Impleader Under Rule 14(a): Will the Practice in Colorado Ever Catch Up to the Theory?
| Publication year | 1988 |
| Pages | 635 |
| Citation | Vol. 17 No. 4 Pg. 635 |
1988, April, Pg. 635. Impleader Under Rule 14(a): Will the Practice in Colorado Ever Catch Up to the Theory?
Impleader is the procedural device which allows a party against whom a claim is asserted to shift all or part of the liability to another person who is not yet a party to the lawsuit, by filing a third-party complaint against that person. The requirements and mechanics of impleader are governed by Federal Rule of Civil Procedure ("F.R.C.P.") Rule 14 and, in Colorado, by the virtually identical Colorado Rules of Civil Procedure ("C.R.C.P.") Rule 14.
Lawyers faced with the prospect of asserting or defending third-party complaints must come to grips with the harsh reality that the reported cases often do not seem to mesh with the language of Rule 14(a), and with the even harsher reality that many trial judges routinely seem to ignore that language. The history of impleader---first in English common law and later in the American courts of admiralty, in the federal rules and, finally, in Colorado (by decisions of the Colorado Supreme Court)---teaches some important lessons about what Rule 14(a) really means and how the trial courts should apply it.
The author believes the history of impleader makes it clear that a trial court's discretion in deciding whether to allow a third-party complaint is severely limited by Rule 14 itself, and that the proper scope of impleader is narrower than many trial judges seem to believe.
The general notion that parties to a lawsuit might be able to add other potentially liable parties has been a relatively recent development in English procedural law, although it is a direct descendant of the ancient common law practice of "vouching to warranty." The vouching practice recognized that a defendant who is sued on a warranty of title to real property or chattel could "vouch in" a third-party who had given the defendant a warranty. However, vouching was limited to warranty situations and did not permit the defendant to force both warranty actions into a single action if the third party refused to participate.(fn1)
It appears that a formal, generalized right to implead was first recognized in England by the English Judicature Act of 1873, as amended in 1883.(fn2) That amended Act allowed a defendant to implead anyone against whom he or she asserted a claim of indemnity, contribution or subrogation, or any other claim derivative of or secondary to the main action.
Also in 1883, the practice of impleading a third party was first adopted by the American courts, but only in the context of admiralty.(fn3) The American admiralty courts went beyond the English practice of allowing impleader only in cases of derivative or secondary actions by permitting it when the defendant merely alleged that the third party was liable to the plaintiff for all or part of the claim.(fn4) In effect, the defendant could force the plaintiff to sue an additional defendant.(fn5) State courts soon began to copy the liberal impleader practices of the federal admiralty courts and, as a result of the Conformity Act,(fn6) the practice became part of the procedures of non-admiralty federal courts in actions at law.(fn7)
Against this background, F.R.C.P. Rule 14 was adopted in 1937, and thereby came to be applied to all federal actions in the newly merged law and equity. The original Rule 14(a) retained the two key elements of the admiralty rule: (1) the liberal rule that a third-party complaint was proper based on the third party's liability to either the plaintiff or the defendant; and (2) the limiting requirement that the third party's liability had to be "for all or part of the plaintiff's claim against him [defendant]."
In 1946, the U.S. Supreme Court eliminated the provisions of Rule 14(a) which allowed the impleading of a third-party defendant who is merely liable to
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