C.r.c.p. 14
C.r.c.p. 14
Annotation I. General Consideration. Law reviews. For article, "Elmer Lumpkin Pinch-Hits for the Judge on Rule 14 ", see 19 Dicta 250 (1942). For article, "Comments on the Rules of Civil Procedure", see 22 Dicta 154 (1945). For article, "Direct Action Against the Liability Insurer Under the Rules of Civil Procedure", see 22 Dicta 314 (1945). For article, "Notes on Proposed Amendments to Colorado Rules of Civil Procedure", see 27 Dicta 165 (1950). For article, "Amendments to the Colorado Rules of Civil Procedure", see 28 Dicta 242 (1951). For article, "Pleadings, Rules 7 to 25 ", see 28 Dicta 368 (1951). For article, "Pleadings and Motions: Rules 7-16 ", see 23 Rocky Mt. L. Rev. 542 (1951). For article, "One Year Review of Civil Procedure", see 35 Dicta 3 (1958). For article, "Impleader Under Rule 14(a): Will the Practice in Colorado Ever Catch up to the Theory?", see 17 Colo. Law. 635 (1988). The provisions of this rule control "third-party" procedure and practice. Susman v. District Court, 160 Colo. 475, 418 P.2d 181 (1966). This rule permitting third-party impleader is intended to liberalize and simplify procedure. Ashford v. Burnham Aviation Serv., Inc., 162 Colo. 582, 427 P.2d 875 (1967). The purpose of this rule is to reduce litigation by having one lawsuit do the work of two. Ashford v. Burnham Aviation Serv., Inc., 162 Colo. 582, 427 P.2d 875 (1967). The purpose of this rule is to settle as many conflicting interests as possible in one proceeding and thus avoid circuity of action, save time, and expense, as well as eliminate a serious handicap to the defendant of a time difference between the judgment against him and a judgment in his favor against the third-party defendant. Pioneer Mut. Comp. Co. v. Cosby, 125 Colo. 468, 244 P.2d 1089 (1952); Pub. Serv. Co. v. District Court, 638 P.2d 772 (Colo. 1981). The object of this rule is to facilitate litigation, to save costs, to bring all of the litigants into one proceeding, and to dispose of an entire matter without the expense and the labor of many suits and many trials. Pioneer Mut. Comp. Co. v. Cosby, 125 Colo. 468, 244 P.2d 1089 (1952). This rule was promulgated not only for the purpose of serving litigants but as a wise exposition of public policy. Pioneer Mut. Comp. Co. v. Cosby, 125 Colo. 468, 244 P.2d 1089 (1952). The underlying purpose of this rule is to consolidate suits that should be tried together in the interest of saving the time of the courts, parties, and witnesses and avoiding unnecessary expense. Arms Roofing Co. v. Petrie, 136 Colo. 154, 314 P.2d 903 (1957). Purposes of rule must be balanced against prejudice. The purposes of this rule-including avoiding circuity of actions and inconsistent result-must be balanced against any prejudice the impleaded party or the original plaintiff might suffer in having the matter resolved in the same suit rather than in a separate suit brought by the original defendant. United Bank of Denver Nat'l Ass'n v. Shavlik, 189 Colo. 280, 541 P.2d 317 (1975). This rule is not intended to be used as a means of trying two separate and distinct causes of action in the same proceeding. Arms Roofing Co. v. Petrie, 136 Colo. 154, 314 P.2d 903 (1957). Denial of a motion, made on the day of trial, for leave to file third-party complaints is not an abuse of discretion, for the reasons that the motion is not timely made and, if granted, would result in further delay. Harris Park Lakeshore, Inc. v. Church, 152 Colo. 278, 381 P.2d 459 (1963). Court may dismiss or deny leave to file complaint. The court may properly deny leave to file a third-party complaint, or may dismiss a third-party complaint which has been timely filed, if the claim for liability by the defendant against the third party is doubtful or if the introduction of the third-party claim would unduly complicate the case to the prejudice of the plaintiff. Pub. Serv. Co. v. District Court, 638 P.2d 772 (Colo. 1981). Applied in Naiman v. Warren A. Flickinger & Assocs., 43 Colo. App. 279, 605 P.2d 63 (1979). II. When Defendant May Bring In. Law reviews. For article, "Form of Third-Party Summons Modified by Colorado Supreme Court", see 32 Dicta 230 (1955). This rule is almost identical to F.R.C.P. 14(a). Arms Roofing Co. v. Petrie, 136 Colo. 154, 314 P.2d 903 (1957). Third-party proceedings provide for a method whereby a party made a defendant in a law suit brought against it by a plaintiff may bring into court a party who would be liable for the claim being asserted by the plaintiff. Packaging Corp. of Am. v. Indus. Comm'n, 173 Colo. 212, 477 P.2d 367 (1970). It is a suit to substitute a third party for the claim being brought by the plaintiff. Packaging Corp. of Am. v. Indus. Comm'n, 173 Colo. 