concurring.
I concur in the Majority Opinion as written. There is, however, another reason here, equally valid, why the statute of limitations does not protect the partners in the Mayfair Diagnostic Laboratory against liability.
That reason is because service of summons on the Amended Complaint relates back to the date of the initial Complaint under the principle of “Relation Back of Amendments” stated in CR 15.03, which states as follows:
“(2) An amendment changing the party against whom a claim is asserted relates back if the condition of paragraph (1) is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (a) has received such notice of the institution of the action that he will not be prejudiced in maintaining his 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 him.”
The “condition of paragraph (1)” is satisfied when “the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” CR 15.03(1). This covers the present situation. Further, the fact that “the partpes] to be brought in by amendment ... ha[ve] received such notice of the institution of the action that [they] will not be prejudiced in maintaining [their] defense on the merits” (CR 15.03(2)) is not in controversy.
What is in controversy is the remaining requirement in CR 15.03(2) that “within the period provided by law for commencing the action against [them], the partpes] to be brought in by amendment ... knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against [them].” But, this condition has also been met beyond any argument to the contrary except for one that uses a superli-teral, hypertechnical construction of the phrase: “within the period provided by law for commencing the action against him, the party ... has received ... notice of the institution of the action.”
I recognize that our Court used just such hypertechnical interpretation of this phrase in Nolph v. Scott, Ky., 725 S.W.2d 860 (1987), with two Justices dissenting, and that in doing so we followed the lead of the United States Supreme Court in Schiavone v. Fortune a/k/a Times, Inc., 477 U.S. 21, 106 S.Ct. 2379, 90 L.Ed.2d 18 (1986). But the United States Supreme Court seems bent on destruction on long-standing, fundamental rules of construction that apply to construing the rules of civil procedure in an all-out effort to limit the size of the federal docket, and, this is hardly a persuasive reason for our Court to follow a similar course in Kentucky cases. We have recently firmly rejected just such a response as inappropriate in similar circumstances in Steelvest, Inc. v. Scansteel Service Ctr., Ky., 807 S.W.2d 476 (1991), refusing to follow the lead of the United States Supreme Court in amending the summary judgment rule by judicial fiat to accommodate docket control. We should do the same thing here.
The hypertechnical construction to which I refer is interpreting the phrase, “within the period provided by law for commencing the action against him,” as meaning the party must have actual notice that suit has been filed by the last day of the time period stated in the statute of limitations. This ignores the fact that an action is commenced under CR 3 when suit is filed and summons is issued in good faith, regardless of the subsequent date of service. The phrase “commencing the action” in CR 15.-*91703(2) refers, not just to the statute of limitations period, but, under CR 3, once the Complaint is filed within the period of limitations, and summons issued in good faith, includes also the period reasonably necessary to effect delivery of the summons.
Under the facts of this case, when Dr. James H. Callis, the Director of the Mayfair Diagnostic Laboratory, was served on June 4, 1986, he had notice of the action, and all of the partners in the Mayfair Diagnostic Laboratory also had notice of the filing of this action. The Complaint is served with the summons. Further, the record includes correspondence between appellants’ attorneys, the Mayfair Diagnostic Laboratory and Dr. Callis, as well as Dr. Edwin A. Hanekamp who was an unknown partner in this Laboratory and also delivered Francis Munday’s baby, overwhelming proof that the parties sued had notice of this claim from and after September 12, 1985, long before the statute of limitations was an issue. It would be grossly unjust in cases such as this to permit parties fully knowledgeable about the claim against them to stonewall the efforts to discuss settlement of the matter out of court, stand silent on the true nature of the legal entities involved, and then hide behind the statute of limitations. This is not an approach we should encourage by overreading CR 15.03(2).
In my dissent in Nolph v. Scott, supra, I refer to three well-reasoned United States Circuit Court “decisions with fact situations more in point than the Schiavone case,” which we should follow in applying the “community of interests” test to decide an issue of relation back in cases such as this, commenting:
“All of the above authorities would apply the rule of relation back of amendments provided in CR 15.03 to the present situation because there is such a community of interests between Dr. Nolph [the party named in the amended pleading] and the originally named defendants that it is patently unreasonable to insulate him from their notice of the lawsuit.
As stated in Travelers Indemnity Co. v. United States, the ‘purpose of the federal rules [is not] furthered by denying the addition of a party who has a close identity of interest with the old party when the added party will not be prejudiced. The ends of justice are not served when forfeiture of just claims because of technical rules is allowed.’ 382 F.2d at 106.” 725 S.W.2d at 863. Emphasis original.
Referring to these same authorities, Bertlesman and Philipps, Kentucky Practice, 4th ed., Civil Rule 15.03, p. 329, states:
“The difficulty can be solved in part at least by a liberal interpretation of this requirement. Thus, it has been held that the ‘period by law for the commencement of the action’ includes a reasonable time for the service of process. Under this interpretation the amendment substituting the newly named defendant relates back to the commencement of the action, if service on the newly named defendant would have been timely had he been correctly named in the first instance.... Under the interpretations the courts have given CR 3, such a reasonable time can be a period of several months, if the plaintiff’s attorney is diligent in attempting to effect proper service.”
Here the attorney was diligent. Service was effected in four days.
The stated purpose of the Civil Rules calls for their “interpretation [to] promote ends of justice,” and “to facilitate decisions on the merits, rather than determinations on technicalities.” Bertlesman and Phi-lipps, Kentucky Practice, supra, Rule 1, pp. 3-4. No purpose is served by permitting parties with full knowledge that a claim has been made against them to evade answering to that claim simply because the summons was not actually served until one day after the period stated in the statute of limitations.
COMBS, J., joins this concurring opinion.