Bugay v. Clark Co. School Dist. ( 2014 )

 sued under its own name and because Bugay failed to allege sufficient
facts to establish a viable claim for gross negligence. Additionally, the
district court dismissed Bugay's punitive damages claim because punitive
damages are not available against a political subdivision of the State of
Nevada. See NRS 41.035. Thus, the district court dismissed all of Bugay's
causes of action, except her negligence claim against CCSD. The district
court order dismissing these two causes of action directed Bugay to file an
amended complaint.
Bugay did not file an amended complaint as directed by the
district court's order of dismissal. Instead, she filed a motion for leave to
file an amended complaint that would include: (1) her remaining
negligence cause of action against CCSD, (2) a claim of gross negligence
against CCSD, and (3) a request for medical expenses incurred by Lamb.
The district court denied Bugay's motion for leave to amend, finding that
her proposed complaint failed to state a claim for gross negligence, and
that Lamb's claim did not relate back to the original complaint. 2
Approximately two months after the district court denied
Bugay's first motion for leave to amend, Bugay filed a second motion for
leave to amend. Specifically, Bugay sought to file an amended complaint
that would include: (1) her remaining negligence cause of action against
CCSD, (2) a newly alleged breach of contract claim against CCSD on her
own behalf, and (3) Lamb's own breach of contract claim against CCSD.
2 It was undisputed that the two-year statute of limitations for tort
actions had run on Lamb's claim pursuant to NRS 11.190(4)(e). NRS
11.190(4)(e) creates a 2 year statute of limitations for negligence actions.
SUPREME COURT
OF
NEVADA
2
(01 1947A esr,
The district court found that Bugay's and Lamb's proposed
breach of contract claims sounded in tort, not contract. As a result, the
district court determined that Lamb's proposed causes of action were
barred by the statute of limitations under NRS 11.190(4)(e), and thus, any
amendment would be futile. 3
After being denied leave to amend her complaint, Bugay filed
a motion for summary judgment on her negligence cause of action against
CCSD. Bugay sought $865,694.60 in past medical expenses, past pain and
suffering, and past hedonic damages. In light of NRS 41.035's cap on
damages against political subdivisions, CCSD filed a countermotion for
summary judgment in favor of Bugay in the amount of $75,000. The
district court granted summary judgment in favor of Bugay, but limited
damages to $75,000 pursuant to NRS 41.035. Bugay now appeals.
Consequently, we conclude that the district court did not abuse its
discretion in denying either Bugay's first or second motion to amend.
3 The district court order stated that Lamb's claim was barred by the
statute of limitations, but did not explicitly state that the statute of
limitations had run with respect to Bugay's proposed claim. Instead, the
district court stated that Bugay's proposed claim sounded in tort, and was
therefore futile. Thus, it is unclear whether the district court determined
that an amendment to include Bugay's contractual claim would be futile
because (1) it is barred by the statute of limitations, or (2) the second
claim was merely a recasting of her existing tort claim. In the district
court, CCSD only argued that the statute of limitations had run on Lamb's
claim. Therefore, it appears that the district court determined that
Bugay's proposed claim was futile because it was a recasting of her
existing tort claim.
SUPREME COURT
OF
NEVADA
3
(0) 194/A ceD
Standard of review
"A motion for leave to amend is left to the sound discretion of
the trial judge, and the trial judge's decision will not be disturbed absent
an abuse of discretion." Univ. & Cmty. Coll. Sys. V. Sutton, 120 Nev. 972,
988, 103 P.3d 8, 19 (2004).
Under NRCP 15(a), leave to amend a party's pleadings "shall
be freely given when justice so requires." NRCP 15(a); see Costello v.
Cagier) 127 Nev. , 254 P.3d 631, 634-35 (2011). "However, leave to
amend should not be granted if the proposed amendment would be futile."
Halcrow, Inc. v. Eighth Judicial Dist. Court, 129 Nev. „ 302 P.3d
1148, 1152 (2013). A proposed amendment is futile if the plaintiff
attempts to plead an impermissible claim. Id.The district court did not abuse its discretion in denying Bugay's first
motion to amend
Bugay argues that the district court abused its discretion in
denying her first motion to amend her complaint to include Lamb's claim
for recovery of medical expenses incurred on behalf of Bugay, who was a
minor at the time of the accident, under the relation back doctrine. We
disagree.
