2020 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 3 - Pleadings and Motions
§ 9-11-14. Third-Party Practice
- When defendant may bring in third party. At any time after commencement of the action a defendant, 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 ten days after he serves his original answer. Otherwise he must obtain leave on motion upon notice to all parties to 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 Code Section 9-11-12 and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Code Section 9-11-13. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the 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 Code Section 9-11-12 and his counterclaims and cross-claims as provided in Code Section 9-11-13. 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 Code section 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.
- 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 Code section would entitle a defendant to do so.
- Exhibits attached to third-party complaint. Any third-party complaint filed shall have attached thereto, as exhibits, a true and correct copy of the original complaint in the action and all other pleadings which have been filed in the action prior to the filing of the third-party complaint.
(Ga. L. 1966, p. 609, § 14; Ga. L. 1969, p. 979, § 1; Ga. L. 1984, p. 22, § 9.)Cross references.
- Venue in third-party practice, Ga. Const. 1983, Art. VI, Sec. II, Para. VII, § 9-10-34.
Conclusive effect of judgment on person vouched into court by defendant, § 9-10-13.
Form of summons and complaint directed toward third-party defendant, § 9-11-122.
Right to contribution among joint trespassers; effect of settlement, § 51-12-32.U.S. Code.
- For provisions of Federal Rules of Civil Procedure, Rule 14, see 28 U.S.C.Law reviews.
- For article discussing counterclaims and cross-claims under the Georgia Civil Practice Act, see 4 Ga. St. B.J. 205 (1967). For article discussing aspects of third-party practice (impleader) under the Georgia Civil Practice Act, see 4 Ga. St. B.J. 355 (1968). For article, "Current Problems with Venue in Georgia," see 12 Ga. St. B.J. 71 (1975). For article, "Third-Party Practice in Georgia: A Decade of Experience Under the Civil Practice Act," see 13 Ga L. Rev. 13 (1978). For article surveying judicial and legislative developments in Georgia's tort laws, see 31 Mercer L. Rev. 229 (1979). For annual survey of construction law, see 56 Mercer L. Rev. 109 (2004). For note criticizing strict venue requirement that third-party defendants be impleaded in the counties of their residence in light of Register v. Stone's Independent Oil Distribs., Inc., 227 Ga. 123, 179 S.E.2d 68 (1971), see 23 Mercer L. Rev. 667 (1972). For note advocating modification of constitutional venue provisions so as to avoid limitations on applicability of joinder and impleader provisions of Civil Practice Act, see 11 Ga. L. Rev. 546 (1977). For note, "Contribution Among Joint Tortfeasors," see 12 Ga. L. Rev. 553 (1978). For comment on Register v. Stone's Independent Oil Distribs., Inc., 227 Ga. 123, 179 S.E.2d 68 (1971), see 8 Ga. St. B.J. 428 (1972). For comment discussing Georgia law as to a defendant's right to bring in any party responsible to him for damages sought by the plaintiff, and comparing the approach of Dole v. Dow Chem. Co., 30 N.Y.2d 143, 282 N.E.2d 288, 331 N.Y.S.2d 382 (1972), see 24 Mercer L. Rev. 697 (1973).JUDICIAL DECISIONS
- General Consideration
- Third-Party Pleadings
- Third-Party Defendants
- Subsection (g) of O.C.G.A. § 9-11-13, pertaining to cross-claims, and O.C.G.A. § 9-11-14, are not in conflict with the Constitution; of course, even if they were, the venue provisions of the Constitution (Ga. Const. 1983, Art. VI, Sec. II) would be controlling and cannot be extended or limited by the Civil Practice Act, O.C.G.A. Ch. 11, T. 9. Lester Witte & Co. v. Cobb Bank & Trust Co., 248 Ga. 235, 282 S.E.2d 296 (1981).Jurisdictional rules of Constitution not affected by section.
- Enactment of a new procedural method of bringing in parties cannot change the jurisdictional rules of the Constitution of this state. Register v. Stone's Indep. Oil Distribs., Inc., 227 Ga. 123, 179 S.E.2d 68 (1971). For comment, see 8 Ga. St. B.J. 428 (1972).Purpose of section.
- Purpose of impleader provisions of this section is to avoid multiplicity of actions, to save time and cost of reduplication of evidence, and to assure consistent results from similar evidence and common issues. Bishop v. Georgia Baptist Hosp., 136 Ga. App. 507, 221 S.E.2d 682 (1975).Section should be liberally construed to promote purpose.
- Court should liberally construe the impleader provisions of this section to avoid multiplicity of actions, to save time and cost of reduplication of evidence, and to assure consistent results from similar evidence and common issues. Insurance Co. of N. Am. v. Atlas Supply Co., 121 Ga. App. 1, 172 S.E.2d 632 (1970); McMichael v. Georgia Power Co., 133 Ga. App. 593, 211 S.E.2d 632 (1974); Voyager Life & Health Ins. Co. v. Pulaski Banking Co., 181 Ga. App. 201, 351 S.E.2d 725 (1986).
