2005-064, JUAN PEREZ v. PIKE INDUSTRIES, INC. & a.

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Merrimack
No. 2005-064
JUAN PEREZ
v.
PIKE INDUSTRIES, INC. & a.
Argued: October 19, 2005
Opinion Issued: December 30, 2005
Edward M. Gainor, of Amherst, by brief and orally, for the plaintiff.
Wadleigh, Starr & Peter, P.L.L.C. , of Manchester (Todd Hathaway on the
brief and orally), for defendant Pike Industries, Inc.
GALWAY, J. The plaintiff, Juan Perez, appeals the Superior Court’s
(McGuire, J.) dismissal of his negligence claim against defendant Pike
Industries, Inc. (Pike) on the ground that it was barred by the statute of
limitations. We affirm.
The record supports the following facts. On August 25, 2000, in the
course of his employment, the plaintiff was loading furniture onto a delivery
truck on West Main Street in Newton. While loading the furniture, the plaintiff
allegedly injured his ankle when his foot sank into a patch of soft pavement on
the edge of the highway. On or about August 19, 2003, the plaintiff brought
negligence claims against the State of New Hampshire, the Commissioner of
the New Hampshire Department of Transportation, and the New Hampshire
Department of Transportation (DOT), alleging his injury “was caused by the

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failure of defendant State of New Hampshire, through the agents, servants, and
employees of the Department of Transportation to exercise due care and proper
workmanship in the paving and patching of the area at the edge of the road.”
On September 3, 2004, the plaintiff moved to add Pike as a party
defendant, alleging “[d]iscovery has revealed that Pike Industries held a
subcontract with the state for maintenance of the roadway in question, and
therefore may be liable for the condition of the roadway and in particular the
paving at the time of the Plaintiff’s injury.” The trial court granted this motion
on September 23, 2004.
By motion dated November 1, 2004, the State and DOT moved to dismiss
the plaintiff’s claims. One month later, Pike filed a motion to dismiss the
plaintiff’s claim on statute of limitations grounds. By order dated December
30, 2004, the trial court dismissed the plaintiff’s claims against all defendants.
The plaintiff then appealed the trial court’s decision to this court. We affirmed
the trial court’s dismissal of the plaintiff’s claims against the State and DOT by
order dated June 28, 2005. We now address the plaintiff’s appeal of the trial
court’s dismissal of his claim against Pike.
“The standard of review in considering a motion to dismiss is whether the
plaintiff[’s] allegations are reasonably susceptible of a construction that would
permit recovery.” Benson v. N.H. Ins. Guaranty Assoc., 151 N.H. 590, 594
(2004). Although we assume the truth of the facts as alleged in the plaintiff’s
pleadings and construe all reasonable inferences in the light most favorable to
the plaintiff, we will uphold the granting of the motion to dismiss if the facts
pled do not constitute a basis for legal relief. Id.
On appeal, the plaintiff asserts his claim was not barred by the three-
year statute of limitations because: (1) the discovery rule exception in RSA
508:4, I, applies; and (2) his initial writ named Pike as a party by its reference
to the “agents, servants, and employees” of the State. We disagree.
Pursuant to RSA 508:4, “all personal actions, except actions for slander
or libel, may be brought only within 3 years of the act or omission complained
of” unless the discovery rule exception applies. RSA 508:4, I (1997). The
statute of limitations constitutes an affirmative defense. Glines v. Bruk, 140
N.H. 180, 181 (1995). However, once the defendant establishes that the cause
of action was not brought within three years of the alleged act, the burden
shifts to the plaintiff to raise and prove the applicability of the discovery rule
exception. Id.
Under the discovery rule exception to the statute of limitations, when the
injury and its causal relationship to the act or omission were not discovered
and could not reasonably have been discovered at the time of the act or

3
omission, the limitations period only begins to run when “the plaintiff
discovers, or in the exercise of reasonable diligence should have discovered, the
injury and its causal relationship to the act or omission complained of.” Big
League Entm’t v. Brox Indus., 149 N.H. 480, 485 (2003); RSA 508:4, I. This
two-pronged rule requires that, before the statute of limitations will begin to
run, the plaintiff must know or reasonably should have known that he has
been injured and that his injury was proximately caused by conduct of the
defendant. Id. Thus, the discovery rule exception does not apply unless the
plaintiff did not discover, and could not reasonably have discovered, either the
alleged injury or its causal connection to the alleged negligent act.
The primary purpose of the statute of limitations is to “ensure timely
notice to an adverse party and to eliminate stale or fraudulent claims.”
Donnelly v. Eastman, 149 N.H. 631, 634 (2003) (citations omitted). “The
statute of limitations establishes a deadline after which the defendant may
legitimately have peace of mind; it also recognizes that after a certain period of
time it is unfair to require the defendant to attempt to piece together his
defense to an old claim.” Id. (quotations omitted).
Here, neither party disputes that the plaintiff was aware of the injury
when it occurred on August 25, 2000. Nor do the parties dispute that the
plaintiff was aware of the causal connection between the plaintiff’s injury and
the alleged negligent paving. Rather, the plaintiff argues that when the injury
occurred, he could not reasonably have known: (1) that the State
subcontracted out the paving of that portion of the highway; and (2) the
identity of the company subcontracted to complete those services. The plaintiff
asserts this information was only obtainable through discovery, and the statute
of limitations was, therefore, tolled until he learned that the State had
subcontracted with Pike to pave that portion of the highway. We disagree.
We have previously declined to apply the discovery rule where the
plaintiff-employee, who was allegedly injured by a defective loading dock, failed
to include in his lawsuit either the manufacturer or installer of the alleged
defective equipment until learning of their identities, through discovery, after
the three-year statute of limitations had run. Glines, 140 N.H. at 181-82. In
Glines, we reasoned that the plaintiff knew of both the injury and “the fact that
there was some causal link to the defective loading dock,” and we declined to
apply the discovery rule based upon the plaintiff-employee’s failure to
investigate the identity of the manufacturer or installer of the machinery. Id. at
182.
Here, the plaintiff knew of his injury and its causal connection to the
alleged negligent paving when the injury occurred. In dismissing the plaintiff’s
claim against Pike, the trial court correctly reasoned that the plaintiff’s failure
to investigate and identify the subcontractor who actually applied the

