For affirmance -- Chief Justice Weintraub, Justices Jacobs, Proctor, Hall and Mountain, and Judge Conford. For reversal -- None. The opinion of the Court was delivered by Hall, J.
[63 NJ Page 132] This product liability case presents two important questions concerning the statute of limitations. The first, a choice-of-law question, is whether New Jersey, as the forum state, should apply its limitations statute or that of North Carolina -- the state where all the parties are and where the cause of action arose and all preceding incidents occurred. The second question is whether, in any product liability case in this state in which our limitations law is applicable, the appropriate period is governed by our general statutes of limitations or is four years after the tender of delivery of the defective product as provided in the sales chapter of the Uniform Commercial Code, N.J.S.A. 12A:2-725.
In the complaint plaintiff Roy Heavner, the purchaser of a truck tire from defendant Pullman which had been manufactured by defendant Uniroyal, sought recovery from both for personal injuries to himself and contemporaneous damage to his vehicle. His wife, plaintiff Rebecca Heavner, sought a per quod recovery for loss of consortium. All three claims were alleged to have resulted from a defect in the tire, which blew out while Heavner was driving the rig, causing it to crash into an abutment. Each was stated, in separate counts, on the theories of negligence, breach of express and implied warranty, strict liability in tort and strict liability for misrepresentation as to quality by advertising and otherwise.
Defendants moved in the Law Division before answer filed to dismiss the personal injury and per quod counts on the ground that our two-year personal injury statute of limitations (N.J.S.A. 2A:14-2) applied rather than the Uniform Commercial Code four-year provision and that, on the face of the complaint, action thereon was consequently barred. R. 4:6-2(e).*fn1 The motion was granted*fn2 and the Appellate Division affirmed on the same basis. 118 N.J. Super. 116 (1972). We granted certification on plaintiffs' petition. 60 N.J. 317 (1972).
The facts pertinent to the questions before us are necessarily taken from the complaint and assumed to be true. Plaintiffs were at the time of the accident, and have been
since, residents of North Carolina. Defendant Uniroyal is a New Jersey corporation engaged in the manufacture, sale and distribution of truck tires throughout the United States. Defendant Pullman, a Delaware corporation, is a retailer of trailers equipped with Uniroyal truck tires, likewise doing business throughout the nation.
On October 21, 1966, plaintiff Roy Heavner purchased a truck trailer, having the Uniroyal tire in question mounted on one of its wheels, from Pullman in Charlotte, North Carolina. Presumably the vehicle was registered there. The accident occurred on April 17, 1967 in that state. No suit has ever been instituted in North Carolina. There is agreement that jurisdiction could have been obtained over both defendants in that state and no explanation has been offered why a timely action was not begun there. The present suit was started here on September 25, 1970 -- more than three years after the accident, but less than four years from the delivery of the tire by Pullman to Heavner.
We take it to be conceded that, at the time of commencement of this suit, the applicable North Carolina statute of limitations had expired and any action was barred in that state. The limitations period there for actions for tortious injuries to the person or chattels and upon contract at the times here involved was three years from the accrual of the cause of action, the latest possible date for which would be the date of the accident. General Statutes of North Carolina §§ 1-15(a), 1-52(1), (4) and (5). The Uniform Commercial Code did not become effective in that state until July 1, 1967. (The four-year limitation section specifically provides, 2-725(4), that it shall not apply to causes of action which have accrued before the act becomes effective.) 1 U.L.A.-U.C.C. (master edition), p. xxxvii.*fn3
Choice of Law as to the Statute of Limitations*fn4
It has long been the common law conflicts rule that the statute of limitations is ordinarily a matter of procedure, affecting the remedy and not the right, and is therefore, like other procedural attributes, controlled by the law of the forum rather than that of the state whose law otherwise governs the cause of action. Restatement, Conflict of Laws §§ 603, 604 (1934); Restatement, Conflict of Laws 2 d § 142 (1971); Leflar, American Conflicts Law § 127 (1968); Goodrich, Conflicts of Laws § 85 (4th ed. 1964). New Jersey has consistently followed the rule, although not without some recent criticism. Marshall v. Geo. M. Brewster & Son, Inc., 37 N.J. 176, 180-181 (1962). It is, of course, judge-made and may be changed judicially, as we have done with respect to the matter of the substantive law to be applied to a foreign cause of action. See Mellk v. Sarahson,
49 N.J. 226 (1967); Pfau v. Trent Aluminum Co., 55 N.J. 511 (1970). We think reexamination of the rule is in order.
Sound sense and practical reasons dictate that a suit on a foreign cause of action should be processed and tried according to the procedural rules of the forum state. It would be an impossible task for the court of such a state to conform to procedural methods and diversities of the state whose substantive law is to be applied. The determination of that law is a difficult enough burden to impose upon a foreign tribunal.
