OPINION
SCHWARTZ, District Judge.
This is an automobile negligence action, based on diversity jurisdiction, in which plaintiff Marc Garr seeks damages for injuries resulting from a collision between his car and a tractor-trailer driven by defendant John O. Clayville. Presently before the Court are two motions, one by plaintiff Garr seeking to amend his complaint, and the other by the Home Indemnity Company, plaintiff’s automobile insurer, seeking to intervene as a plaintiff. The motions arise from the background detailed below.
The accident occurred in Delaware on August 2, 1973. Plaintiff’s complaint was filed on January 22, 1975 — well within the two year statute of limitations established for personal injury actions by 10 Del.C. § 8119. On February 28,1975, within twenty days of filing his answer, the defendant amended it to challenge by way of affirmative defense a portion of plaintiff’s complaint which sought recovery of certain medical expenses allegedly incurred as a consequence of his injuries. Subsequently, on May 13, 1975, still within the statute of limitations, Garr and Clayville filed a stipulation amending the complaint to delete all claims “for special damages recoverable by the plaintiff from his own insurer pursuant to 21 Del.C. § 2118. . . .” Somewhat inexplicably, the insurer, The Home Indemnity Company, did not attempt to participate in the case until three months after the statute of limitations expired, when it filed a pleading styled “Motion to Intervene.” Defendant promptly notified the Court that he opposed Home Indemnity’s motion on the grounds that it was barred by Delaware’s two year statute of limitation.
In support of Home Indemnity’s intervention motion pursuant to Fed.R.Civ.P. 24, Home Indemnity’s attorney, who also represents the plaintiff, has conceded that the facts of this case are most apposite to those generally arising in a Fed.R.Civ.P. 15 context and has asked the Court to treat the motion, in the alternative, as an attempt by plaintiff Garr to amend his complaint pursuant to Rule 15. The defendant in his letter-memorandum opposes the insurer’s Rule 24 motion and has further argued against any amendment by plaintiff pursuant to Rule 15. No discussion of the parties’ contentions under Rule 24 will be necessary in light of the Court’s treatment of the matter under Rule 15 as a motion to amend the complaint to add Home Indemnity, his subrogated insurer, as a plaintiff.
[555]*555Delaware’s mandatory “no-fault” automobile insurance statute, 21 Del.C. § 2118, can readily be pinpointed as the source of the apparent confusion which has placed this case in its present procedural posture. The practical effect of that statute is to prohibit insured plaintiffs from attempting to recover compensation for medical expenses or lost earnings from alleged tort-feasors in automobile negligence actions. 21 Del.C. § 2118(a)(2), (g). Instead, the statute mandates that the proper plaintiffs for such damages are insurers such as Home Indemnity who are “subrogated to the rights ... of the person for whom benefits are provided . . . ” under 21 Del.C. § 2118(f). The existence of this statutory scheme explains the acquiescence of plaintiff Garr to the defendant’s affirmative defense challenging his right to assert a claim for special damages, and undoubtedly underlies the present attempt to amend the complaint to reflect Home Indemnity’s subrogated claim for such damages.
The injunction of Rule 15 that leave to amend “shall be freely given when justice so requires” is recognized. However, the present question involves something more than a pro forma amendment meriting reflexive approval by the Court. Here, Garr and Home Indemnity are seeking to amend Garr’s complaint to add Home Indemnity as a plaintiff and avoid Delaware’s applicable two year bar through use of Rule 15(c)’s provisions for “Relation Back of Amendments.”1 Whether they may be permitted to do so is a question of federal practice governed solely by federal law. Loudenslager v. Teeple, 466 F.2d 249, 250 (3d Cir. 1972); Yorden v. Flaste, 374 F.Supp. 516, 520 n.17 (D.Del.1974); 3 J. Moore, Federal Practice ¶ 15.02[3], 15.15[2].
Addition of a party plaintiff does not prevent relation back. While the literal terms of the Rule speak of relation back of amendments adding new defendants, it is generally construed as sanctioning the addition of plaintiffs in analogous circumstances.2 Yorden v. Flaste, supra at 519-520; [556]*556Fashion Novelty Corp. v. Cocker Mach. & Fdry. Co., 331 F.Supp. 960, 964-65 (D.N.J. 1971); 3 J. Moore, Federal Practice ¶ 15.-15[4.-2] at 1051-1052; Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv.L.Rev. 356, 410-11 (1967). See also Francis v. Pan American Trinidad Oil Co., 392 F.Supp. 1252, 1258 and n.11 (D.Del.1975).
