Grand-Pierre v. Montgomery County

MOTZ, Judge. On June 29, 1989, an automobile owned and operated by appellant, Jerome C. Grand-Pierre, was struck by a Montgomery County vehicle. On June 11, 1992, Gerald Martin, who was a passenger in appellant’s car at the time of the accident, filed a complaint against Montgomery County in the circuit court. Alleging that as a passenger in the vehicle driven by Grand-Pierre he sustained injuries in the collision with the county vehicle, Martin requested a jury trial and ¹⁷² claimed damages in the amount of $250,000.

On July 6, 1992, sixteen days after the three year statute of limitations had expired (but before Martin’s Complaint had been answered by Montgomery County) Grand-Pierre filed a motion to intervene in the Martin case. This motion was accompanied by a proposed intervenor complaint seeking $200,000 in negligence damages, or a “larger amount if authorized by the Local Government Tort Claims Act.” Montgomery County filed an opposition to Grand-Pierre’s motion to intervene on the ground that the statute of limitations had expired. On August 27, 1992, a hearing was held in the Circuit Court for Montgomery County (Ruben, J.), at which Grand-Pierre’s motion to intervene was denied. On appeal, 1 Grand-Pierre raises a single issue: Whether, after a timely Complaint by a passenger in an automobile collision negligence case mentions the vehicle driver and potential intervenor by name, and where the defendant has otherwise received timely notice of the intervenor’s claim, a statute of limitations defense may correctly be interposed to both defeat a Rule 2-214 Motion to Intervene and Amended Complaint to the timely filing date of the original Complaint.

Grand-Pierre claims that the Maryland intervention and relation back rules must be interpreted according to precedents “under the modern Federal Rules of Civil Procedure,” which, he asserts, would clearly permit his intervention and allow relation back to the filing date of Martin’s complaint, and so circumvent the statute of limitations bar to his claim. Grand-Pierre is correct that the Maryland and federal intervention rules are similar. Compare Md.Rule 2-214 with Fed. R.Civ.P. 24. Moreover, the Court of Appeals has stated that ¹⁷³ in the absence of Maryland authority, the similarity in these rules makes the decisions of the federal courts interpreting the federal rule of considerable precedential value in construing the Maryland rule.

Maryland Radiological Soc’y, Inc. v. Health Servs. Cost Review Comm’n, 285 Md. 383 , 388 n. 5, 402 A.2d 907 (1979). See also Citizens Coord. Comm. v. TKU Assocs., 276 Md. 705, 712 , 351 A.2d 133 (1976) (federal cases interpreting federal rule continue to serve as a guide to interpretation of Md.Rule 2-214).

This is not, however, simply an intervention case. Rather, because the proposed amendment here would extend the statute of limitations beyond the statutory three year limit, this intervention is really an effort to seek to amend the complaint by adding a new plaintiff. Grand-Pierre fails to recognize that the Maryland and federal rules governing amendment, unlike the intervention rules, differ in a critical respect. The federal amendment rule, Fed.R.Civ.P. 15, provides in pertinent part: (c) Relation Back of Amendments.

An amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (2) 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, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. ¹⁷⁴ In contrast, the Maryland améndment rule, Md.Rule 2-341, contains no equivalent “relation back” provision. Thus, contrary to Grand Pierre’s argument, the cases interpreting the “modern” federal rule as to “relation back” are of little assistance in interpreting the Maryland rule, which contains no express provision for “relation back.” This is particularly so because in fact Md.Rule 2-341 was adopted more recently than the federal “relation back” rule. 2 Accordingly, the Maryland Rule is in fact more “modern” than the “modern” federal rule. Initially, although not directly on point, Walko Corp. v. Burger Chef Syst., Inc., 281 Md. 207 , 378 A.2d 1100 (1977), makes clear that the Court of Appeals does not favor a potential plaintiffs attempt to avoid the bar of the statute of limitations. In Walko, a federal court certified to the Court of Appeals the question of whether the statute of limitations was suspended during the pendency of a motion to intervene, which was ultimately denied because factually dissimilar from the original case.

In holding that the limitations period was not tolled during the pendency of the motion, 3 the Court discussed the fact that the intervenor, who had 11 days after the motion to intervene was denied and 60 days during its pendency to file a claim and did not do so, offered no explanation for his failure to file a separate but timely motion. Arguably, appellees were on notice of Walko’s claim once the motion to intervene was filed. As we have indicated, however, Walko’s approach to this case was hardly one of vigilance. The statute of limitations reflects a legislative judgment of what is deemed an adequate period of time in ¹⁷⁵ which “a person of ordinary diligence” should bring his action.

Id. at 215 , 378 A.2d 1100 , quoting Ferrucci v. Jack, 255 Md. 523, 526 , 258 A.2d 414 (1969). Grand-Pierre is, of course, correct that Walko is not controlling here. It is relevant, however, because in Walko the Court of Appeals found determinative the intervenor-plaintiff s diligence, rather than the prejudice that would result to the defendants. This dramatically undercuts Grand-Pierre’s similar argument that his intervention should be permitted because defendant, Montgomery County, was on notice of his claim from the original complaint filed by Martin (which mentions Grand-Pierre by name) and so would not be prejudiced by permitting relation back of his claim to the original complaint. 4 In Maryland, although amendments are generally freely permitted in order to promote the ends of justice, Ebert v. Ritchey, 54 Md.App. 388, 394, 458 A.2d 891 , cert. denied, 296 Md. 414 (1988), cert. denied, 467 U.S. 1210 , 104 S.Ct. 2399 , 81 L.Ed.2d 356 “[n]ot every amendment, even though allowable, is given retrospective effect, especially when giving it such effect will cause prejudice to or affect the substantive rights of other parties.” Gardner v. State, 77 Md.App. 237, 251 , 549 A.2d 1171 (1988). “[I]f an amendment sets forth a new cause of action, then limitations is measured from the time of the accrual of the cause to the date the amended declaration is filed, but if the amendment does not state a new cause of action, then limitations is determined with reference to the date of the original filing.” Myers v. Aragona, 21 Md.App. 45, 51 , 318 A.2d 263 , cert. denied, 272 Md. 746 (1974).

See also, Doughty v. Prettyman, 219 Md. 83, 88 , 148 A.2d 438 (1959); ¹⁷⁶ Cline v. Fountain Rock Lime and Brick, 214 Md. 251 , 134 A.2d 304 (1957). Merely changing the legal theory does not constitute a new and different cause of action for purposes of statute of limitations and relation back; material operative facts, not the legal theory, determine the cause of action. Priddy v. Jones, 81 Md.App. 164, 170 , 567 A.2d 154 (1989), cert. denied, 319 Md. 72 , 570 A.2d 864 (1990). The latter principle, however, applies to the amendment of a pleading between the original parties.

When amendment is sought to add a new party to the proceedings, that principle is inapplicable because any cause of action as to that party is, of course, a new cause of action. Thus, under Maryland law, absent misnomer, see, e.g., Western Union Tel. Co. of Baltimore City v. State ex rel Nelson, 82 Md. 293, 306-308 , 33 A. 763 (1896), relation back is not permitted when an amendment is sought to add a new defendant. Alexander v. Rose, 181