dissenting.
I would make today’s ruling prospective. By its 1992 amendment of N.J.S.A. 2A:14-22, the Legislature has clarified that tolling does not occur in the case of nonresident defendants unless long-arm service cannot be effectuated. L.1991, c. 387. The Court (seeming to think that that law is a break with the past) declines to make the statute retroactive. Instead, it reasons that our 1983 decision in Coons v. American Honda Motor Co., 94 N.J. 307, 463 A.2d 921 (1983) (Coons I), modified, 96 N.J. 419, 476 A.2d 763 (1984) (Coons II), cert. denied, 469 U.S. 1123, 105 S.Ct. 808, 83 L.Ed.2d 800 (1985), and other developments foreshadowed today’s ruling that the tolling statute was unconstitutional with respect to individuals as well as corporations.
I would have interpreted the prior tolling statute (as the Legislature has since done) consistent with constitutional mandate to hold that it did not operate unless long-arm service could not be effectuated. That, however, would have required an overruling of Lemke v. Bailey, 41 N.J. 295, 196 A.2d 523 (1963). There is little profit in debating which is the clean break with the past. The majority believes that attorneys should have foreseen today’s developments and thus reasons that the proper “remedy” is a malpractice action against attorneys, such as Crespo’s earlier attorney, Piermont. Ante at 372, 608 A2d at 252. I disagree. In the recent invalidation of N.J.S.A 2A:14-22 as applied to corporations, DiFalco v. Subaru of America, Inc., 244 N.J.Super. 530, 536, 582 A.2d 1284 (1990), the Appellate Division made its ruling prospective from the *375date of a controlling ruling of the Supreme Court in Bendix Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888, 108 S.Ct. 2218, 100 L.Ed.2d 896 (1988). DiFalco invalidated a 1984 legislative response to Coons I that had allowed foreign corporations (in order to avoid tolling) to designate a representative to accept service of process. Not until 1992 did the Legislature ever address the issue of tolling with respect to individual defendants. Not until then does it appear that the Legislature reasoned that Coons I and Bendix had invalidated all of the tolling provisions of N.J.S.A. 2A:14-22.
Hence, I believe that the majority is unnecessarily creating a very cumbersome process on remand. To dispose of the case in this way seems unproductive to me. There must be a trial within a trial — first to determine whether Piermont’s conduct amounts to professional malpractice (after all, had Coons I so clearly invalidated all of N.J.S.A. 2A:14-22, the Legislature would not have taken nine years to reach the same conclusion), and then, within that trial, the jury must decide whether, if that attorney had not been negligent, Crespo would have prevailed against the manufacturer of the machine. Four sets of experts, then, will be needed where two would have sufficed, and there will, in essence, be two law suits where one would have sufficed.
One of our goals should be to simplify the legal process whenever possible. I do not think that we do that here. Most recently, in Green v. Auerbach Chevrolet Corp., 127 N.J. 591, 606 A.2d 1093 (1992), we declined to apply retroactively our decision on a tolling statute because we said that the “interests of justice will be better served by prospective application of our decision.” Id. at 364, 608 A.2d at 248 (citing Accountemps v. Birch Tree Group, 115 N.J. 614, 628, 560 A.2d 663 (1989)). A malpractice suit against the attorney in that case would have provided the same “remedy” that the majority offers here. Instead, we chose the more equitable disposition of the matter. The equities in this case, as well, favor the prospective application of today’s decision.
*376For affirmance — Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, GARIBALDI and STEIN — 6. For reversal — Justice O’HERN — 1.