How to Strike the Answer of a Non-participating Defendant
| Publication year | 2021 |
| Author | By Alex J. Behar and Paul A. Traina |
By Alex J. Behar and Paul A. Traina
Alex J. Behar is a trial lawyer at Panish Shea & Boyle, focusing on litigating catastrophic personal injury, products liability, and wrongful death cases.
Paul A. Traina is a trial lawyer at Panish Shea & Boyle, focusing on complex personal injury, wrongful death, and product defect cases.
A "non-participating defendant" is a person who appears in an action by filing an answer, and is represented by counsel, but does not otherwise engage in the litigation. Non-participating defendant situations often occur in motor vehicle collision cases, but may also arise in breach of contract, family or estate litigation, or premises liability actions in which a defendant, for whatever reason, has little or no incentive to participate. This could be, for example, someone who borrows or rents a car and is then in an accident, a former employee whose conduct causes injury, or a former manager of a property where someone was injured due to a dangerous condition.
The usual reason for the non-participating defendant's lack of incentive is often because he or she is not the named insured on the insurance policy providing the defense to the action. He or she did not pay the insurance premiums, has no relationship with the underwriter, and may no longer be in contact with the named insured/primary defendant. Whatever the reason, the non-participating defendant, often the central tortfeasor, is out of the picture while a principal defendant and its insurance carrier remain on the hook.
The existence of a non-participating defendant provides the defense with a significant tactical advantage. Insurers may retain separate counsel for the principal and non-participating defendants, a practice known as "splitting the file." This allows the defense two bites at the apple; both defense counsel may serve separate discovery and conduct separate examinations at deposition. At trial, both defense counsel may give separate opening statements, separately cross-examine witnesses, and make separate closing arguments. The result is that the plaintiff's side gets double-teamed, despite the fact, for all practical purposes, both the principal and non-participating defendants have a unity of interest and separate representations are unwarranted. This article offers a step-by-step approach on how to prevent this, and ensure
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a fair and level playing field, by striking the answer of the non-participating defendant.
Defense counsel will argue they have a contractual right to defend the...
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