The controlling criteria in determining whether to allow an amendment seeking to add a party plaintiff and relate back under Rule 15(c) to the date of the original complaint to avoid the statute of limitations are: 1) Whether the defendant has received adequate notice of the claim of the additional plaintiff, 2) whether the relation back of such an amendment would unfairly prejudice the defendant in defending against the additional plaintiff and 3) whether there is an identity of interest between the original plaintiff and the proposed additional plaintiff. See generally 12 ALR Fed. 233—Pleading—Amendment—Relation Back.
A. Adequate Notice and Prejudice
A key factor is notice — if the adverse party has had sufficient notice of the disputed occurrence and the related institution of legal action so as to obviate any prejudice which might arise from the assertion of the new plaintiff’s claim, then the amendment may be allowed.3 In the instant matter, the original complaint actually asserted, inter alia, those elements of damages now sought by Home Indemnity. Under that circumstance and with no hint that defendant suffered any prejudice by reason of the six month interval during which special damages payable by Home Indemnity to plaintiff were not asserted against defendant, it is concluded defendant had adequate notice and would suffer no prejudice if the amendment related back.
B. Identity of Interest
Addition of a plaintiff is permissible where the plaintiff sought to be added is closely identified with the original plaintiff and seeks to assert a claim so close to that of the original plaintiff, that it is clear no prejudice arises even if technically a new cause of action is being asserted. Thus, courts have found no prejudice and, as a consequence, permitted amendments changing or adding plaintiffs in several types of cases in which the old and new plaintiffs shared closely aligned interests.4
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
SCHWARTZ, District Judge.
This is an automobile negligence action, based on diversity jurisdiction, in which plaintiff Marc Garr seeks damages for injuries resulting from a collision between his car and a tractor-trailer driven by defendant John O. Clayville. Presently before the Court are two motions, one by plaintiff Garr seeking to amend his complaint, and the other by the Home Indemnity Company, plaintiff’s automobile insurer, seeking to intervene as a plaintiff. The motions arise from the background detailed below.
The accident occurred in Delaware on August 2, 1973. Plaintiff’s complaint was filed on January 22, 1975 — well within the two year statute of limitations established for personal injury actions by 10 Del.C. § 8119. On February 28,1975, within twenty days of filing his answer, the defendant amended it to challenge by way of affirmative defense a portion of plaintiff’s complaint which sought recovery of certain medical expenses allegedly incurred as a consequence of his injuries. Subsequently, on May 13, 1975, still within the statute of limitations, Garr and Clayville filed a stipulation amending the complaint to delete all claims “for special damages recoverable by the plaintiff from his own insurer pursuant to 21 Del.C. § 2118. . . .” Somewhat inexplicably, the insurer, The Home Indemnity Company, did not attempt to participate in the case until three months after the statute of limitations expired, when it filed a pleading styled “Motion to Intervene.” Defendant promptly notified the Court that he opposed Home Indemnity’s motion on the grounds that it was barred by Delaware’s two year statute of limitation.
In support of Home Indemnity’s intervention motion pursuant to Fed.R.Civ.P. 24, Home Indemnity’s attorney, who also represents the plaintiff, has conceded that the facts of this case are most apposite to those generally arising in a Fed.R.Civ.P. 15 context and has asked the Court to treat the motion, in the alternative, as an attempt by plaintiff Garr to amend his complaint pursuant to Rule 15. The defendant in his letter-memorandum opposes the insurer’s Rule 24 motion and has further argued against any amendment by plaintiff pursuant to Rule 15. No discussion of the parties’ contentions under Rule 24 will be necessary in light of the Court’s treatment of the matter under Rule 15 as a motion to amend the complaint to add Home Indemnity, his subrogated insurer, as a plaintiff.
