“John Doe” Saves the Day in Washington: Avoiding S.O.L. Defense by Properly Naming “Doe” Defendants

by Cozen O'Connor

In Powers v. W.B. Mobile Servs., Inc., 311 P.3d 58, 2013 WL 5645561 (2013), Division Two of the Washington Court of Appeals held that if a plaintiff (1) names a “John Doe” defendant with “reasonable particularity,” (2) files suit before the statute of limitations runs, and (3) serves at least one defendant within 90 days thereafter, then the plaintiff will be permitted to proceed against the John Doe defendant on the merits even where the Doe’s identity is discovered long after the statute of limitations expired and other defendants were served. This decision provides clear guidance for subrogating carriers on how to properly draft Doe pleadings in cases where the identity of a defendant is unknown.

In Powers, Premier Communities, Inc. (Premier) and Pacific Mobile Structures, Inc. (Pacific) contracted for Pacific to provide various mobile structures at Premier’s construction sites. Premier relocated one of its mobile structures, along with an accompanying handicap ramp, from one project to another. Unknown to Premier, Pacific subcontracted with W.B. Mobile (W.B.) to install the ramp. After partially installing the ramp, W.B. left the site to obtain additional ramp pieces for the project. Meanwhile, Jesse Powers (Powers) suffered personal injuries when the ramp’s platform collapsed while he was walking on it. When W.B. returned, it completed the job, but did not know that Powers had been there or suffered personal injuries.

Powers filed suit on May 28, 2009, five days before expiration of the three-year statute of limitations, alleging that the collapse of the handicap ramp caused him severe injuries. The complaint identified two defendants by name, Premier and Pacific, along with two John Doe defendants. The complaint specified that “John Doe One” referred to the “builder of the handicap access ramp.” Subsequently, in response to Powers’s October 2010 discovery request, Pacific identified W.B. as the installer of the ramp. Four months later, in February 2011, Powers filed an amended complaint, substituting W.B. for John Doe One, and alleging that W.B. was “the builder and/or installer of [the] handicap access ramp” that caused his injury. W.B. moved to dismiss Powers’s claims under the statute of limitations, and the trial court granted the motion and dismissed those claims with prejudice. Powers appealed.

Powers’ original complaint did not merely name a John Doe without distinguishing him from the named defendants. Rather, Powers’s complaint specified that John Doe One referenced the “builder of the handicap access ramp.” According to the court, this ably described the role of the unnamed defendant as it related to the lawsuit and distinguished it from the named defendants. Thus, under Bresina, Powers identified the Doe defendant with “reasonable particularity” before the three-year statute of limitations expired.

The Powers decision provides clear guidance for subrogating carriers in order to toll the statute of limitations against Doe defendants, the complaint should describe the Doe defendant’s role in causing the loss (e.g., “installer”) in such a way that distinguishes the Doe’s negligent acts from the named defendants’ negligent acts. Doing so will make the lawsuit “timely” against unknown Doe defendants.

Outside of Washington, jurisdictions are split with respect to whether they allow John Doe pleading, and are also split with regard to whether an amended complaint (filed after the statute has run) naming the Doe defendant’s real name “relates back” to a timely filed Doe complaint for purposes of tolling the limitations period. Those states that do permit Doe pleading generally require, like Washington, sufficient “particularity” and that plaintiff exercise “due diligence” in ascertaining the unknown defendant’s true identity before the statue expires. Thus, it is imperative that subrogation practitioners know the Doe pleading rules of the particular jurisdiction in which they are filing suit; specifically, practitioners should ascertain whether filing a Doe complaint tolls the statute of limitation under the relevant state’s law. See 85 A.L.R.3d 130 for a 50-state compendium on this issue.

Additionally, when litigating in federal court in states which permit Doe pleading and recognize “relation back” to a timely filed Doe complaint, there is a further split of authority regarding whether state or federal law applies with respect to the relation back issue. These issues are complex and will vary based upon the applicable jurisdiction. Please feel free to consult with us at Cozen O’Connor for clarification regarding your best options.


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Cozen O'Connor

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