Gibson, J.c.c. (temporarily assigned).
This is an automobile negligence action in which codefendant has filed a crossclaim for his own personal injuries arising out of the same accident which forms the basis of plaintiff's complaint. Although the claim was filed beyond the two-year statute of limitations, crossclaimant argues that it was timely in view of R. 4:7-5 which permits the filing of crossclaims "as of right" within 90 days of service of the summons and complaint. The codefendant against whom the claim was filed asserts that the limitation period is not extended by the rule and now moves for summary judgment. R. 4:46-1. Raised by this motion is a question of construction which has not heretofore been dealt with by any reported decision of our courts.
The parties agree that the material facts are not in dispute and accordingly they may be summarized as follows: On December 15, 1975 plaintiff Evelyn Biddle was a passenger in a vehicle being operated by her husband Donald. Their car collided with a second vehicle then being operated by Maria O. Amaya. As a result of the injuries she sustained Mrs. Biddle filed suit on October 27, 1977, joining both her husband and Ms. Amaya as codefendants. Her husband was served on November 2, 1977 and an answer and crossclaim
for contribution was filed in his behalf on December 22, 1977. On February 3, 1978 Mr. Biddle filed a second crossclaim against Ms. Amaya, this time for his own personal injuries.
Pursuant to N.J.S.A. 2A:14-2 personal injury actions must be filed within two years from the date upon which they accrue -- in this case December 15, 1975. Plaintiff's claim was filed within the time period permitted but the answer and initial crossclaim for contribution by Mr. Biddle came just after the statute ran.*fn1 The second crossclaim, the one in question here, was filed approximately six weeks later. Although the statute had obviously run, the 90-day period provided for filing crossclaims had not. R. 4:7-5 reads in part as follows:
(a) Cross-claim. Except as otherwise provided by R. 4:67-4 (summary actions), a pleading may state as a cross-claim any claim by one party against a co-party, * * *
(c) Time for Assertion. Cross-claims may be asserted by any defendant as of right within 90 days after service of the complaint upon the party against whom the cross-claim is asserted, whichever is later. A cross-claim may be thereafter asserted only by leave of court, which shall be freely given * * *.
The comments to subsection (c) indicate that the rule was intended "to avoid protraction of the pretrial discovery period and delay of trial, while at the same time giving defendants sufficient opportunity to assess their positions and determine the appropriateness of filing a crossclaim." Pressler, 1978 N.J. Court Rules , Comment to R. 4:7-5 at
600. There is nothing either in the body of the rule or in the comment to suggest any intention to provide an exception to the statutory limit to filing such a claim.
The matter is complicated, however, by what might be considered to be plaintiff's "late filing" plaintiff and the exceptions to the statute that have been applied in similar cases involving counterclaims. For example, although there is a division of authority, many jurisdictions take the position that the commencement of a tort action tolls the statute of limitations with respect to relief or claims for damages arising out of the same accident or incident and sought by the defendant by filing a counterclaim or similar pleading. See Annotation, "Tort Counterclaim-Statute of Limitations," 72 A.L.R. 3d 1065 (1976); 51 Am. Jur. 2d, "Limitation of Actions", § 203 (citing this view as representing "the weight of authority"). This exception to the running of the statute is justified on the basis that a contrary holding would encourage many plaintiffs with weak claims to file on the last day to avoid legitimate counterclaims. Annotation, 72 A.L.R. 3d, supra at 1067.
The New Jersey cases which have faced this issue have applied the above doctrine only to those pleadings which have been defensive in nature as opposed to those seeking affirmative relief. For example, in Gibbons v. Kosuga , 121 N.J. Super. 252 (Law Div. 1972), plaintiffs, purchasers of land, sued defendants for breach of warranty. Defendants counterclaimed on notes which were given by plaintiffs as part of the purchase price but were then barred by the statute of limitations. The court dismissed the counterclaim insofar as it sought affirmative relief but permitted the use of the notes as a recoupment against the amount due plaintiff. A similar result was reached in Atlantic City Hospital v. Finkle , 110 N.J. Super. 435 (Cty. Ct. 1970). In that case plaintiff hospital sued for services ...