[555]*555Delaware’s mandatory “no-fault” automobile insurance statute, 21 Del.C. § 2118, can readily be pinpointed as the source of the apparent confusion which has placed this case in its present procedural posture. The practical effect of that statute is to prohibit insured plaintiffs from attempting to recover compensation for medical expenses or lost earnings from alleged tort-feasors in automobile negligence actions. 21 Del.C. § 2118(a)(2), (g). Instead, the statute mandates that the proper plaintiffs for such damages are insurers such as Home Indemnity who are “subrogated to the rights ... of the person for whom benefits are provided . . . ” under 21 Del.C. § 2118(f). The existence of this statutory scheme explains the acquiescence of plaintiff Garr to the defendant’s affirmative defense challenging his right to assert a claim for special damages, and undoubtedly underlies the present attempt to amend the complaint to reflect Home Indemnity’s subrogated claim for such damages.
The injunction of Rule 15 that leave to amend “shall be freely given when justice so requires” is recognized. However, the present question involves something more than a pro forma amendment meriting reflexive approval by the Court. Here, Garr and Home Indemnity are seeking to amend Garr’s complaint to add Home Indemnity as a plaintiff and avoid Delaware’s applicable two year bar through use of Rule 15(c)’s provisions for “Relation Back of Amendments.”1 Whether they may be permitted to do so is a question of federal practice governed solely by federal law. Loudenslager v. Teeple, 466 F.2d 249, 250 (3d Cir. 1972); Yorden v. Flaste, 374 F.Supp. 516, 520 n.17 (D.Del.1974); 3 J. Moore, Federal Practice ¶ 15.02[3], 15.15[2].
Addition of a party plaintiff does not prevent relation back. While the literal terms of the Rule speak of relation back of amendments adding new defendants, it is generally construed as sanctioning the addition of plaintiffs in analogous circumstances.2 Yorden v. Flaste, supra at 519-520; [556]*556Fashion Novelty Corp. v. Cocker Mach. & Fdry. Co., 331 F.Supp. 960, 964-65 (D.N.J. 1971); 3 J. Moore, Federal Practice ¶ 15.-15[4.-2] at 1051-1052; Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv.L.Rev. 356, 410-11 (1967). See also Francis v. Pan American Trinidad Oil Co., 392 F.Supp. 1252, 1258 and n.11 (D.Del.1975).
The controlling criteria in determining whether to allow an amendment seeking to add a party plaintiff and relate back under Rule 15(c) to the date of the original complaint to avoid the statute of limitations are: 1) Whether the defendant has received adequate notice of the claim of the additional plaintiff, 2) whether the relation back of such an amendment would unfairly prejudice the defendant in defending against the additional plaintiff and 3) whether there is an identity of interest between the original plaintiff and the proposed additional plaintiff. See generally 12 ALR Fed. 233—Pleading—Amendment—Relation Back.
A. Adequate Notice and Prejudice
A key factor is notice — if the adverse party has had sufficient notice of the disputed occurrence and the related institution of legal action so as to obviate any prejudice which might arise from the assertion of the new plaintiff’s claim, then the amendment may be allowed.3 In the instant matter, the original complaint actually asserted, inter alia, those elements of damages now sought by Home Indemnity. Under that circumstance and with no hint that defendant suffered any prejudice by reason of the six month interval during which special damages payable by Home Indemnity to plaintiff were not asserted against defendant, it is concluded defendant had adequate notice and would suffer no prejudice if the amendment related back.
B. Identity of Interest
Addition of a plaintiff is permissible where the plaintiff sought to be added is closely identified with the original plaintiff and seeks to assert a claim so close to that of the original plaintiff, that it is clear no prejudice arises even if technically a new cause of action is being asserted. Thus, courts have found no prejudice and, as a consequence, permitted amendments changing or adding plaintiffs in several types of cases in which the old and new plaintiffs shared closely aligned interests.4
Situations involving subrogor-subrogee relationships including ones where the sub-rogee could have been described as a “real party in interest” pursuant to Rule 175 [557]*557have been among those in which courts have approved Rule 15(c) amendments adding plaintiffs.6
The defendant strenuously objects to plaintiff’s attempts to apply the above operative principles to the present situation. He argues that they have no bearing on the instant case where the insurer is “an entirely new party, with a separate claim from the plaintiff, not subrogated to the plaintiff’s rights, under Delaware’s ‘No Fault’ law.” This attempt to find support in the Delaware statute for an asserted distinction under Rule 15 between the insurer and the insured has some superficial appeal, but it misconstrues the realities of the Delaware no fault statute and ignores the practical spirit behind the controlling federal rules. Contrary to defendant’s assertion, the Delaware statute specifically mandates that insurers “shall be subrogated to the rights” of their insureds. 21 Del.C. § 2118(f). That this is a subrogation by statute rather than by explicit contract does not alter its essential character as a mechanism of succession or substitution. Moreover, the nature of the statute as a subrogation is not undercut by the legislature’s decision in 21 Del.C. § 2118(g) to prohibit anyone but the subro-gee from suing for recovery of special damages.