This section is not a device for bringing into an action any controversy which may happen to have some relationship with it. Dorsey Heating & Air Conditioning Co. v. C.C. Dickson, Inc., 153 Ga. App. 599, 266 S.E.2d 282 (1980).
Vouchment procedure authorized by O.C.G.A. § 9-10-13 has not been superseded by the third-party practice rule of the Civil Practice Act, O.C.G.A. Ch. 11, T. 9. Hardee v. Allied Steel Bldgs., Inc., 182 Ga. App. 587, 356 S.E.2d 682 (1987).
When single group or aggregate of operative facts is involved, impleader should be allowed, despite a difference in the legal nature of the claims of the various parties. Insurance Co. of N. Am. v. Atlas Supply Co., 121 Ga. App. 1, 172 S.E.2d 632 (1970).
Statute of limitation on contribution does not begin to run until judgment is entered against third-party plaintiff or until compromise and settlement of the claim is made. Independent Mfg. Co. v. Automotive Prods., Inc., 141 Ga. App. 518, 233 S.E.2d 874 (1977); Greyhound Lines v. Cobb County, 681 F.2d 1327 (11th Cir. 1982).Grounds for motion for summary judgment.
- Third-party defendant is entitled to move for summary judgment against the original plaintiff on any ground for which the original defendant would be entitled to summary judgment against the plaintiff. Empire Shoe Co. v. Nico Indus., Inc., 197 Ga. App. 411, 398 S.E.2d 440 (1990).Vacation of court's order in interests of justice.
- Even when entered, court may, in the interests of justice, vacate an order and reverse the court's position regarding the making of parties, so long as there is no abuse of discretion and the delay works no undue hardship upon the impleaded defendant. Frank B. Wilder & Assocs. v. St. Joseph's Hosp., 132 Ga. App. 373, 208 S.E.2d 145 (1974).Effect of judgment in third-party defendant's favor when new trial granted to defendant.
- When new trial is granted to the defendant in a primary action, but the judgment was returned in favor of a third-party defendant on a third-party complaint, the defendant may not obtain relief after a new trial from a third-party defendant. Norman v. Walker, 123 Ga. App. 413, 181 S.E.2d 310 (1971).
As only issue which could have been determined between truck driver and tire manufacturer in action for wrongful death of passenger was secondary liability of manufacturer (third-party defendant) to driver for death of passenger, manufacturer could not assert doctrine of estoppel by judgment in action brought against it by driver for the driver's own personal injuries. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980).Claims inappropriate for adjudication.
- Because the claims of fraud by borrowers against a mortgage company employee were not derivative, the claims were inappropriate for adjudication under O.C.G.A. § 9-11-14(a). McCray v. Fannie Mae, 292 Ga. App. 156, 663 S.E.2d 736 (2008).
Cited in Peacock Constr. Co. v. Turner Concrete, Inc., 116 Ga. App. 822, 159 S.E.2d 114 (1967); Zappa v. Ewing, 117 Ga. App. 362, 160 S.E.2d 640 (1968); D. Davis & Co. v. Plunkett, 224 Ga. 357, 162 S.E.2d 387 (1968); Henton v. Gould, 224 Ga. 512, 162 S.E.2d 722 (1968); Register v. Stone's Indep. Oil Distribs., 225 Ga. 490, 169 S.E.2d 781 (1969); Montgomery v. Richards Bldg. Materials, Inc., 122 Ga. App. 472, 177 S.E.2d 507 (1970); Robinson v. Bomar, 122 Ga. App. 564, 177 S.E.2d 815 (1970); S.M. & M. Realty Corp. v. Highlands Ins. Co., 123 Ga. App. 170, 179 S.E.2d 781 (1971); DeKalb County v. Brown Bldrs. Co., 227 Ga. 777, 183 S.E.2d 367 (1971); Mathews v. McConnell, 124 Ga. App 519, 184 S.E.2d 491 (1971); Martin Mgt. Corp. v. Farner, 124 Ga. App. 552, 184 S.E.2d 597 (1971); Roesler v. Etheridge, 125 Ga. App. 358, 187 S.E.2d 572 (1972); Burt v. Long, 125 Ga. App. 385, 187 S.E.2d 578 (1972); Shell v. Watts, 125 Ga. App. 542, 188 S.E.2d 269 (1972); Charles Seago Mechanical Contracting Co. v. Mobile Homes of Miss., Inc., 128 Ga. App. 