On November 11, 2013, Timothy Frazier allegedly slipped and fell in a fast food restaurant restroom owned and operated by Mita Enterprises, LLC (“Mita”).  Frazier v. Liberty Mut. Ins. Co., No. 2018-288-Appeal, 2020 WL 3117048, at *1 (R.I. June 12, 2020).  Three years later, in November 2016, Frazier filed suit against Mita to recover damages for his alleged injuries.  Id.  Mita, however, failed to respond to Mita’s complaint and Frazier filed a motion to default for Mita’s failure to respond to the complaint.  Id.  The Rhode Island Superior Court granted Frazier’s motion and default entered.  Id.  Subsequently, Mita filed a motion to vacate the entry of default and to dismiss the case for lack of sufficient service of process.  Id.  The first trial judge granted Mita’s motions and the case was dismissed on August 4, 2017.  Id.

Frazier later filed a new complaint against Mita in July 2017.  Id.  The process server, however, returned the summons non est inventus (“he is not found”), as Mita was not located.  Id.  Pursuant to Rule 21 of the Rhode Island Superior Court Rules of Civil Procedure, Frazier then moved to substitute Liberty Mutual, Mita’s insurance carrier, as a defendant.  Id.  Objecting to Frazier’s motion, Liberty Mutual argued, in part, that the statute of limitations barred Frazier’s claim.  Id.  Before addressing Liberty Mutual’s defense, however, Frazier renewed his motion to substitute and moved to amend his complaint.  Id.  The parties subsequently agreed that Frazier’s motion to substitute would be granted, but that Liberty Mutual reserved the right to assert any and all defenses, including the statute of limitations defense.  Id.  After Frazier amended his complaint on April 9, 2018, Liberty Mutual moved to dismiss it by arguing that the applicable statute of limitations barred Frazier’s claim.  Id. at *2.  In opposition to Liberty Mutual’s motion, Frazier relied on Rhode Island’s savings statute, arguing that Liberty Mutual was not a stranger to the first action against Mita, and thus, his claim was preserved for an additional year.  Id.  Rhode Island’s savings statute, R.I. Gen. Laws § 9-1-22, provides that:

If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, [the plaintiff] may commence a new action upon the same claim within one year after the termination.”  G.L. 1956 § 9-1-22.

The second trial justice disagreed with Frazier and granted Liberty Mutual’s motion reasoning that Frazier’s claim was not preserved by the savings statute and was barred by the applicable three-year statute of limitations.  Frazier, 2020 WL 3117048, at *2.  Frazier timely appealed.  Id.

On appeal, the Rhode Island Supreme Court held that the second trial judge erred in granting Liberty Mutual’s motion to dismiss because Mita and Liberty Mutual shared “a sufficient commonality of interest,” and, thus, Liberty Mutual was not a “stranger to the original action.”   Id. at *4 (quoting Luft v. Factory Mut. Liability
Continue Reading Rhode Island’s Supreme Court Makes Friends between Insured and Insurer “Strangers”