A statute of limitations is, however, not subject to the same problems as strictly procedural matters. The limitation period of the foreign state can generally be ascertained even more easily and certainly than foreign substantive law. It came to be included in the category of procedure on the theory that the passage of the period destroys only the remedy and not the right and remedy is considered procedural and governed by the law of the forum. Historically, the thesis developed in England more than two centuries ago when English common law judges restricted as much as possible all reference to or reliance upon the law of foreign countries. Goodrich, supra, p. 152. In any event, the rule fitted very neatly into basic principles of early conflicts law which rather arbitrarily compartmentalized the incidents found in a foreign cause of action into fixed characteristics and mechanical rules in the supposed interests of uniformity and certainty, almost regardless of the justice or good sense of the particular situation -- an approach recently abandoned in this and many other states, at least with respect to the substantive law to be applied. See Restatement, Conflict of Laws 2 d §§ 145, 146.
This law-of-the forum rule as to the applicable period of limitations has been almost universally criticized by legal commentators, especially in recent times when the whole field of conflicts law has been undergoing so much reevaluation by both scholars and American courts. The following is a partial catalog: Leflar, supra, § 127 (1968); Goodrich,
supra, § 85 (4th ed. 1964); Lorenzen, The Statute of Limitations and the Conflict of Laws, 28 Yale L.J. 492 (1919); Vernon, Statutes of Limitation in the Conflict of Laws: Borrowing Statutes, 32 Rocky Mt. L. Rev. 287, 288-293 (1960); McDonald, Limitation of Actions -- Conflict of Laws -- Lex Fori or Lex Loci, 35 Texas L. Rev. 95, 100-107 (1956); Sedler, The Erie Outcome Test as a Guide to Substance and Procedure in the Conflict of Laws, 37 N.Y.U.L. Rev. 813, 846-851 (1962); Ester, Borrowing Statutes of Limitation and Conflict of Laws, 15 U. Fla. L. Rev. 33, 36-39 (1962).
The fundamental illogic and unsoundness of the rule are well set forth in selected excerpts from these writings. Goodrich says:
There is little reason for this rule, other than historical * * *. As an original proposition, it could well be urged that, after suit is barred by the law to which reference is made as governing the claims of the parties, the plaintiff's claim, now deprived of its most valuable attribute, should be unenforceable by action elsewhere. * * * (at pp. 152-153)
Dean Leflar puts it this way:
Professor Lorenzen made one of the first criticisms almost 55 years ago:
There is no reason, as regards statutes of limitation, either, why the internal test, which classifies them as procedural or as relating to the remedy, should be carried over into the conflict of laws. A right which can be enforced no longer by an action at law is shorn of its most valuable attribute. After the enforcement of the right of action is gone under the law governing the rights of the parties, it would seem clear upon principle that the same consequences should attach to the operative facts everywhere. Nor is there any policy pointing to a different conclusion. It follows that no court should enforce a foreign cause of action which is barred by the law governing the substantive rights of the parties. The fact that either the internal law of the forum or the internal law of the foreign state or the internal law of both states may regard statutes of limitation as relating to the remedy is therefore immaterial. * * * (28 Yale L.J. at pp. 496-497)
(He also urged that where the forum's limitation period is shorter than that of the lex loci, the latter should be applied, an aspect we need not pass upon here.)
Professor Sedler finds Lorenzen's criticism to be unanswerable. He observed: "It has never been satisfactorily shown why a suit should be permitted if it cannot be maintained under the law to which the forum looks as a model." (37 N.Y.U.L. Rev. at p. 847)
Professor Vernon adds another consideration against the rule:
By granting relief which would not be available in the place of accrual, or in some other jurisdiction having intimate contact with the transaction or the parties, the forum is applying dual standards to the claim being presented. Whenever considerations call for the application of the contract, tort or other "substantive" law of a foreign jurisdiction, it would appear that its time bar should also be recognized. No special considerations of local policy are presented by the recognition of a foreign statutory bar. * * * (32 Rocky Mt. L. Rev. at p. 291)
Courts have been indeed slow to follow the scholarly lead and candidly change the rule. Only a small handful of cases appear to have considered the possibility. In one, the United States District Court in New Hampshire suggested such a result as an alternative ground ...