provided by t

he rule. Timely

notice is not all that

is requir ed, howe ver, bec ause Te

nn. R. Civ. P. 15 .03 requires that the party to be added receive such notice that he or she will not be prejudiced

in maintaining a de fense on the merits. A s to that requireme nt, this court state d in McCracken :
The church was not

prejudic ed in

defending against the suit because it knew about Ms. McCracken’s fallas soon as it happened. It also knew tha t its insurer had been negotiating a settlem

ent with the McCra

ckens’ l awyer for q

uite so me ti me . F in al ly, the church knew that the McCrackens wer e looking to the church for damag es and

. . . that the McCrackens’ lawy er had mistakenly na

med the foundation as a defendant rather than the church.

McCracken , 958 S.W.2d at 798.

Similarfacts in the case before us compel the concl usion that Ms. Gibson would not be prejudiced in this case. Ms. Gibson was well aware of the accident at thetime it happened. CNA had already

settled the pr operty dam age portion of Ms. Vincent’s claim, appare ntly admitting liability for its insured, Ms. Gibson, and had been in active negotiations reg arding the personal injury claim. In fact, it s eems that the only portion of the claim which w as not successfully ne gotiated before the statut

e of limita

tions ran was the a

mount of pe

rsonal in jury damage s sustaine d by

Ms. Vincent. It remains undisputed, as the trial c ourt found, that an adjuster from CNA“assured [Ms. Vincent] that his em

ploy er was a

cceptin g financial res ponsibilit y f or the in juries caused by

the neg ligenceof its insur

ed, Donna

F. Gibson .” I

t appear s that CNA u

ndertook to repre sent M s
. Gibson’s interest with regard to the claim by Ms. Vincent.-8-

The record indicates that CNA appeared through its attorney in the trial court to oppose the motion to amend by substituting parties. CNA ha s filed a brief in th is appeal for the same purpose. Since CNA has undertaken to represent Ms. Gibson’s interests in this matter, CNA would have a difficul ttime in cla imin g, and in fa ct does not attempt to

claim, that its defense of the personal injury claim has been prejudiced. In addition, CNA make s no asser tion on app eal that M s. Gibson w ould be prejudic ed in

defending Ms. Vincent’sclaim bec ause of s ome deficiency in the notice or timing thereof that she received. Merely having to defend the lawsuit does not constitute prejudice so as to preclude the relation back of an amendme nt adding a party

. See Osborne Enters. v. City of Chattanooga , 561 S.W.2d 160, 164 (Tenn. Ct. App. 1977).

We conclude that Ms. Vincent has met the requirements of Tenn. R. Civ. P. 15.03 regarding notice to the party to be a dded with regard to time, sufficiency , and lack of prejudice.

II I. Knowledge

and Mistake The final requirement is that the part y to be broug ht into the l awsuit

by amendment “kne

w or should have known that, but for a mistake concerning the ide ntity of the proper pa

rty, the action would have been brought aga

inst the party.” Tenn. R. Civ. P. 15.03. This requirement has not been freque ntly discussed, as a separate requirement, by courts of this state. In fact, our c ourts have often stated that notic e is the c ritical element in determining whether amendments re late back to the original pleadings. Floyd , 675 S.W. 2d a t 168; Smith , 776 S.W.2d at 109.

The concepts, however, are not unrelate d. The requirements of notice an d know ledge together seek to prevent the situation where “a person who ha s had no reason to know that he or she is expected to respond to a claim will be brou ght in to a suit” after the time limitations in the rule. Tenn. R. Civ. P. 15.03 Advisory Committee Comments. The objective of these and othe r require ments of the rule is to avo id the app lication o f the st atute of limitations when no prejudice would result to t

he party sought to be added by

the amendment. 6A C HARLES A. W RIGH T , ET AL ., F EDERA L P RACTICE & P ROCEDURE § 1499.

