§14.6 Analysis

• Jurisdiction: Washington

§14.6ANALYSIS

This section analyzes the application of CR 14 and the corresponding federal rule.

(1)Alternatives to CR 14

Rather than bringing a third-party action, the defendant (or counterclaim defendant or third-party defendant) may wait until liability, if any, is established and then commence a separate lawsuit against such third person. See RCW 4.22.040(1) (pertaining to rights of contribution); see also City of Gretna v. Def. Plant Corp., 159 F.2d 412 (5th Cir. 1947); Union Paving Co. v. Thomas, 9 F.R.D. 612 (E.D. Pa. 1949). RCW 4.22.050 provides for a one-year statute of limitations from the date of judgment for any such contribution action.

Another alternative for a defendant seeking indemnity is a declaratory judgment action. A defendant may prefer to establish the existence of an indemnity obligation by bringing a separate lawsuit as a plaintiff in the form of a declaratory judgment action against the third person under CR 57 and Chapter 7.24 RCW. In the declaratory judgment action, the plaintiff can seek to establish indemnification rights, including defense of the principal lawsuit, before trial of the action in which it is a defendant. See Chapter 57. (Rule 57. Declaratory Judgments) of this deskbook.

(2)Distinction from "vouching in"

CR14 should be distinguished from and does not replace the common-law doctrine of "vouching in." When "vouching in" occurs, a defendant notifies an alleged indemnifier who is not a party that the indemnifier will be required to indemnify the defendant against any liability that may be found in a pending lawsuit. The court in Mastro v. Kumakichi Corp., 90 Wn.App. 157, 165, 951 P.2d 817, review denied, 136 Wn.2d 1015 (1998) (citingDixon v. Fiat-Roosevelt Motors, Inc., 8 Wn.App. 689, 692, 509 P.2d 86 (1973)), defined "vouching in" as

a common law device by which a defendant notifies another (1) of the pendency of the suit against him, (2) that if liability is found, the defendant will look to the vouchee for indemnity, (3) that the notice constitutes a formal tender of the right to defend the action, and (4) that if the vouchee refuses to defend, it will be bound in a subsequent litigation between them to the factual determination necessary to the original judgment.

See also Hessler v. Hillwood Mfg. Co., 302 F.2d 61, 62 (6th Cir. 1962). Under the common law, such notice constitutes a formal tender of the right to defend the action. If the alleged indemnifier to whom the tender is extended refuses to accept the defense, then the indemnitor will be bound by necessary factual determinations made in the lawsuit if in fact the right of indemnification existed. Dixon, 8 Wn.App. at 692-93. Under CR 14, a third person is made a party, whereas under the "vouching in" doctrine, a third person is only given notice and the opportunity to defend or become a party.

(3)Distinction from joinder and intervention

Third-party practice is different from the necessary or permissive joinder of persons who may have joint or several liability to the plaintiff but who were not named by the plaintiff in the lawsuit. CR 19 and 20, governing necessary and permissive joinder of persons who may also be liable to the plaintiff, are applicable in such situations. See Chapters 19 (Rule 19. Joinder of Persons Needed for Just Adjudication) and 20 (Rule 20. Permissive Joinder of Parties) of this deskbook.

In contrast, third-party practice allows a party to add a third person who may not otherwise be involved in the same transactions or occurrences in the principal action, but who may nonetheless be liable to the third-party plaintiff for all or part of such defendant/third-party plaintiff's ultimate liability to the plaintiff. The basis of a third-party claim is the third-party defendant's potential or actual liability to the third-party plaintiff. If there is no such liability, CR 14 does not apply.

See Wicklund v. Gus J. Bouten Constr. Co., 36 Wn.App. 71, 75, 674 P.2d 184 (1983); Brown v. Spokane Cnty. Fire Prot. Dist. No. 1, 21 Wn.App. 886, 893, 586 P.2d 1207 (1978).

Third-party practice is also distinguishable from intervention. Intervention allows a person not a party to the lawsuit to intervene in the action, either as a matter of right under CR 24(a) or for permissive reasons under CR 24(b). See Chapter 24. (Rule 24. Intervention) of this deskbook.

(4)The court must have jurisdiction

The procedural availability of CR 14 does not supplant the requirement of jurisdiction. Personal jurisdiction over a third-party defendant is necessary for a third-party action to proceed. See 6 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure §1445 (3d ed. 2010). In general, a third-party plaintiff in a Washington court making a claim against a nonresident third-party defendant must establish sufficient contacts between the third-party defendant and Washington to satisfy the due process clause and the Washington long-arm statute. See Deutsch v. W. Coast Mach. Co., 80 Wn.2d 707,711,497P.2d1311, cert, denied sub nom. Kansailron Works, Ltd. v. Marubeni-Iida, Inc., 409 U.S. 1009 (1972).

