Misnomers

Brien Roche

Misnomers in Virginia can be troubling.  Technically a misnomer is where you sued the correct person or entity but you simply misnamed them.  For instance identifying a person by the wrong first name is simply a misnomer.  Hampton v. Meyer, 299 Va. 121 (2020)  The same principle would apply where a party is identified by the wrong last name.  Richmond v. Volk, 291 Va. 60 (2016)

Misnomers Relate Back

Where those instances occur, an amendment should be allowed based on Code § 8.01-6.

However identifying a defendant by the name “John Doe” because you don’t know the defendant’s correct name is probably not a misnomer.  That is not a mistaken name as contemplated by Rockwell v. Allman, 211 Va. 560 (1971).  

What some attorneys do on occasion is to sue John Doe as a defendant because they don’t know the correct name of the defendant.  That is appropriate under the Underinsured Motorist Statute found at Virginia Code § 38.2-2206.  However it is not otherwise allowed in Virginia law.  To do that and then claim that the naming of John Doe is a misnomer under Virginia Code § 8.01-6 is probably in error.  The only way that would not be an error would be if the actual defendant was named something very similar to John Doe.  In Leckie v. Seal, 161 Va. 215 (1933), the court dealt with a situation where a corporation that didn’t exist was sued.  The case was dismissed.  That’s different than simply a misnomer.

Misnomers-Anonymous Plaintiff

The somewhat reverse situation exists where a plaintiff attempts to sue under an anonymous name.  In that context the court refused to allow the plaintiff to sue under any anonymous name unless such was expressly allowed by statute.  America Online v. Anonymous, 261 Va. 350 (2001)

The long and short of misnomers is that if you truly have a misnomer, then your suit may be amended and the date of filing will relate back to the actual date of filing.  If however you simply sue the wrong party, then you may have a problem.  

Call, or contact us for a free consult. Also for more info on personal injury see the Wikipedia pages. Also see the post on this site dealing with contract issues.