Both require ments ar e often analy zed together as in McCracken , discussed above, and in Floyd v. Rentrop , 675 S.W.2d 165 (Tenn. 1984). In Floyd , the plaintiffs originally sued Dr. Reisser, believing he was the lead surgeon perf orming the operation at issue, but later su ed Dr. Rentrop, ba se d o n v ar io us re co rd s i nd ic at in g h e p er fo rm ed th e s ur ge ry, and nonsuited the claim against Dr. Reisser. Later, the plaintiffs attempted to amend the ir amended

complain t to add Dr. Reisser, having learned that Dr. Reisser in fact

was the lead

surgeo n. After

finding that Dr. R

eisser h ad notice

within the required time period, the Supreme Court found: He and Dr. Rentrop have been represented by the same counsel in the case. Under such circumstances, he would not be prejud iced in maintaining his defense on the merits and he kn ew, or should have know that, but for mistake concerning the identity of the proper party , the action would not have been dismissed as to him and instituted against his partner, who he knew did not perform the surgery

. . . . As to5 Tenn. R. Civ . P. 15.03 ha s been const rued by Te nnesse e cou rts con sistently with fed eral inter preta tion of Fed. R. Civ. P . 15(c ). See , e.g., Chapman v. King , 572 S. W.2d 925 (T enn. 1978); Ka rash v. Pig gott , 530 S.W .2d 775 (T enn. 1975); Gambl e v. Hosp it al Cor p. of Am

. , 67 6 S

. W.2 d 3 40 (Te nn . Ct . App. 1984); 6A C HARLES A. W RI GHT , E T A L ., F ED ERA L P RACTICE & P ROCEDURE § 1498.
-9- his knowledge of the

actio n ins titu ted agai nst Dr . Rent rop, s uch kn owled ge will be imputed to h

im since it

is conce ded that Dr. Reisse r and Dr . Rentrop

are par tners. Floyd , 675 S.W.2d at 168.

Alth ough not specifically labe led as such, these comments implicate another principle often applied to determine if an amendment should relate back: iden tity of interest. 6A C HARLES A. W RIGH T , ET AL ., F EDERA L P RACTICE & P ROCEDURE § 1499. Un der the Fede ral Rulesof Civil Procedure which have the same requirements for an a mendment to relate back, federal courts have held that if a sufficient identity of inter est exists between the new def endant a nd the ori ginal one so that relation back would not be prejudicial, then relation back is proper

. 5 Woods v. Indiana Univ.- Purdue at Indiana

polis , 996 F.2d

880, 889 ( 7th Cir. 199 3); Serrano v. Gonzalez , 909 F.2d 8, 12 (1st Cir. 1990). The original defendant and the defendant sought to be added have an identity o f intere st when they are

s o closely rela

ted in business or other activities that it is fair to presume the added partie s learne d of the institution of the action shortly after it wa s commenced. Wilson v. United States , 23 F.3d 559, 563 (1st Cir. 1994) (quoting Hernandez Jimenez v. Calero Toledo , 604 F.2d 99, 102-03 (1st Cir. 1 979)); Serrano , 909 F.2d at 12. This identity of intere st inquiry is relevant

to both the sufficiency

of notice, and particularly the prejudice therefrom, and the knowledge that the added party was omitted due to a mistake.

With regard to the requirement that the party to be added knew or should h ave known that, butfor a mist

ake, the action wo

uldhave been brought aga inst him, “the courts pr

obably will apply something akin to a reasonableness test . . . . Relation back will be refused only if the court finds that there is no reason why

the party to be a

dded should have understood that he was not named

due to a mistake.” 6A C HARLES A. W RIGH T , ET AL ., F EDERA L P RACTICE & P ROCEDURE § 1498. The test has been described as whether the omitted defenda nts, viewed as reasonably prudent people, ought to have been able to anticipate or should have expected that the character of the originally pleaded claim might be called into question. Dorsey v. St. Jose ph Co. Jail

Officials , 910 F. Supp. 1343, 1349 (N.D. Ind. 1996), rev’d on other grounds , 98 F.3d 1527 (7th Cir. 1996) (reversing the gr ant of summary judgme

nt to defendants because of a dispute of material f acts regarding the incide

nt).