A defendant who initiates a third-party claim seeking affirmative relief invokes the jurisdiction of the court and thereby waives its defense of lack of personal jurisdiction. Kuhlman Equip. Co. v. Tammermatic, Inc., 29 Wn.App. 419, 425, 628P.2d851 (1981).

(5)Discretion of the court

The trial court has discretion to allow a third-party action more than 10 days after filing an original answer under CR 14. Purser v. Rahm, 104 Wn.2d 159, 174, 702P.2d1196 (1985), cert, dismissed sub nom. Wash. Dep't ofSoc. & Health Servs., 478 U.S. 1029 (1986). This is consistent with prior case law on impleader procedures that preceded the rule. See Morgan Bros., Inc. v. Haskell Corp., 24 Wn.App. 773, 781, 604P.2d1294 (1979) (court denied motion to implead fourth-party defendant when the third-party defendant offered no reason why it had not brought the motion earlier and because impleader would have further delayed the case). In exercising its discretion, the court may consider the following factors: (1) prejudice to the original plaintiff, (2) complication of issues at trial, (3) likelihood of delaying trial, and (4) timeliness of the motion to implead. O'Mara Enter, Inc. v. Mellon Bank, N.A., 101 F.R.D. 668, 670 (WD. Pa. 1983); see also Morgan Bros., 24 Wn.App. at 781 (court considered timeliness of motion to amend to include third-party claims and potential delay of case when it denied motion). Because a trial court also has the power to sever or grant a separate trial upon motion of any party under CR 14(a), the trial court is generally inclined to permit a third-party complaint in the first instance and subsequently reconsider upon motion by a party to strike, sever, or obtain a separate trial.

The trial court's exercise of discretion is subject to review only for abuse, which exists only when no reasonable person would take the position adopted by the trial court. Purser, 104 Wn.2d at 174. The existence of abuse is determined in light of such factors as the timeliness of the motion for impleader and the reasons for seeking impleader. Id.

(6)Third-party answer and motion to strike

The third-party defendant must assert defenses under CR 12 and counterclaims and cross claims under CR 13. In the third-party answer, the same considerations for preserving defenses, counterclaims, and cross claims in an original answer are applicable to a third-party defendant's answer. See Chapters 8 (Rule 8. General Rules of Pleadings), 12 (Rule 12. Defenses and Objections), and 13 (Rule 13. Counterclaim and Cross Claim) of this deskbook.

Before answering the third-party complaint, any party, including the third-party defendant, may test the sufficiency of a third-party complaint by a motion to strike under CR 12(f). The motion to strike is made under CR 14(a), and must be made under policies established by CR 12(f). United States v. Costa, 11 F.R.D. 492 (W.D. Pa. 1951) (motion to vacate order for third-party complaint not timely after third-party defendants had filed an answer). If a motion to strike is denied, the movingparty may then move for severance or a separate trial. CR 14(a).

(7)Contribution among joint tortfeasors

Chapter 4.22 RCW (enacted as part of the Tort and Products Liability ReformActof 1981, Laws of 1981, Ch. 27, §12, and amended by Laws of 1982, Ch. 100, §1) departs from the prior common-law rule prohibiting contribution among joint tortfeasors except when there was a right of indemnity between active and passive tortfeasors. RCW 4.22.040(1) provides for a right of contribution when "two or more persons who are jointly and severally liable upon the same indivisible claim for the same injury, death or harm, whether or not judgment has been recovered against all or any of them."

Note: RCW 4.22.040 should not affect the ability of concurrent tortfeasors to bring third-party actions to determine liability for divisible claims of a plaintiff, as was the case before passage of the Act. See Brown, 21 Wn.App. 886.

The right of contribution maybe enforced either in the original action or in a separate action brought for that purpose. RCW 4.22.040(1); see also Scott I. Anderson, Contribution Among Tort-Feasorsin Washington: The 1981 Tort Reform Act, 57 Wash L. Rev. 479 (1982). The basis for contribution amongjointly and severally liable parties is the comparative fault of each party. RCW 4.22.040(1). The procedures for enforcing the right of contribution are set forth in RCW 4.22.050.

RCW 4.22.040(2) addresses whether, and to what extent, a settling defendant retains a right of contribution. "Contribution is available to a person who enters into a settlement with a claimant only (a) if the liability of the person against whom contribution is sought has been extinguished by the settlement and (b) to the extent that the amount paid...