212, 477 P.2d 367 (1970). Third-party practice, and particularly the practice provided for in this rule, is procedural. Pioneer Mut. Comp. Co. v. Cosby, 125 Colo. 468, 244 P.2d 1089 (1952). This rule does not abridge, enlarge, or modify the substantive rights of any litigant. Pioneer Mut. Comp. Co. v. Cosby, 125 Colo. 468, 244 P.2d 1089 (1952). It creates no substantive rights. Pioneer Mut. Comp. Co. v. Cosby, 125 Colo. 468, 244 P.2d 1089 (1952); Pub. Serv. Co. v. District Court, 638 P.2d 772 (Colo. 1981). Unless there is some substantive basis for the third-party plaintiff's claim, he cannot utilize the procedure of this rule. Pioneer Mut. Comp. Co. v. Cosby, 125 Colo. 468, 244 P.2d 1089 (1952). The third-party plaintiff must assert a substantive basis upon which the third party may be held liable to it for all or part of the plaintiff's claim. Pub. Serv. Co. v. District Court, 638 P.2d 772 (Colo. 1981). This rule does not establish a right of reimbursement, indemnity, or contribution. Pioneer Mut. Comp. Co. v. Cosby, 125 Colo. 468, 244 P.2d 1089 (1952). Where there is a basis for such right, this rule expedites the presentation and in some cases accelerates the accrual, of such right. Pioneer Mut. Comp. Co. v. Cosby, 125 Colo. 468, 244 P.2d 1089 (1952). Granting leave to interplead a third-party defendant is a matter of judicial discretion, but only up to the point where facts exist upon which this rule was intended to operate. Arms Roofing Co. v. Petrie, 136 Colo. 154, 314 P.2d 903 (1957). Discretion of the court in determining whether to grant or deny a motion to interplead a third party is limited to those cases where a finding is made that the third party may be liable to the original defendant for all or part of a plaintiff's claim. Arms Roofing Co. v. Petrie, 136 Colo. 154, 314 P.2d 903 (1957). The test to determine when a third-party defendant may be impleaded under this rule is whether the third party "is or may be liable to the defendant for all or part of the plaintiff's claim against the defendant ". Pub. Serv. Co. v. District Court, 638 P.2d 772 (Colo. 1981); Weston v. Mincomp. Corp., 698 P.2d 274 (Colo. App. 1985). This rule does not permit impleading when there are separate and independent controversies between a defendant and his desired third-party defendant. Arms Roofing Co. v. Petrie, 136 Colo. 154, 314 P.2d 903 (1957). The cases in which impleading a third-party defendant has been allowed have been cases where the third-party is liable as a guarantor, surety, insurer, or indemnifier of the principal defendant, and those in which the third-party defendant may be liable for causing the damage to the plaintiff, it being a factual question which of two people is responsible for a given injury. Arms Roofing Co. v. Petrie, 136 Colo. 154, 314 P.2d 903 (1957). Pleadings are subsidiary and serve the ends of justice by giving notice of the issues to be litigated. Ashford v. Burnham Aviation Serv., Inc., 162 Colo. 582, 427 P.2d 875 (1967). There is no jurisdiction over third-party defendants where rule is not complied with. Where it appears that provisions of section (a) of this rule and C.R.C.P. 4(c) concerning the essential content of summons have not been complied with, the trial court has no jurisdiction over third-party defendants, and a special appearance and motion to quash filed on behalf of them should be sustained. Susman v. District Court, 160 Colo. 475, 418 P.2d 181 (1966). It is not necessary for plaintiff to amend his complaint to include third-party defendant. It was not essential to the validity of the judgment entered against the third-party defendant that the original plaintiff should have formally entered an amendment to his complaint to include a claim against him. Ashford v. Burnham Aviation Serv., Inc., 162 Colo. 582, 427 P.2d 875 (1967). Where the third-party defendant not only answered the third-party complaint, but in a separate pleading undertook to answer the original complaint categorically and asserted all of the defenses he could have asserted had the plaintiff amended his complaint and alleged a claim against the third party, such an answer amounts to a waiver of amendment. Ashford v. Burnham Aviation Serv., Inc., 162 Colo. 582, 427 P.2d 875 (1967). Where the parties litigated the issues between them just as if there had been actual notice through an amendment to the complaint stating in terms the plaintiff's claim against the third-party defendant, an amendment including the third-party defendant in the original complaint was unnecessary. Ashford v. Burnham Aviation Serv., Inc., 162 Colo. 582, 427 P.2d 875 (1967). Retrial on third-party complaint concerning indemnity does not require retrial of original complaint. Where