153 N.J. Super. 434 | N.J. Super. Ct. App. Div. | 1977
This case, here on our grant of leave to appeal, raises the troublesome question of when a third-party claim for contribution or indemnity is deemed commenced for purposes of permitting a plaintiff to amend and claim directly against a third-party defendant without being barred by the statute of limitations. The trial judge refused to permit plaintiffs to amend their complaint to name R. J. Longo Construction Company, Inc. (Longo) as a direct defendant, and they appeal. The controlling Supreme Court cases, Lawlor v. Cloverleaf Memorial Park, Inc., 56 N. J. 326 (1910), and McGlone v. Corbi, 59 N. J. 86 (1911), do not provide a complete answer to the particular problem here posed. Plaintiffs suggest we adopt the solution embraced by Ioannou v. Ivy Hill Park Section Four, Inc., 112 N. J. Super. 28 (Law Div. 1970), which presented a factually similar situation.
In Lawlor v. Cloverleaf Memorial Park, supra, the original defendant filed and served the third-party complaint before the two-year period had run. The Supreme Court held that the original plaintiff had a right to amend and make the third-party defendant a direct defendant after the two-year period of limitations had expired. Justice Jacobs for the court rejected the third-party defendant’s .assertion of the statute of limitations defense because it was already properly in the law suit and had been charged with the third-party claims before the period of limitations expired. Justice Jacobs stated that “we are convinced under the compelling
In McGlone v. Corbi, supra, defendant and third-party plaintiff, with the consent of plaintiff, filed his third-party complaint more than two months after the statute of limitations had run. Plaintiff sought a joinder of the third-party defendant as a direct defendant many months later on the day of trial. The Supreme Court held the attempt to amend the plaintiff’s original complaint related back only to the date of filing the third-party complaint. Since the third-party complaint was filed after the bar of the period of limitations, plaintiff was precluded from asserting a direct claim. Lawlor and McGlone delineated in a clear fashion a plaintiff’s right to amend and bring a direct action in those cases where the joinder of the third-party was indisputably effected before or after the period of limitations had expired.
The present case bears a closer resemblance Ioannou v. Ivy Hill Park Section Four, Inc., supra. There defendant’s motion for joinder was filed well before the statutory period of limitations. Defendant’s notice of motion included an annexed copy of the third-party complaint. The motion was granted and the order was signed by the court within the two-year period. The order was not filed with the Clerk in Trenton until after the two-year period. The third-party defendants were served later. The third-party complaint was never filed as a separate pleading. In loannou Judge Ackerman held that “they became parties as third-party defendants, so far as any statute of limitations problem is concerned, when the motion for leave to serve the third-party complaint was filed.” 112 N. J. Super, at 40. The court in loannou was persuaded to its course by the need for an objective standard for determining when the action was commenced. An objective standard, if achievable, was thought more consistent with the design of the rules and promoted uniformity'. At the time of the filing of the motion to
We believe the result reached in Ioannou is preferable to the alternative reached by the trial judge and more consistent with the philosophy suggested by Lawlor and McGlone. The result of a given case then need not turn on the vagaries of when the motion is heard, when or if a formal third-party complaint is actually filed after leave is granted, when the order is' signed and filed, the postponement of motions beyond the' critical date, the dismissal and reinstatement of motions, or when process is issued, and the third-party complaints are actually served and notice received. We hold that if an original defendant moves pursuant to the requirements of 22. 4:8-1 (a) to join a third-party defendant before the period of limitations expires, and attaches a copy of the proposed third-party complaint to the motion in accordance with the rule, the third-party complaint is deemed filed and the third-party action commenced when the motion is filed. This result fairly complies with 22. 4:3-2 which states “A civil action is commenced by filing a complaint with the court.” A plaintiff’s amended complaint joining the third-party defendant as a direct defendant would then relate back under 22. 4:9-3 to the date of the filing of the motion to join the
We reverse, remand, and direct the trial court to issue an order granting plaintiffs’ leave to name the third-party defendant Longo as a direct defendant.