On appeal from the Superior Court, Law Division, Camden County.
Pressler, Brody and Havey. The opinion of the court was delivered by Pressler, P.J.A.D.
Plaintiffs Michael and Terry Wimmer, husband and wife, were injured when their automobile was involved in a collision with an automobile owned by defendant Nancy Clehm and operated by defendant George W. Coombs, III. Their complaint against defendants was filed only several days before the running of the statute of limitations and by inadvertence their attorney neglected to include a claim for relief based on Mrs. Wimmer's injuries, joining her as a plaintiff only for purposes of assertion of a per quod claim arising out of her husband's injuries. After the statute of limitations had run, plaintiffs sought leave under R. 4:9-3 to file an amended complaint to assert Mrs. Wimmer's direct claim based on her own personal injuries. Defendants, on leave granted, appeal from the trial judge's order granting the motion to amend. We affirm.
The issue raised is whether, under the circumstances here, the amendment asserting a claim for Mrs. Wimmer's injuries may be permitted to relate back to the date of the filing of the original complaint in order to save the claim from the bar of the statute of limitations.
Relation back is governed by R. 4:9-3, entitled "When Amendments Relate Back" and providing in full as follows:
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading; but the court, in addition to its power to allow amendments may, upon terms, permit the statement of a new or different claim or defense in the pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
The second sentence of this rule, added to the rule as part of the general 1969 rule revision, deals only with an amendment which adds a new party against whom an already pleaded claim is asserted. The assertion of additional claims among those who are already parties to the action is governed by the first sentence of the rule. That sentence is divided into two independent clauses. The first is a definitive and self-executing provision for relation back of those amendments stating claims which "arose out of the conduct, transaction or occurrence" set forth in the original pleading. The second clause permits, but does not compel, the court to allow, on terms, those amendments which state a "new or different claim." We thus construe the sentence in its entirety to address relation back in two separate contexts. The first is germane claims and the second is new and different claims.
As we read the rule, the difference between germane claims and different claims is not in their eligibility for the relation-back consequence. Clearly, if new and different claims were not intended to have a relation-back potential at all, there would have been no reason for referring to them in this rule since the general amendment provision of R. 4:9-1 would have sufficed. In our view, therefore, the separate reference in the rule to germane claims and different claims is intended to define the right of the moving party to the benefit of relation back. If the permitted amendment asserts a germane claim, it is entitled to relation back. See Harr v. Allstate Insurance Co., 54 N.J. 287 (1969). If it states a new and different claim,
relation back is a matter within the court's discretion to be exercised as individual circumstances dictate. It is for that reason that the "on terms" proviso is included in the new and different claim provision but not in the germane claim provision. See 2 Schnitzer & Wildstein, N.J. Rules Service, AIV-401 to 404 and 1961 Supplement thereto.
In classifying a claim as germane or different for purposes of R. 4:9-3, Harr v. Allstate Insurance Co., supra, 54 N.J. at 299-300, offers the following guideline consistent with the general principle of liberal construction of the rule:
When a period of limitation has expired, it is only a distinctly new or different claim or defense that is barred. Where the amendment constitutes the same matter more fully or differently laid, or the gist of the action or the basic subject of the controversy remains the same, it should be readily allowed and the doctrine of relation back applied. * * * It should make no difference whether the original pleading sounded in tort, ...