Peter Smythe, P.C.

In Rodri­guez v. Crutch­field, the Court of Appeals for the Fifth Dis­trict (Dallas) affir­med the trial court’s sum­mary judg­ment on sta­tute of limi­ta­tions grounds. The case should prove fair war­ning to busy plain­tiffs’ lawyers.

Rodri­guez, a temp agency emplo­yee, was wor­king as a for­klift dri­ver at Dallas Trans­fer Warehouse. He was unloa­ding a P&H Trans­por­ta­tion trai­ler when Mil­ton Crutch­field, the trailer’s dri­ver, pulled away from the loa­ding dock. That cau­sed the for­klift to crash to the ground with Rodri­guez in it. Rodriguez’s worker’s com­pen­sa­tion carrier sued P&H and Crutch­field for subro­ga­tion and Rodri­guez sued too, but only against Dallas Trans­fer Warehouse. The comp carrier inter­ve­ned in Rodriguez’s law­suit and the court con­so­li­da­ted all the actions. The carrier later non­sui­ted Dallas Trans­fer and P&H with pre­ju­dice and, though it named Crutch­field as a defen­dant, it has never ser­ved him with process.

Rodri­guez amen­ded his peti­tion three years after the acci­dent date to inc­lude P&H and Crutch­field. Both Crutch­field and P&H sought sum­mary judg­ment on limi­ta­tions grounds and got it. Rodri­guez promptly appealed.

On his first point, Rodri­guez argued that the trial court erred in gran­ting sum­mary judg­ment for Crutch­field because Rodri­guez had been named as the nomi­nal plain­tiff in the comp carrier’s suit. The Dallas court rebuf­fed the argu­ment by saying that the mere filing of a law­suit doesn’t avoid the expi­ra­tion of limi­ta­tions. Yes, the comp carrier’s suit had been filed within the two-​year limi­ta­tion period, but it never per­fec­ted pro­cess on Crutch­field. A plain­tiff must not only file suit, but also dili­gently effect ser­vice on the defen­dant. Since Rodri­guez didn’t pro­vide any evi­dence of dili­gent ser­vice on Crutch­field, sum­mary judg­ment as to Crutch­field was proper.

As to P&H, Rodri­guez argued that he had the right to subs­ti­tute in as the real party in inte­rest. The court agreed with that, but obser­ved that the comp carrier’s case had been dis­mis­sed with pre­ju­dice prior to the filing of Rodriguez’s amen­ded plea­dings. “When a case is refi­led follo­wing dis­mis­sal, the sta­tute of limi­ta­tions is cal­cu­la­ted at the date of the refi­ling.” Since Rodriguez’s amen­ded plea­dings were filed after the dis­mis­sal, they were filed after limi­ta­tions had run.

One has to ask “Why didn’t Rodriguez’s law­yer inc­lude P&H and Crutch­field in his ori­gi­nal peti­tion?” The opi­nion doesn’t ans­wer that question.

Read the case here — Rodri­guez v. Crutch­field.

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