Amended complaint

[AEGee]

What is the name of your state?What is the name of your state?
California

My wife and I were hit by a driver that admitted to falling asleep at the wheel. I filed a complaint (in pro per - my mistake) in order to comply with the SOL. I have been dealing with the driver's insurance company in order to settle the case. I did not put my wife on the original complaint. May I file an amended complaint in order to add her to the same claim since it is from the same incident?

[I AM ALWAYS LIABLE]

Originally Posted by AEGee

What is the name of your state?What is the name of your state?
California

My wife and I were hit by a driver that admitted to falling asleep at the wheel. I filed a complaint (in pro per - my mistake) in order to comply with the SOL. I have been dealing with the driver's insurance company in order to settle the case. I did not put my wife on the original complaint. May I file an amended complaint in order to add her to the same claim since it is from the same incident?

My response:

What was the exact date of the accident?

IAAL

[I AM ALWAYS LIABLE]

My further response:

Well? Was my question too tough?

IAAL

[stephenk]

Plus, is your wife planning on representing herself?

[AEGee]

California

date of accident was 6/17/03
date of initial filing was 6/14/05

And yes, my wife would be representing herself in the same action with me.

At this time the driver's insurance company is planning on settling the case but I wanted to make sure that the papers were in order with the court in case they don't.

I understand that I may amend the complaint once and this is to be done prior to the defendant being served/answering the complaint. Is this correct?

Thx again for your responses.

[I AM ALWAYS LIABLE]

Originally Posted by AEGee

California

date of accident was 6/17/03
date of initial filing was 6/14/05

And yes, my wife would be representing herself in the same action with me.

At this time the driver's insurance company is planning on settling the case but I wanted to make sure that the papers were in order with the court in case they don't.

I understand that I may amend the complaint once and this is to be done prior to the defendant being served/answering the complaint. Is this correct?

Thx again for your responses.

My response:

You better settle for whatever you can get. You'll never get around Woo v. Super.Ct. (Zarabi) (1999) 75 Cal.App.4th 169, 180, 89 Cal.Rptr.2d 20, 27--amendment to substitute D for Doe improper where P failed to review information in his possession that would have revealed D's identity.

There is no "relation back" where parties were known, but there was a failure to include them in the complaint. To add her now would be tantamount to filing after the Statute of Limitations - - completely demurrable.

You blew it.

IAAL

[stephenk]

is the insurance company still making any settlement offers toward your wife? If yes, accept it. Your wife has no leverage on the carrier to pay any more money to her.

[AEGee]

Thx for the responses.

Yes, the insurance company is discussing settlement. They will settle with me and for my minor son but stated that since my wife's name was not on the complaint as a Plaintiff that they would not settle with her.

I take it that there is nothing that can be done?

[stephenk]

wife is out of luck.

[fejee]

Originally Posted by stephenk

wife is out of luck.

unless****************************...the insurance carrier did not advise her in writing of the sol, sixty days prior to the sol expiring.

OR

if your wife is under the age of 18, which i doubt.

[stephenk]

the impression i got from the poster is that wife was never mentioned as a claimant before litigation began (no prior settlement offer). It would seem odd to forget her from the Complaint if there was ongoing settlement talks.

[I AM ALWAYS LIABLE]

Originally Posted by stephenk

the impression i got from the poster is that wife was never mentioned as a claimant before litigation began (no prior settlement offer). It would seem odd to forget her from the Complaint if there was ongoing settlement talks.

My response:

I don't know how you could have had that impression. The writer's opening sentence was "My wife and I were hit by a driver that admitted to falling asleep at the wheel." There was no indication, from what I have read, that the wife was "not mentioned before litigation began." I have no idea how you could have extrapolated that scenario from the given facts.

Why would it seem odd that he would forget her? Most men are accused of "forgetting" their wives all the time!

IAAL