Dunn v. Progress Industries, Inc. , 153 Ariz. 62 ( 1986 )

FROEB, Judge, specially

concurring:

The majority holding is correct and in accordance with the two controlling cases on the subject. Stephens v. Textron, Inc., 127 Ariz. 227, 619 P.2d 736 (1980); Lawson v. Arnold, 137 Ariz. 304, 670 P.2d 409 (App.1983).

I concur specially only to call attention to rules 15 and 17, Arizona Rules of Civil Procedure, and to suggest that application of one or both of these rules might have affected the outcome of both Lawson and Stephens had they been considered in those cases.

Dunn should have been able to maintain his cause of action against Progress through the application of rules 15(a), 15(c), and 17(c), Arizona Rules of Civil Procedure. Pursuant to rule 15(a), Dunn should have been allowed to amend his complaint to indicate that he had become the real party in interest after obtaining a reassignment of the claim. The amendment of Dunn’s complaint would have related back to the date of the original complaint under rule 15(c), thereby defeating the asserted defense of the statute of limitations. Similarly, Dunn could have ratified his status as the real party in interest in accordance with rule 17(a), which has the same effect as if he had commenced the action in the name of the real party in interest. Thus, under either the rule allowing pleading amendments to relate back or the real party in interest rule, Dunn could maintain his claim.

One faulty assumption made under both Stephens and Lawson is that the insurer had nothing to reassign to the plaintiff after the running of the two-year statute of limitations. The statute of limitations is not a jurisdictional bar to a cause of action. It is an affirmative defense that must be raised or it is waived. Rules 8(d), 12(i), Arizona Rules of Civil Procedure. It has no legal effect upon a cause of action until the court enters an order giving it judicial effect by dismissing the complaint. Until then, it is nothing more than an allegation in the defendant’s answer. Theoretically, a cause of action exists ad infinitum. Until the statute of limitations is ruled on by the court as a defense to the claim, the claim continues to exist in legal contemplation.

A.R.S. § 23-1023(B) specifically allows the reassignment of a claim from the insurer to the injured party, but the statute does not limit the time within which a reassignment may be made.

Progress argues that when Dunn filed his claim, he had no interest in it, and when he obtained the reassignment, the period of limitations had run. Asserting that Dunn did not have an interest in the claim when it was filed is tantamount to saying that Dunn was not the real party in interest. It is true that a suit cannot be maintained where the right of action does not exist in the plaintiff. Neil v. Chrisman, 26 Ariz. 566, 229 P. 92 (1924). Rule 17(a), Arizona Rules of Civil Procedure, states that, “Every action shall be prosecuted in the name of the real party in interest____” Although Dunn could not maintain his claim without being the real party in interest, when he became the real party in interest his claim could be maintained. Rule 17(a) allows for the ratification of the plaintiffs status as the real party in interest within a reasonable time.

Rule 17(a) is directly applicable to Dunn’s cause of action. His lack of ownership in the claim is cured when he obtains the reassignment. As we held in Hugh Kelly Enterprises, Inc. v. Ferry-Morse Seed Co., 118 Ariz. 392, 577 P.2d 1 (App.1978), assignment of the cause of action ratified the real party in interest’s claim. Even though the plaintiff in Hugh Kelly Enterprises did not own his claim when it was filed, the assignment gave his claim life. We held that the ratification related back to the filing date of the original complaint by the operation of rule 17(a). In view of this, the asserted bar of the statute of limitations would be unavailing against Dunn’s claim.

In addition to relief available under rule 17(a), the claim could also succeed through the application of rules 15(a) and 15(c). Rule 15(a) permits a party to amend his complaint within specific time periods or by leave of court. The rule adds that, “Leave to amend shall be freely given when justice requires.” The complaint could have been amended to indicate that the plaintiff obtained a reassignment of the claim on March 12, 1985.

Rule 15(c) requires that an amendment arise from the same “conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading____” The rule would apply in this situation. For example, in a wrongful death action filed by the improper party before the statute of limitations had run, this court allowed the proper party to file an amendment to the complaint after the statutory period that related back to the original pleading. Watts v. State, 115 Ariz. 545, 566 P.2d 693 (App.1977). The rationale of Watts is that the defendant had notice of the exact nature of the claim within the limitations period. See also 3 J. Moore, Federal Practice para. 15.15[2], at 15-144 to -145 (2d ed. 1985) (substitution of parties should be allowed if a new cause of action is not stated by the amendment); 6 C. Wright & A. Miller, Federal Practice & Procedure § 1501, at 526-27 (1971) (relation back of amendments should be permitted when defendant has “adequate notice of the conduct, transaction, or occurrence upon which plaintiff bases his claim ...”).

In the present case, the amendment to the complaint would relate to the same conduct, transaction, or occurrence that the original complaint set forth. The claim concerns the same subject matter and the same defendant. The only difference would be Dunn’s restored interest in the claim. The statute of limitations does not defeat the claim at this point because it has no legal effect as a defense until it is ruled upon by the trial court and results in an order barring the plaintiff’s cause of action.

In sum, while Dunn’s claim is correctly dismissed by reason of the application of Stephens and Lawson, those decisions apparently did not consider the application of rules 17(a), 15(a), and 15(c). Through the application of these rules, a plaintiff’s claim becomes viable when he ratifies his status as the real party in interest. The claim relates back to the filing date of his original complaint, thereby precluding the defense of the statute of limitations.