The few Delaware cases which have discussed this relatively new statute tend to disprove the defendant’s contentions that the statute provides evidence of a disassociation of such magnitude between the insurer and the insured so as to preclude applieation of Fed.R.Civ.P. 15. In DeVincentis v. Maryland Casualty Co., 325 A.2d 610 (Del. Super.1974), there was an objection to a consolidated trial on the issues of general damages recoverable by the insured and special damages recoverable only by the insurer. The court overruled the objection in an opinion which relied in part on the legislative purpose behind the no fault statute:
“Since the law provided that the injured party could collect for medical expenses, lost earnings and property damage from his insurer, he was precluded from suing the tortfeasor for these items of damage or from putting in evidence concerning them. Correspondingly, the law specifically provides that the insurer who has paid special damages would be subrogated to the insured’s right to recover against the tortfeasor. 21 Del.C. § 2118(f). To the extent that this involves separate recoveries, the law has split the cause of action, as it was viewed at common law. Compare Catalfano v. Higgins, Del.Supr., 188 A.2d 357 (1962). However, the so-called splitting of causes of action was an incidental result and not an objective of the no-fault insurance law.” 325 A.2d at 612 (emphasis supplied).
Murray v. James, 326 A.2d 122 (Del.Super. 1974), builds upon the DeVincentis interpretation of the statute and, in addition, sheds doubt on defendant Clayville’s present contention that the principle of real party in interest has no application to the relation[558]*558ship between Garr and Home Indemnity under the Delaware no fault insurance statute. In Murray, a question arose as to whether the subrogated insurer could proceed in its own name in bringing an action for special damages. The court’s comments are instructive in that they reveal an implicit assumption that the claims of the insurer and insured are not so mutually foreign as to make real party in interest concepts totally inapplicable to a discussion of their relationship:
“The modern view, which is embodied in Rule 17(a) of the Civil Rules, Del.C. Ann., of this Court is that actions should be brought in the name of the real party in interest. Prior to adoption of the no-fault insurance law, subrogated tort claims where the real party in interest was an insurance company were treated as an exception to this rule because of the policy that the existence of insurance should not be revealed to the jury, [citations omitted] The decision in DeVincentis concluded that this is no longer a persuasive consideration. Accordingly, I find that the requirements of Rule 17(a) apply, and, therefore, the subrogated insurer may proceed in its own name.” 326 A .2d at 123.7
While this Court’s interpretation of Delaware law is neither binding "upon Delaware nor dispositive of the question of federal law which now confronts the Court, a review of the relevant Delaware statute and cases does provide useful input concerning the relationship of the insurer and the insured for purposes of Federal Rule 15. Here, the relationship between Garr and Home Indemnity, his subrogated insurer is clearly close. Their respective claims arise out of the same accident and, practically speaking, constitute subparts of the same cause of action. But for the special provisions of the Delaware statute, Garr would have pursued a claim for his special damages in tandem with the remainder of his suit. In fact, he attempted to do so, but was precluded by the defendant’s raising of the Delaware statute. Certainly, in this posture, on these facts, the defendant cannot assert any lack of notice, absence of factual knowledge, or other prejudice if the subrogated insurer, the proper plaintiff, is permitted to pursue its claim for special damages in Garr’s place. While it is true that Home Indemnity’s delay in picking up the traces of Garr’s claim was undesirably long, especially in light of its representation by plaintiff’s attorney, the amendment under Rule 15(c) should nevertheless not be denied in the absence of some identifiable prejudice.
Plaintiff will be given leave to amend his complaint to add Home Indemnity as a party plaintiff, said amendment to relate back to the date of the filing of Garr’s original complaint pursuant to Rule 15(c).
Present order on notice within 10 days.