Suing Unknown Defendants in Kentucky
This article aims to provide the framework of statutory and case law surrounding the issue of suing unknown defendants in Kentucky.
IntroductionMany times, not all persons and/or corporations who need to be brought in as parties are known at the time of the filing of a lawsuit. Multiple factors play a role in finding out the names and addresses of which people need to be sued. From a plaintiff*s perspective, knowing who to sue, and where/how to serve them plays a critical role in preserving the statute of limitations. From a defense perspective, if the plaintiff does not sue the proper parties or serves them incorrectly, this can lead to an easy win in barring the plaintiff*s suit via the statute of limitations. Also, defense practitioners need to be aware of how to bring in unknown third-parties for apportionment purposes. This article aims to provide the framework of statutory and case law surrounding the issue of suing unknown defendants in Kentucky.
Finding Who to SueConducting an investigation/discovery prior to the filing of a lawsuit about the persons and/or corporations involved presents many challenges. The options available and their advantages/disadvantages are:
1. Contact the opposing party and see if you can conduct discovery by agreement. Advantage: Both parties get to know something about the others case which may facilitate settlement prior to filing.
Disadvantage: No judge to make decisions when the parties cannot agree.
2. Conduct Internet Research.
Advantage: Most communities have a website which allows the public to access information regarding who owns certain properties via the local property evaluators website. In addition, the Kentucky Secretary of State provides information on Registered Agents of Service, shareholders, directors, officers, etc. for corporate entities which can provide information on potential parties. Finally, the Kentucky Open Records Act provides a vehicle for obtaining records pertinent to your case if it involves records held by a governmental entity.
Disadvantage: Even with the above mentioned resources, there is usually still information about potential parties to a lawsuit that cannot be discoverable until a lawsuit is filed.
Thus, it is for this reason that the Kentucky Rules of Civil Procedure allow parties to sue unknown defendants.
How to Sue Unknown Defendants1. Name them in the complaint as a party. Describe him/her in the complaint and process as *unknown defendant*.
2. Issue process to the unknown defendants via warning order attorney.
a. In order for the clerk to appoint a warning order attorney, the plaintiff or plaintiff*s attorney must also file an affidavit stating the last known address of the defendant or if unknown, stating ignorance of such facts as he does not know.
3. Make sure that the complaint satisfies the requirements of CR 15.03 i.e.
a. the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading
b. within the period provided by law for commencing the action against him, the party to be brought in by amendment (a) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (b) 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.
Suing Unknown Defendants for Apportionment PurposesAn explanation of suing Unknown Defendants for apportionment purposes can best be explained by using an example. You represent Properties LLC, the owner of a roller skating rink that is used to conduct *midnight bingo* events. An unidentified man allegedly carjacked, kidnapped, sexually assaulted and sodomized the plaintiff. She sues Properties LLC alleging negligence in regards to security, lighting, and adequate safety measures, among other things.
1. Request leave from the court to file a 3rd party complaint against the unidentified man as an unknown defendant pursuant to CR 14.01 and CR 4.15 and Ky Farm Bureau v. Ryan.
2. Constructively serve this unknown defendant through a warning order attorney pursuant to CR 4.05, 4.06, 4.07
3. Pursuant to 4.15 and St. Matthews v. Roberts, if the identity or address of the unknown defendant is discovered then amend your complaint accordingly.
4. Defend against any motions by the plaintiff*s to block this apportionment from happening.
5. At trial, request an apportionment jury instruction against the unknown defendant pursuant to McDonalds Corp. v. Ogborn.
6. If punitive damages are alleged, at trial request punitive damages be apportioned pursuant to McDonalds Corp. v. Ogborn.
With respect to any motions that the plaintiff may make to block this apportionment, they may try arguing that the Ky Farm Bureau v. Ryan case is a UM/UIM case and thus unique to that area of law. However, the principles espoused in that case along with Hilen v. Hays stand for the principle that "allocating liability proportionate to fault remains 'irresistible to reason and all intelligent notions of fairness.'" The Court further explains that *we have great faith in the ability of our juries to determine whether an unknown tortfeasor was a legitimate cause of an injury or merely a fraudulent apparition to shift fault.* Thus, the court wants to allow juries to make determinations regarding proportional fault and it is not the court*s place to disallow unknown defendants from being added as parties to litigation where there is evidence pointing to their culpability.
An area which may be troublesome is that the actions of the unknown defendant in the Ryan case are negligent-based (i.e he swerved in front of a car in his motorcycle causing the driver of that car to hit another vehicle). However, the actions of the unknown defendant in our example are likely intentional tort-based (assault, battery). In response to this argument, a clear reading of KRS 411.182 states *In all tort actions* thus even intentional torts are subject to the apportionment statute. In addition, the acts alleged against our clients complained of by the plaintiff are negligence based.
ConclusionKnowing the rules regarding suing unknown defendants can make a big difference in case outcomes. This is why it is so important for both litigants and litigators to understand and utilize these rules to their own benefit. Now that you know how to sue unknown defendants in Kentucky both for apportionment purposes and to prosecute claims, you should have an easier time making sure that all the right parties are held liable for their actions.
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