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Scolaro v. Marlatt

Decided: December 28, 1983.

KATHERINE A. SCOLARO, PLAINTIFF,
v.
SAMUEL F. MARLATT AND WELSH FARMS, INC., DEFENDANTS



Minuskin, J.s.c.

Minuskin

Plaintiff moves after the statute of limitations has run to amend her complaint to include her husband's claim for loss of consortium. Relief is sought pursuant to R. 4:9-3.*fn1 Although the motion is made by plaintiff, the court will consider it as an application by her husband to assert a cause of action to be joined with her complaint.

Plaintiff, who sustained injuries in an automobile accident on August 31, 1981, filed suit on September 22, 1982. Her husband failed to join as a party plaintiff on his per quod cause of action. Prior to this motion and before the statute of limitations had run defendant requested and received answers to interrogatories respecting the "loss of society, services and consortium."*fn2 The issue raised is whether R. 4:9-3 is applicable

so as to permit the amendment despite the expiration of the statute of limitations.

After the running of the statute of limitations, R. 4:9-3 permits the joinder of additional parties defendant when there is an absence of substantial prejudice. In its determination the court must consider the following:

First, the amendment must meet the general criterion of the rule vis-a-vis the transactional relationship between the originally pleaded claim and the claim sought to be raised against the new party. Second, the new party must have had, prior to the running of the statute of limitations, such notice of the institution of the action as to enable him, without substantial prejudice, to defend it on the merits when belatedly joined. Third, the new party must have known or should have known that, but for plaintiff's error in identifying the proper party, the action would have been brought against him. [ Smelkinson v. Ethel & Mac Corp., 178 N.J. Super. 465, 471 (App.Div.1981)]

However, the rule refers only to parties defendant -- "the party against whom a claim is asserted" -- and does not provide for amendments which seek to add party plaintiffs asserting an omitted claim. There is no authority to support the plaintiff's position. A case decided in the United States District Court which interpreted Fed.R.Civ.P. 15(c), after which R. 4:9-3 is patterned, did permit a party plaintiff to be added to assert a per quod claim for loss of consortium. However, that case is readily distinguishable because the relief that was requested was not opposed. Hoch v. Venture Enterprises, 473 F. Supp. 541, 542 (D.V.I.1979).

Additionally, the claim of plaintiff's spouse would be barred under R. 4:28-3(b),*fn3 which requires per quod claims to be joined in the main action. The court, however, may permit its later assertion if it finds "good cause" for the failure of initial joinder.

Plaintiff's complaint inadvertently omitted her husband's consortium claim. Despite this both plaintiff and defendants proceeded under the mistaken impression that it had been asserted as evidenced by the interrogatories demanded and the responses given. Had there been a claim to join an additional party defendant the relief would be granted since the criteria set forth in Smelkinson v. Ethel & Mac Corp., supra, are present. There is a transactional relationship between the main cause of action and the new claim. The husband's per quod action is derivative and arises out of plaintiff's complaint. Defendants had notice of husband's action prior to the expiration of the statute of limitations through the receipt of plaintiff's answers to interrogatories. Also, defendants knew or should have

known that but for plaintiff's error, the spouse's action ...


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