Concept

Claims for Liability Over

Crossclaim against a coparty

Claims for Liability Over

A defendant sued by a plaintiff will often believe that someone else in the case should pay some or all of whatever the plaintiff recovers. The last sentence of Rule 13(g) lets the defendant plead that belief against a coparty in the same action: "The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant."¹ Such a claim seeks liability over: it asks that some or all of the plaintiff's recovery against the defendant shift to another party.

This sentence adds no new category of crossclaim. It names one use of the category the first sentence defines, so the target must still be a coparty, and the claim must still arise from the transaction or occurrence that is the subject matter of the original action or relate to property in dispute.² A coparty is any party who is not yet an opposing party to the crossclaimant, and opposing parties are those who oppose each other on a pleaded claim by one against the other; the recent cases accept that definition.³ Because a claim over is defined by reference to the plaintiff's own claim in the action, it will ordinarily be related to the action's subject matter.

Two questions remain, and each has its own subsection. The first concerns timing. A right to contribution or indemnity may depend on the plaintiff's winning, yet the rule's words "is or may be liable" let the crossclaimant plead before that happens. The second concerns content. A defendant who says only that it is blameless and that its codefendant is at fault has stated a defense and has demanded nothing from the coparty, so the requirement of a claim against the coparty is unmet.

Contribution and Indemnity

Two substantive claims fit the rule's description, and they shift the plaintiff's recovery in different ways. When two defendants are jointly liable, one may crossclaim against the other for contribution, but only if the relevant state law gives a substantive right to that relief. When one defendant is only secondarily liable, it may crossclaim against the primarily liable defendant for indemnity against any amount it may have to pay, and the demand for indemnification is a "claim for relief."⁴ The rule supplies the place to plead these claims; state law supplies the right to win them.

The words "may be" do the heavy lifting. They mean, as with the same language in Rule 14 on impleader, that the claim may be contingent, with the judgment shaped accordingly.⁵ The crossclaimant need not wait for the plaintiff to win. One court described a defendant's crossclaim as "contingent upon Plaintiff obtaining a judgment against" that defendant and held that this "comports with Rule 13(g)."⁶ If the plaintiff recovers nothing from the crossclaimant, the contingency never occurs and there is nothing to pass along. If the plaintiff does recover, the court can award relief over in the same proceeding.

Waiting would cost the defendant dearly. In the parallel setting of an unimpleaded nonparty, a defendant who skips the claim keeps her right to indemnity, but she must establish the claim all over again without reference to the prior judgment. She must offer practically the same proof the plaintiff used to establish liability, a second factfinder may view the evidence differently, and the second suit is a needless expense.⁷ A contingent crossclaim avoids that cost, because one proceeding can decide both whether the defendant owes the plaintiff and who ultimately bears the loss.

Hypothetical Illustration

A plaintiff sues a delivery company and the driver it employs, alleging that the driver negligently caused a collision. In its answer, the company pleads that if the plaintiff recovers from it, the driver must reimburse the company, and assume state law gives the company that right. The driver is already a party, so the driver is a coparty; the claim grows out of the same collision; and the claim is contingent on the plaintiff's winning against the company. The pleading is a proper crossclaim, and no third-party complaint is needed because the driver is already in the case. If the plaintiff loses, the contingency fails and the court has nothing to shift.

In a second case, a pedestrian sues two drivers, and one driver crossclaims against the other for contribution toward any judgment. The governing state's law gives joint wrongdoers no right of contribution against each other. The other driver is a coparty and the collision supplies the transactional link, yet the crossclaim fails because it states no right to relief against the coparty. Under a law that recognizes contribution among joint wrongdoers, the same pleading would be proper.

The "is or may be liable" language also appears in Rule 14, where impleader allows, but does not compel, a defending party to assert a claim against an outsider who is or may contingently be liable to it for all or part of a claim already made against it.⁸ The two rules differ in the status of the target. A third-party complaint may be served only against one not already a party; counterclaims and crossclaims under Rule 13 are the proper procedure against one who is already a party, and the Rule 14 claim must be that the third party is liable over to the defendant for all or part of the plaintiff's claim.⁹ The target's status therefore chooses the device: a nonparty is impleaded, and a coparty is met by crossclaim.

A claim over that qualifies under Rule 13(g) can carry other claims along with it. Under Rule 18(a), a party asserting a proper crossclaim within Rule 13(g) may join with it as many independent, unrelated crossclaims as it has against the party it is suing, although the district court keeps its discretionary power to sever any claim under Rule 21.¹⁰ A later section develops that point.

The Blameless Codefendant

A crossclaim must state a claim for relief that the crossclaimant has against a coparty.¹² That requirement is easy to overlook, because a defendant sued alongside another often wants to say that the codefendant, and nobody else, caused the harm. Now that joinder in the alternative is permissible, that position comes up frequently.

A defendant who asserts only that it is blameless and that its codefendant is solely liable has no crossclaim, because the assertion asks for no relief from the party against whom it is made.¹³ The facts showing the defendant to be blameless are a complete defense to the plaintiff's claim, but they raise no issue between the defendant and the codefendant. Consider what the pleading does for the court. If the factfinder accepts the account, the plaintiff recovers nothing from that defendant and nothing remains to shift. If the factfinder rejects it and finds the defendant liable, the accusation still gives the court nothing to order against the codefendant, because the defendant asked for nothing. The accusation keeps its value as part of the defense. A crossclaim, by contrast, puts a dispute between coparties before the court for decision, and a statement of blamelessness presents no such dispute.

Hypothetical Illustration

A worker falls from scaffolding and sues the general contractor and the rigging subcontractor. The contractor's answer alleges that the subcontractor tied the safety line improperly, that the subcontractor was the sole cause of the fall, and that the contractor was blameless. The answer ends there, with no demand directed to the subcontractor, so it states a defense and no crossclaim.

In a separate suit, a hotel guest sues the hotel owner and the elevator maintenance company after an elevator drops. The owner's answer alleges that the maintenance company was solely at fault and adds that, if the owner is held liable to the guest, the maintenance company must reimburse the owner for the full amount of the judgment. The owner has asked a coparty for relief, so the pleading is a crossclaim, provided the governing law gives the owner a right to indemnity.

The owner in the second scene need not choose between its positions. It can plead that it was blameless as a defense to the guest's claim and also demand indemnity from the maintenance company if it is held liable anyway. The demand is contingent on the guest's recovering against the owner, and the words "is or may be liable" let a contingent demand be pleaded before any judgment exists.¹⁴ If the owner wins on its defense, the crossclaim falls away; if the owner loses, the court can award relief over in the same proceeding. The contractor in the first scene made the same accusation against its subcontractor, so the accusation cannot be what separates the two pleadings. The demand does.

A common error is to find a crossclaim merely because the facts show two defendants, one accident, and mutual accusations. Those facts satisfy the coparty and same-occurrence filters from earlier in this chapter, but they do not show that the pleader asked for anything. Read the pleading for a demand directed at the coparty, whether indemnity, contribution, or other relief, before calling it a crossclaim.