In order f or an ame ndment ad

ding pa rties to r elate back, a plaintiff must show that the failure to name the defendants sought to be added by amendment

resulted from a mistake concerning the identity of

the proper party . Tenn. R. Civ. P. 15.03. “A ‘mista ke’ within the mea

ning of t his rule does not exist

merely bec ause a party

who may be liable f

or conduct alleged

in the original complaint
was omitt ed as a party de fendant.” Smith , 776 S .W.2 d at 10 9 (cit ing Jenkins v. Carruth , 583 F. Supp. 613, 616 (E.D. Tenn. 1982)). However, “mistake” must mean more than a mere mislabeling of th e p ro pe r p ar ty, because thenotice and knowledge requirements of the second sentence of Tenn.-10-

R. Civ. P. 15.03 do not apply to attempts to simply correct the mislabeling of a party

. Grantham v. Jackson -Madison

County Ge n. Hosp. D ist. , 954 S.W.2d 36, 37-38 (Tenn. 1997).

A mistake includes a mistake of law as well as a mistake of f act. Soto v. Br

ooklyn Co rr. Facility , 80 F.3d 3 4, 36 (2d Ci r. 1996); Woods , 996 F.2d at 887.

Th is phrasi ng of the

‘mistake ’ criter

ion was int

roduced in the 1966

amendme

nt to Rule 15. Acco

rding to the Adviso

ry Committe e Note accompany ing the 1966 amend ment, the language was prompted by several cases in which plaintiffs, una ware of the technical requirements of the law, mistakenly named institutional instead of individual defendants . . .

. In the se case s, plaintif fs, who we

re requ ired by statute to sue t he Secretary

of Health, Education and Welfare, ‘had mistakenly named as defendant s the Unite d States, t he Depa rtment of HEW, and th

e Fede ral Secu rity Administration (a nonexistent agency). . . .’ Fed. R. Ci v. P. 15 advisory committee note( 1 966 amendment). The amendment was expressly intended to preserve legitimate suits despite such mistakes of law at the pleading stag e.
Soto , 80 F.3d at 36 (some citations omitted).

Federalcourts have found themistake requirement satisfied where a pro se plaintiff has sued
a defendant who could not be liable under the law, most often in 42 U.S.C. § 1983 actions where the plaintiff originally na

med a gov ernmental entity and la ter sought to add individual officials or employees. Soto , 80 F.3d a t 36-37; Serrano , 909 F.2d at 14-15.

The mistake made h erein b y Ms. Vin cent, actin g pro se , was that she sued the insuran c e company with whom she had been dealing and who had paid pa rt of her claim, instead of the insured driver of the car that hit her. Ms. Vincent’s brief filing, the ge neral sessions warrant, contains enough information to make i t clear t hat she w as suing

for injur ies rec eived in t

he motor v ehicle accide nt. Ms. Vincent mistakenly failed to na me the party a

lleged to have caused the injury , the proper party in a negligence action. Nonetheless, Ms. Gibson was driving thevehicle which ra n into Ms. Vincent. Ms. Gibson was fully aw are of the ac cident a nd her pa rt init. CNA knew or shoul d have known that the pro per defendan t was its insured, Ms. Gibson, and that Ms. Gibson was not named originally

only through a

mistake.

CNA’s course of conduct herein has established an identity of intere st betwee

n itself a nd its insured withregard to Ms. Vincent’s claim and resulting lawsuit. While a number of situations may arise where the insured and the insurer do not have the same interest, or in fact may have an tagonis tic interest s, such is not the case before us. Not only did CNA und

ertake to negotia

te and pa rtially settle Ms. Vince

nt’s claim, assuring her it would be f

inancia lly r esponsibl e, it

also undertook before the courts to represent Ms. Gibson’s interests in opposing the amendment. If Ms. Gibson is not added, the dismissal of the lawsuit will stand, and CNA will face no furthe r liability . Thus, it

has an int erest in preven ting the

substitutio n of Ms. Gib son. We find this situa tion to demo nstrate a

suffic ientl y identica l interes t to justify

the rela tion back of the am

endment.-11- IV. Conclusion Applying the legal standards explained above, we conc l ude that M s . Vincent met the require ments Tenn. R. Civ. P. 15.03. Consequently, we reverse the judgment of the trial court. The proposedamendment

add ing Ms. Gibson is allowed and relates back to the date of the or iginal plead ing. The costs of the appealare taxed to the appellee, CNA, for which executio n may issue if
ne ce ss ar y.

___________________________________ PATRICIA J. COTTREL L, JUDGE