§ 25-331 — Third-party action; procedure

Nebraska § 25-331

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

(1)(a) A defending party may, as a third-party plaintiff, serve a summons and complaint on a nonparty:
(i) Who is or may be liable to the defending party for all or part of the claim against the defending party; or
(ii) Whose negligence was or may have been a proximate cause of the transaction or occurrence that is the subject matter of the plaintiff's claim and who is not precluded by section 25-21,185.11 from being made a party.
(b) The third-party plaintiff shall, by motion, obtain the court's leave if the third-party plaintiff files the third-party complaint more than fourteen days after serving its original answer.
(c) The person served with the summons and third-party complaint, hereinafter called the third-party defendant, has all the rights and obligations of a defendant, including those created by this section and by the rules promulgated by the Supreme Court pursuant to sections 25-801.01 and 25-1273.01 .
(d) The third-party defendant may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.
(e) The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.
(f) A defending party may assert against the third-party defendant a claim that the third-party defendant is liable to the defending party for all or part of the claim against the defending party.
(g) A third-party defendant may bring in a nonparty if subdivision (1)(a) of this section would allow a defending party to do so.
(h) Any party may move to strike the third-party claim, to sever it, or try it separately.
(2) When a claim is asserted against a plaintiff, the plaintiff may bring in a nonparty if subdivision (1)(a) of this section would allow a defending party to do so.

Legislative History

Source: Laws 1967, c. 144, § 1, p. 441; Laws 2002, LB 876, § 11; Laws 2023, LB157, § 3. Annotations: A motion to sever a third-party claim is addressed to the discretion of the trial court, and an order granting or denying such motion is reviewed by an appellate court for an abuse of discretion. Hradecky v. State, 264 Neb. 771, 652 N.W.2d 277 (2002). This section requires leave of the trial court before filing a third-party complaint, and whether to grant such leave is entrusted to the discretion of the trial court. A third-party claim under this section may be asserted when a third party's liability is in some way dependent upon the outcome of the main claim or when the third party is secondarily liable to the defendant. Denial of leave to join a third-party defendant is not a final, appealable order because it does not determine the action and prevent a judgment. The term "defendant" in section 25-21,185.10 includes a third-party defendant brought into an action pursuant to this section. Slaymaker v. Breyer, 258 Neb. 942, 607 N.W.2d 506 (2000). A third-party claim under this section may be asserted when a third party's liability is in some way dependent on the outcome of the main claim or when the third party is secondarily liable to the defendant. Dammann v. Litty, 234 Neb. 664, 452 N.W.2d 522 (1990). The granting of leave to file a third-party complaint under this section is within the discretion of the trial court. Employers Reins. Corp. v. Santee Pub. Sch. Dist. No. C-5, 231 Neb. 744, 438 N.W.2d 124 (1989). A third-party action should be dismissed if the evidence adduced at trial establishes that the third party could not be liable to the defendant for all or part of the plaintiff's claim against him. Life Investors Ins. Co. v. Citizens Nat. Bank of Wisner, 223 Neb. 663, 392 N.W.2d 771 (1986). At any time after the commencement of the action, a defendant, as a third-party plaintiff, may cause a summons to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. A third-party claim may be asserted only when the third party's liability is in some way dependent on the outcome of the main claim or when the third party is secondarily liable to defendant. AgriStor Credit Corp. v. Radtke, 218 Neb. 386, 356 N.W.2d 856 (1984). A third-party claim may be asserted under this section when a third party's liability is in some way dependent on the outcome of the main claim or when the third party is secondarily liable to the defendant. Church of the Holy Spirit v. Bevco, Inc., 215 Neb. 299, 338 N.W.2d 601 (1983). The granting of leave to file a third-party complaint is a matter entirely within the discretion of the trial court. Northwestern Bell Tel. Co. v. Woodmen of the World Life Ins. Soc., 189 Neb. 30, 199 N.W.2d 729 (1972).