Shleifer v. Bridgestone-Firestone, Inc.

477 S.E.2d 405, 223 Ga. App. 256, 96 Fulton County D. Rep. 3777, 1996 Ga. App. LEXIS 1129
CourtCourt of Appeals of Georgia
DecidedOctober 17, 1996
DocketA96A1330
StatusPublished

This text of 477 S.E.2d 405 (Shleifer v. Bridgestone-Firestone, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shleifer v. Bridgestone-Firestone, Inc., 477 S.E.2d 405, 223 Ga. App. 256, 96 Fulton County D. Rep. 3777, 1996 Ga. App. LEXIS 1129 (Ga. Ct. App. 1996).

Opinion

Beasley, Chief Judge.

The Shleifers appeal from the dismissal of their amended third-party complaint against Bridgestone-Firestone (“Firestone”).

Detwiler sued the Shleifers for injuries caused by a collision in which David Shleifer was driving. A Firestone service store had performed brake work on the Shleifers’ car, and David had retrieved it shortly before the incident. The Shleifers alleged that brake failure was the cause due to Firestone’s negligence, in a third-party complaint against Firestone seeking indemnity and contribution. By amendment they included a claim against Firestone for physical damage to their own car.

The amended third-party complaint was dismissed on Firestone’s motion for failure to state a claim upon which relief can be granted. See OCGA § 9-11-12 (b) (6). Firestone contends the Shleifers cannot join the claim that does not affect Detwiler (damage to the Shleifers’ car) in an action in which Firestone has been made a party because of its actions that did affect Detwiler (i.e., alleged negligent brake work). It does not dispute that initial impleader was proper under theories of indemnity and contribution. See OCGA § 9-11-14 (a). Having been brought into the suit, the plain language of the statute concerning joinder of claims indicates that the claim may be added: “A party asserting a claim to relief as . . . [a] third-party claim may join, [as independent claims], as many claims, legal or equitable, as he has against an opposing party.” OCGA § 9-11-18 (a).

Despite this language, Firestone urges the Shleifers can present only those claims which would be a proper basis for impleader under OCGA § 9-11-14 (a). That a third-party claimant can join independent claims is “a general rule.” Huff v. Valentine, 217 Ga. App. 310, 311-312 (2) (457 SE2d 249) (1995). “However, ‘a claim properly joined as a matter of pleading need not be tried together with other claims, “if fairness or conveniencejustifi.es separate treatment.” ’ [Cit.]” Id. at 312 (2). See OCGA § 9-11-42 (b). Whether a joined claim is tried with other claims does not affect the propriety of pleading.

Firestone cites Michaels v. Kessler, 191 Ga. App. 103 (381 SE2d [257]*257103) (1989), as authority for the position that the “decision of the trial court” must be affirmed if the court did not abuse its discretion. First, Michaels upheld the court’s broad discretion to sever trial of claims under OCGA § 9-11-42 (b). Id. at 103 (1). It did not state the court had discretion to dismiss proper claims in the first instance, or to reject joinder of claims under OCGA § 9-11-18 (a). It did not address joinder at all, finding that the cross-complaint presented no claim of secondary liability, and impleader under OCGA § 9-11-14 (a) was not proper in any instance. Id. at 103-104. This case presents a different picture. Firestone does not dispute that relief is being sought on secondary liability. Compare Lupton v. The Landings Co., 204 Ga. App. 651, 652 (420 SE2d 346) (1992); Hennessy Cadillac v. Pippin, 197 Ga. App. 448, 449-450 (398 SE2d 725) (1990). Firestone cites no authority for the proposition that joinder under OCGA § 9-11-18 (a) is discretionary, and we find none.

Nor is this a question of whether the court can, in its discretion, deny leave to implead more than ten days after a defendant makes his answer. See OCGA § 9-11-14 (a). Compare Cherokee Nat. Life Ins. Co. v. Coastal Bank of Ga., 239 Ga. 800, 801-802 (1) (238 SE2d 866) (1977), which Firestone cites.

Second, our review of “the decision of the trial court” concerns whether the amended complaint states a claim upon which relief can be granted. The motion under OCGA § 9-11-12 (b) (6) “ ‘is not to be granted unless under the pleadings, construed in a light most favorable to the plaintiff, plaintiff can establish no set of facts that would entitle it to relief against the defendant. (Cits.)’ [Cit.]” Ga. North Contracting v. Haney & Haney Constr. &c., 204 Ga. App. 366, 368 (1) (b) (419 SE2d 348) (1992).

If the Shleifers’ direct claims against Firestone cannot properly be joined under OCGA § 9-11-18 (a), dismissal under OCGA § 9-11-12 (b) (6) would be appropriate. But not only do OCGA § 9-11-18 (a) and Huff, supra, state joinder is appropriate, other case law agrees. In Cohen v. McLaughlin, 250 Ga. 661 (301 SE2d 37) (1983), the third-party complaint under OCGA § 9-11-14 (a) alleged both direct and secondary claims. The underlying suit was then settled and dismissed, and the trial court dismissed the third-party complaint which then had only direct claims remaining. The Supreme Court reversed, recognizing that when impleader is proper under OCGA § 9-11-14 (a), joinder under OCGA § 9-11-18 (a) permits the direct claims. They are properly before the court, and jurisdiction of them is not dependent upon continuation of the original suit. The court noted that OCGA § 9-11-18 (a) clearly provides for such joinder and joinder of the additional claims did not necessarily mean all claims need be tried together. Cohen, supra at 662-663 (2); accord Huff, supra; see OCGA § 9-11-42 (b).

[258]*258The court may sever trial of the direct claims from the secondary claims, if appropriate. See Cohen, supra; Huff, supra. It may not dismiss the amended complaint merely because it contains properly joined issues that the court would prefer severed.

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Related

Hennessy Cadillac v. Pippin
398 S.E.2d 725 (Court of Appeals of Georgia, 1990)
Munday v. State Farm Fire & Casualty Co.
323 S.E.2d 193 (Court of Appeals of Georgia, 1984)
Thigpen v. Koch
190 S.E.2d 117 (Court of Appeals of Georgia, 1972)
Cohen v. McLaughlin
301 S.E.2d 37 (Supreme Court of Georgia, 1983)
Michaels v. Kessler
381 S.E.2d 103 (Court of Appeals of Georgia, 1989)
Huff v. Valentine
457 S.E.2d 249 (Court of Appeals of Georgia, 1995)
Cherokee National Life Insurance v. Coastal Bank
238 S.E.2d 866 (Supreme Court of Georgia, 1977)
Lupton v. Landings Co.
420 S.E.2d 346 (Court of Appeals of Georgia, 1992)
Chives v. State
449 S.E.2d 152 (Court of Appeals of Georgia, 1994)

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Bluebook (online)
477 S.E.2d 405, 223 Ga. App. 256, 96 Fulton County D. Rep. 3777, 1996 Ga. App. LEXIS 1129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shleifer-v-bridgestone-firestone-inc-gactapp-1996.