Nevada has not established a standard for amending
pleadings in the context of an untimely plaintiff. See Costello, 127 Nev. at
, 254 P.3d at 634-36; Echols v. Summa Corp., 95 Nev. 720, 722, 601
P.2d 716, 717 (1979) ("[A] proper defendant may be brought into the action
after the statute of limitations has run if the proper defendant (1) receives
actual notice of the action; (2) knows that it is the proper party; and (3)
has not been misled to its prejudice by the amendment."). However, we
find the California approach persuasive.
SUPREME COURT
OF
NEVADA
4
(0) I 947A
California state courts have refused to allow an amended
pleading that adds a new, untimely plaintiff if the new plaintiff "seeks to
enforce an independent right or to impose greater liability against the
defendants." San Diego Gas & Elec. Co. v. Superior Court, 53 Cal. Rptr.
3d. 722, 725 (Ct. App. 2007); Bartalo v. Superior Court, 124 Cal. Rptr. 370,
374-75 (Ct. App. 1975). In San Diego Gas, the trial court allowed a group
of plaintiffs to amend their complaint to include the widow of a deceased
marine. 53 Cal. Rptr. 3d. at 724. The trial court allowed this amendment
on the basis that the defendant would not be prejudiced because it knew of
the widow's existence and received an economic analysis of her loss of
support claim before the statute of limitations had expired. Id. However,
the court of appeal concluded that the trial court erred in allowing
plaintiffs to add the widow as a plaintiff to assert an expired wrongful
death claim, because the new plaintiffs claim inserted a new cause of
action that sought to enforce an independent right. Id. at 727-28.
We are persuaded by the reasoning of the California state
courts, and conclude that a party may not amend its complaint to add a
new plaintiff after the applicable statute of limitations has run on the new
plaintiffs claim, if the new plaintiff "seeks to enforce an independent right
or to impose greater liability against the defendants." San Diego Gas, 53
Cal. Rptr. 3d. at 725. See also Asher v. Unarco Material Handling, Inc.,
596 F.3d 313, 320 (6th Cir. 2010) (finding that an amendment that adds a
new, untimely plaintiff did not relate back); Pappion v. Dow Chem. Co.,
627 F. Supp. 1576, 1581-82 (W.D. La. 1986) ("The policy for statutes of
limitations would be circumvented if a plaintiff is allowed to amend his
complaint and add a new plaintiff merely because the new plaintiffs claim
arose from the same transaction or occurrence of the original claim and
SUPREME COURT
OF
NEVADA
5
(0) 1947A e
the defendant was aware that the new plaintiff existed."). Allowing such
an amendment would undermine applicable statutes of limitation and
deny defendants their interest in repose. We therefore conclude that the
district court did not abuse its discretion in denying Bugay's first motion
for leave to amend her complaint to add Lamb's claim for recovery of
medical expenses because Lamb's proposed claim sought to enforce an
independent right and impose greater liability against CCSD after the
applicable statute of limitations had run.
The district court did not abuse its discretion in denying Bugay's second
motion to amend
Bugay argues that the district court erred when it found that
the gravamen of the proposed breach of contract claims sounded in tort
rather than in contract. We disagree.
"[T]he object of the action, rather than the legal theory under
which recovery is sought, governs when determining the type of action for
statute of limitations purposes." Stalk v. Mushkin, 125 Nev. 21, 25-26,
199 P.3d 838, 841 (2009) (citing Hartford Ins. Grp. c. Statewide
Appliances, Inc., 87 Nev. 195, 197, 484 P.2d 569, 571 (1971)). Here, the
second proposed amended complaint sought to include breach of contract
claims based on the agreement's clause stating that CCSD "agreed to fully
instruct [Bugay] and other class participants 'of all safety regulations in
accordance with [CCSD] and OSHA requirements." While Bugay argues
that this creates a discrete contractual duty, we conclude that the district
court correctly found that the gravamen of the proposed breach of contract
claims was to recover damages resulting from Bugay's personal injuries
when the plywood fell on her as a result of CCSD's negligence. Thus, we
conclude that the district court did not err in ruling that Bugay's and
SUPREME COURT
OF
NEVADA
6
(0) 1947A
Lamb's proposed claims for breach of contract sounded in tort, and were
therefore futile. 4 Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
b..4
Parraguirre
Saitta
)41140 J.
cc: Hon. Michael Villani, District Judge
Lansford W. Levitt, Settlement Judge
Aldrich Law Firm, Ltd.
Clark County School District Legal Department
Eighth District Court Clerk
4 We have considered the parties' remaining arguments and conclude
that they are without merit.
SUPREME COURT
OF
NEVADA
7
(0) 1947A (410c4