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pavement to the highway does not warrant the application of the discovery
rule. Similar to the plaintiff in Glines, the plaintiff in this case should have
known to include “as a possible wrong-doer” the subcontractor who actually
paved that portion of the highway. See Glines, 140 N.H. at 182.
The State is an entity, and it is not unreasonable to expect a plaintiff,
under these circumstances, to anticipate that some investigation will be
required to ascertain the identity of the person or entity that actually paved the
road. Just as the plaintiff in Glines was expected to investigate the identity of
the distributor and installer of the defective machine, the plaintiff in this case
was expected to investigate, with reasonable diligence, whether the State hired
a subcontractor to complete the paving, and, if so, the identity of that
subcontractor. Were we to allow plaintiffs to avoid investigating all parties to a
claim by filing a lawsuit and then waiting to identify other potential responsible
parties during the lengthy discovery process, it would circumvent the primary
purposes of the statute of limitations—to ensure timely notice to the defendant
and eliminate stale claims. See Donnelly, 149 N.H. at 634. We decline to do
so.
Relying on Dupuis v. Smith, 114 N.H. 625 (1974), the plaintiff argues, in
the alternative, that his initial writ, by naming the State through its “agents,
servants, and employees,” satisfied the statute of limitations. He asserts that
his subsequent amendment was “to simply clarify the previous wrongdoers who
were alluded to in the original writ, once their identities became known.” We
disagree.
In Dupuis, an action to recover damages for injuries resulting from a gas
explosion, the plaintiff filed suit against Smith Properties, Inc., d.b.a. R.H.
Smith Company prior to the expiration of the statute of limitations. Dupuis,
114 N.H. at 626-27. The intended defendant was Ralph H. Smith Corporation,
and its trade name was the same as the named defendant’s name. Id. at 627.
Both the named defendant and the intended defendant had utilized a similar
name at various times since the inception of each entity, and the clerk and the
agent for service of process for both corporations was the same person. Id.
After speaking with the agent for service of process, the intended defendant’s
owner assumed, as of the date of service of process, that his company was the
real object of the plaintiff’s suit. Id. Subsequently, after the statute of
limitations had expired, the plaintiff learned that he had named the wrong
party defendant, and moved to amend both his writ and his declaration to
name the intended defendant. Id. at 626. The plaintiff subsequently appealed
the trial court’s denial of his motions to amend. Id. at 627.
In reversing the dismissal of the plaintiff’s case, we recognized that our
policy of liberally allowing amendments permits the addition of a party in the
case of misnomer, which involves the misdescription of a properly served party,

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whereas it does not generally permit the addition of an entirely new party in
cases involving mistaken identity, where the wrong party had been brought
before the court. Id. at 628. We reasoned that the effect of amendment in a
case of misnomer is to “improve the description of the party who has already
been duly notified,” whereas in a case of mistaken identity, an entirely new
party is introduced. Id. Thus, in Dupuis, we reversed the trial court’s denial of
the plaintiff’s motions to amend, reasoning that the plaintiff’s association of the
intended defendant’s trade name with the wrong defendant manifested his
intent to sue the intended defendant. Id. at 629. We concluded that the
crucial fact was that the intended defendant received actual notice of the suit
prior to the expiration of the statute of limitations. Id.
We are not persuaded by the plaintiff’s reliance upon Dupuis. Unlike
Dupuis, this is not a case of misnomer or mistaken identity. Nor is it a case of
service made prior to the expiration of the statute of limitations. Here, the
plaintiff failed to name Pike, or any other subcontractor, as a party-defendant
in his claim. Furthermore, unlike the defendant in Dupuis, Pike did not
receive actual notice of this pending suit prior to the expiration of the statute of
limitations. While actual receipt of notice will cure technical defects in the
manner of delivery, see Dupuis, 114 N.H. at 630, no such notice occurred in
this instance. Thus, unlike the situation in Dupuis, allowing the plaintiff’s
amendment after the statute of limitations had expired in this case would
prejudice Pike.
Moreover, other than the generalized inclusion of “agents, servants or
employees of the State,” which the plaintiff argues includes subcontractors
such as Pike, the plaintiff failed to specifically identify Pike as a defendant. We
are aware of no precedent, and the plaintiff provides us with none, to support
the plaintiff’s contention that a generalized assertion of a class of potential
defendants is specific enough to qualify as a named party that can be
“clarified” by subsequent amendment after the expiration of the statute of
limitations. This position is untenable and would potentially allow plaintiffs to
circumvent the applicable statute of limitations by incorporating a broad
generalized class of defendants in the original writ, and subsequently
“amending” the writ for “clarity” after the statute of limitations had run.
Accordingly, we conclude Glines is controlling and affirm the trial court’s
dismissal of the plaintiff’s claim against Pike as untimely.
Affirmed.
BRODERICK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ.,
concurred.