defendant's liability to plaintiff has been properly determined but defendant's third-party complaint was erroneously dismissed, retrial of issues under the third-party complaint does not entitle defendant to a contemporaneous retrial of the issues between himself and the plaintiff under the original complaint where the matter of the third-party complaint is one of indemnity and not that of a joint tort-feasor. Jacobson v. Dahlberg, 171 Colo. 42, 464 P.2d 298 (1970). Leave to file third-party complaint denied. The court did not abuse its discretion in denying leave to file a third-party complaint when the third-party claims may have unduly complicated the case to the prejudice of the plaintiffs, and the third-party claims would be better handled in a separate action. Elijah v. Fender, 674 P.2d 946 (Colo. 1984). Even though defendant may assert claim against third party who may be liable to defendant for all or part of plaintiff's claim, he may not file separate and independent claims against the third party. Martinez v. Denver Transformer Sales, 780 P.2d 49 (Colo. App. 1989). Principal may join agent. A principal being sued by a third party for the negligent act of his agent is entitled to join the agent as a party to the suit. Schledewitz v. Consumer's Oil Co-op., Inc., 144 Colo. 518, 357 P.2d 63 (1960). Parent may join his child who caused auto accident for contribution. Since liability of automobile owner for accident caused by his minor offspring is based upon the family purpose doctrine, where liability is predicated on a principal-agent or master-servant theory, and not wrongdoing on the part of the parent himself where there would be no contribution between joint tort-feasors, it is permissible for a parent to join his child in order to recover from him the damages for which the parent is held liable, and therefore it is error to dismiss a parent's fourth-party claim which demands that the liability, if any, be made a joint one with contribution to be ordered. Schledewitz v. Consumer's Oil Co-op., Inc., 144 Colo. 518, 357 P.2d 63 (1960). If an insurance company has by its policy agreed to insure against liability on the part of a defendant, then a third-party procedure is justified and the third-party plaintiffs are only seeking to compel the insurance company to do that which it contracted to do. Pioneer Mut. Comp. Co. v. Cosby, 125 Colo. 468, 244 P.2d 1089 (1952). If the policy were one of indemnity rather than of liability, then this procedure would not be applicable, the insurer not being liable until an actual loss is sustained. Pioneer Mut. Comp. Co. v. Cosby, 125 Colo. 468, 244 P.2d 1089 (1952). Where an employee asserts his own claim against the state compensation insurance fund, third-party proceedings are not provided in section (a) of this rule for such a claim. Packaging Corp. of Am. v. Indus. Comm'n, 173 Colo. 212, 477 P.2d 367 (1970). An employer cannot maintain a third-party action against industrial commission regardless of whether former employee, who brought common-law tort action against the employer for injuries sustained in an altercation with another employee in connection with his discharge from employment, was an employee at time of the altercation. Packaging Corp. of Am. v. Indus. Comm'n, 173 Colo. 212, 477 P.2d 367 (1970) (decided prior to abolition of industrial commission). An employer's claim against the state compensation insurance fund for attorney fees is not properly a third-party claim under Rule 14(a), C.R.C.P., so dismissal without prejudice of the employer's third-party action against industrial commission would not bar such employer from bringing a separate suit against the industrial commission for attorney fees if liability therefor should arise. Packaging Corp. of Am. v. Indus. Comm'n, 173 Colo. 212, 477 P.2d 367 (1970) (decided prior to abolition of industrial commission). The makers of a promissory note when sued by a holder in due course may not file a third-party complaint under this rule against the original payee who transferred the note before maturity without recourse, since a claim for damages by the makers against the original payee is independent and apart from the claim of the holder in due course and cannot affect such holder's right to a judgment against the makers. Arms Roofing Co. v. Petrie, 136 Colo. 154, 314 P.2d 903 (1957). Applied in Taylor v. Peterson, 133 Colo. 218, 293 P.2d 297 (1956).
For claimant having same rights and remedies as a plaintiff where a third-party claim is filed, see C.R.C.P. 110(d); for presentation of defenses, see C.R.C.P. 12; for counterclaims and cross claims, see C.R.C.P. 13; for amended and supplemental pleadings, see C.R.C.P. 15; for separate trials, see C.R.C.P. 42.