Thigpen v. Koch

190 S.E.2d 117, 126 Ga. App. 182, 1972 Ga. App. LEXIS 1095

• Court: Court of Appeals of Georgia
• Decided: April 6, 1972
• Docket: 46769
• Status: Published

Opinions

Eberhardt, Presiding Judge.

The. thrust of plaintiff’s objection to the third-party complaint is that paragraph six thereof denies negligence on the part of third-party plaintiffs and seeks to lay the blame for. the collision on the combined negligence of plaintiff, the other two original defendants, and third-party defendant. But the same paragraph also alleges: "However, should the jury find that the third-party plaintiffs were negligent, the'third-party defendant was also negligent and is liable over to the third-party plaintiffs in contribution.” Judgment is demanded in the third-party complaint against the third-party defendant for contribution. In these circumstances, where the motion to dismiss goes to the entire pleading, and the alternative motion to strike goes to the entire paragraph 6, the m'otion was properly overruled since the entire matter attacked by the motion does not seek merely to tender the plaintiff a substitute defendant. See Koppers Co. v. Parks, 120 Ga. (171 SE2d 639); Watson v. Hamil, 122 Ga. App. 120 (176 SE2d 276). Hence, since the 1966 amendment to Code § 105-2012, the present third-party complaint for contribution is maintainable. Compare Vaughn v. Guenther, 8 F. R. D. 157 (D. C. Ga.) with Code §105-2012 (1).

However, the. third-party complaint, apparently in conjunction with the Kochs’ counterclaim and cross claims, also purports to seek from third-party defendant direct damages sustained by the Kochs. CPA § 14, of course, provides only for service of a third-party complaint against one "who is or may be liable to [third-party plaintiff] for all or part of the plaintiff’s claim against him.” It is a "liable over” provision and does not authorize a defendant'to seek affirmative and independent relief solely on his own behalf from one not a party to the action. See, e.g., Southern R. Co. v. Insurance Co. of North America, 228 Ga. 23, 31 (183 SE2d 912); Mathews v. McConnell, 124 Ga. App. 519 (184 SE2d 491). But, the plaintiff has made no attack on this portion of the third-party complaint, and for this reason no error is shown in the trial court’s refusal to dismiss it.

Whether or not a defendant, as a third-party plaintiff, or an original plaintiff, who becomes a defending party when a counterclaim is asserted against him, may ever implead his insurance company or, if so, under what circumstances (see 3 Moore’s Fed. Practice 575, §14.12; 6 Wright & Miller, Federal Practice & Procedure, § 1449), CPA § 14 is not designed to authorize a plaintiff against whom a counterclaim has been filed to implead the defendant-counterclaimant’s insurance company. Even if a defendant (or a plaintiff against whom a counterclaim has been filed) should ever be allowed to implead his insurance company, "At the outset it should be noted that the question of impleading an insurer can arise only in that limited class of cases in which the insurer has disclaimed liability and refused to defend on behalf of the insured. If the insurer actually is conducting the defense, it is hardly likely to seek to implead itself and any attempt by the insured to implead an insurer who has not disclaimed liability clearly would be a breach of the 'cooperation’ clause of the insurance policy.” 6 Wright & Miller, Federal Practice & Procedure, § 1,449, p. 267. Accord: Green v. Shepherd Constr. Co., 46 F. R. D. 434 (D.C. Ga.); Knapp v. Hankins, 106. FSupp. 43 (D.C. Ill.); 3 Moore’s Federal Practice § 14.12; Proceedings of Cleveland Institute on Federal Rules (Am. Bar Assn., 1938) 250-254. Moreover, even if impleading of one’s own insurer were otherwise permissible, the court should deny it where impleader would not avoid circuity of action, or where it would raise problems not germane to the main action, or where the insured has not been put in a precarious situation, by a failure of the insurer to defend, or where there is a risk of prejudice if the jury learns that the impleading party is insured. Green v. Shepherd Constr. Co., 46 F. R. D. 434 (D.C. Ga.), supra; Gipson v. Shelley, 219 FSupp. 915 (D.C. Tenn.); American Zinc Co. v. H. H. Hall Constr. Co., 21 F. R. D. 190 (D.C. Ill.); Ballard v. Southern Cotton Oil Co., 145 FSupp. 886 (D.C. S.C.); Kromback v. Killian, 215 App. Div. 19 (213 NYS 138); Jacobs v. Pellegrino, 154 Misc. 651 (277 NYS 654).

In the instant case it does not appear that the Kochs’ insurer has disclaimed liability to them and refused to defend, nor does it appear whether impleading this insurer would avoid circuity of action, confuse the issues, etc. Under these circumstances it is clear that not even the Kochs, original defendants, would be allowed to implead the insurer on the basis that it was liable over to them, and they have not sought to do so.

It must be recognized that CPA § 14 (b) places a plaintiff against whom a counterclaim has been filed in the same position as a defendant under CPA §14 (a). Under these circumstances plaintiff, as a defending party Under a counterclaim, must show that the third-party defendant which he seeks to bring in will be liable over to him, not to the counterclaiming defendant or to other parties. See 3 Moore’s Federal Practice § 14.30, note 1. "[Rule 14 (b)] must be read in conjunction with Rule 14 (a), which describes the circumstances under which a defending party may implead a third-party defendant. Plaintiff is subject to the same principles that govern the assertion of a third-party claim by defendant—his motion to implead must be timely, the presence of the claim must not prejudice any other party to the action, it should not delay or complicate the trial unduly, the third-party claim must be based on evidence similar to that underlying the counterclaim against plaintiff, it must meet jurisdiction and venue qualifications, and whether the third-party claim is retained is always subject to the court’s discretion. As is true under Rule 14 (a), plaintiff must show that the third party is or may be liable to him for all or part of defendant’s claim; it is not sufficient that the third-party defendant is or may be liable to other parties to the action.” 6 Wright & Miller, Federal Practice & Procedure § 1464, pp. 335-336. (Emphasis supplied).

In the instant case plaintiff’s "Motion for leave to add as an additional third-party deféndant the State Farm Mutual Automobile Insurance Company” alleges as grounds therefor that in the event plaintiff recovers of the original defendants Koch, State Farm, as the Kochs’ carrier, would be liable over to them (and not to plaintiff) to the extent of the applicable coverage. Hence the motion to add State Farm as an additional third-party defendant was properly denied.

Judgment affirmed.

Bell, C. J., Hall, P. J., Pannell, Deen, Quillian and Clark, JJ., concur. Evans, J., dissents. Stolz, J., not participating.