Chapter 14 Third-party Practice

• Library: South Carolina Civil Procedure (SCBar) (2020 Ed.)

Chapter 14 Third-Party Practice Rule 14¹

(a) When Defendant May Bring in Third Party. At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint 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. The third-party plaintiff need not obtain leave to make the service if he files the third-party complaint not later than 10 days after he serves his original answer. Otherwise he must obtain leave on motion upon notice to all parties in the action. The person served with the summons and third-party complaint, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiff's claim as provided in Rule 12 and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Rule 13. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff, and the third-party defendant thereupon shall assert his defenses as provided in Rule 12 and his counterclaims and cross-claims as provided in Rule 13. Any party may move to strike the third-party claim, or for its severance or separate trial. A third-party defendant may proceed under this rule against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third-party defendant.

(b) When Plaintiff may Bring in Third Party. When a counterclaim is asserted against a plaintiff, he may cause a third-party to be brought in under circumstances which under this rule would entitle a defendant to do so.

(c) Joinder as Plaintiff or Defendant. Upon motion of any party, or on its own motion, the Court may order that a party designated as a third-party defendant be joined as a plaintiff or defendant under Rules 19 or 20, when the ends of justice and efficiency in proceedings would be served thereby. In event such joinder is ordered, designation of such party or his pleading as "third-party" shall thereafter be dropped.

Note:

These Rules 14(a) through (c) are substantially the same as the Federal Rule, except for the omission of references to admiralty and maritime practice, and the addition of Rule 14(c) as to joinder. There is no counterpart to "third-party practice" in present State procedure, but the liberal State practice as to joinder and interpleader render the procedure less novel than appears on its face. The development of third-party practice in the Federal courts over the years has led to more use of joinder under Rules 19 and 20, rather than increased use of third-party practice. Therefore, Rule 14(c) is added to encourage that result where appropriate.

A. Introduction

Rule 14 permits a defendant to implead "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." The liability of the impleaded party, called a third-party defendant, must be dependent upon the outcome of the original action between the plaintiff and defendant.² One example of a proper Rule 14 impleader is an action against a surety who agreed to indemnify the defendant for matters alleged in the plaintiff's claim against the defendant. Rule 14 avoids the circularity of actions and the potentially damaging lag between the time judgment is entered against the defendant and when it is entered against the ultimately liable and financially responsible party.

Rule 14 is a rule of procedure only and does not create any substantive right to transfer liability. A prerequisite to its use is a legal theory based on indemnification, contribution,³ express or implied warranty, subrogation, contract,⁴ or other derivative liability theory that permits the defendant to shift some or all of his liability to the impleaded party. Impleader is improper without a substantive right to shift liability to the third-party defendant. Likewise, impleader may not be used by a defending party merely to bring in a new party who may be only jointly liable with the defendant.⁵

B. Acceleration of Claims

The nature of derivative liability is such that the third-party claim often does not accrue until the defendant's liability is established. Rule 14 permits impleader when the third-party defendant "is or may be liable" to the defendant/third-party plaintiff. The federal courts have interpreted this language to accelerate claims so the third-party defendant may be brought into the suit although his liability depends upon subsequent events.⁶ Likewise, federal courts have read the "may be liable" language to permit the claim although the defendant's rights against the third party are not automatically established by a judgment against the defendant. The defendant must show only that the third party "may be liable" and if liability could exist under some construction of the facts, impleader is proper.⁷

The Supreme Court has apparently adopted the federal view that the "may be liable" language does not require that the liability of the third-party defendant be established automatically by the judgment against the defendant. The court held that a contractor's third-party claim for equitable contribution from the third-party defendant subcontractor was proper even though the plaintiff had pleaded facts which if proved would defeat the claim.⁸ However, in the same case, the court held that a claim for contribution against the subcontractor under the Uniform Contribution Among Tortfeasors Act⁹ was improper because the right would not accrue until the defendant has made the full payment to the plaintiff. This result may be due to the particular statute because it contains language...