261, 196 S.E.2d 346 (1973); Smith v. Foster, 230 Ga. 207, 196 S.E.2d 431 (1973); Taylor v. Malden Trust Co., 129 Ga. App. 330, 199 S.E.2d 553 (1973); Benefield v. Elder Bldg. Supply Co., 132 Ga. App. 195, 207 S.E.2d 678 (1974); Ogden Equip. Co. v. Talmadge Farms, Inc., 132 Ga. App. 834, 209 S.E.2d 260 (1974); Mack Trucks, Inc. v. Arrow Aluminum Castings Co., 510 F.2d 1029 (5th Cir. 1975); Howard Concrete Pipe Co. v. Cohen, 139 Ga. App. 491, 229 S.E.2d 8 (1976); Champion v. Wells, 139 Ga. App. 759, 229 S.E.2d 479 (1976); Quilfo v. Creel, 144 Ga. App. 653, 242 S.E.2d 319 (1978); First Nat'l Bank v. Rapides Bank & Trust Co., 145 Ga. App. 514, 244 S.E.2d 51 (1978); Young v. Jones, 149 Ga. App. 819, 256 S.E.2d 58 (1979); Stein v. Burgamy, 150 Ga. App. 860, 258 S.E.2d 684 (1979); Coleman v. Clark, 154 Ga. App. 188, 267 S.E.2d 824 (1980); First Bank & Trust Co. v. Insurance Serv. Ass'n, 154 Ga. App. 697, 269 S.E.2d 527 (1980); Roush v. Dan Vaden Chevrolet, Inc., 155 Ga. App. 372, 270 S.E.2d 902 (1980); Wallace v. Scott, 164 Ga. App. 129, 296 S.E.2d 423 (1982); Automated Medical Servs., Inc. v. Holland, 166 Ga. App. 57, 303 S.E.2d 127 (1983); First of Ga. Underwriters Co. v. Beck, 170 Ga. App. 68, 316 S.E.2d 519 (1984); Citizens Bank v. Hooks, 173 Ga. App. 865, 328 S.E.2d 755 (1985); Davis v. Betsill, 178 Ga. App. 730, 344 S.E.2d 525 (1986); Phillips v. Tellis, 181 Ga. App. 449, 352 S.E.2d 630 (1987); Union Camp Corp. v. Helmy, 258 Ga. 263, 367 S.E.2d 796 (1988); Hyer v. Citizens & S. Nat'l Bank, 188 Ga. App. 452, 373 S.E.2d 391 (1988); Opatut v. Guest Pond Club, Inc., 188 Ga. App. 478, 373 S.E.2d 372 (1988); Owens v. Citizens Trust Bank, 190 Ga. App. 501, 379 S.E.2d 594 (1989); Watkins v. M & M Clays, Inc., 199 Ga. App. 54, 404 S.E.2d 141 (1991); Bowden v. Russell, 200 Ga. App. 239, 407 S.E.2d 467 (1991); Tenneco Oil Co. v. Templin, 201 Ga. App. 30, 410 S.E.2d 154 (1991); Ralston v. Etowah Bank, 207 Ga. App. 775, 429 S.E.2d 102 (1993); Hussey, Gay, Bell & DeYoung, Inc. v. Clay-Ric, Inc., 212 Ga. App. 53, 441 S.E.2d 274 (1994); State Line Metals v. ALCOA, 216 Ga. App. 14, 453 S.E.2d 474 (1995); Kirsch v. Jones, 219 Ga. App. 50, 464 S.E.2d 4 (1995); Hovendick v. Presidential Fin. Corp., 230 Ga. App. 502, 497 S.E.2d 269 (1998); Satilla Cmty. Serv. Bd. v. Satilla Health Servs., 275 Ga. 805, 573 S.E.2d 31 (2002); Diaz v. Wills, 286 Ga. App. 357, 649 S.E.2d 353 (2007); U-Haul Co. v. Rutland, 348 Ga. App. 738, 824 S.E.2d 644 (2019).Third-Party Pleadings
Liberal construction should be given to third-party pleadings. Benson Paint Co. v. Williams Constr. Co., 128 Ga. App. 47, 195 S.E.2d 671 (1973).Bringing of third-party complaint not mandatory.
- While a party may set forth a claim as provided by this section, the party is not bound to prosecute the claim in this manner. Latex Filler & Chem. Co. v. Chapman, 139 Ga. App. 382, 228 S.E.2d 312 (1976).
Third-party complaint alleging separate and independent causes of action which were not dependent upon the outcome of the main claim was subject to dismissal when the only connection between the main claim and the third-party action was that the third-party defendant was alleged to have wrongfully deprived the defendant of the money which the plaintiff sought to collect. Quality Ford Sales, Inc. v. Greene, 201 Ga. App. 206, 410 S.E.2d 389 (1991).Affirmative relief sought by defendant.
- O.C.G.A. § 9-11-14 does not authorize the defendant to seek affirmative relief solely on the defendant's own behalf. Instead, the complaint must be predicated on secondary or derivative liability, such as indemnity, subrogation, or contribution. Hennessy Cadillac v. Pippin, 197 Ga. App. 448, 398 S.E.2d 725 (1990).Joinder of direct claim by amendment of third-party complaint.
- In an action against the defendant for injuries caused by an automobile collision, when the defendant brought a third-party complaint for indemnity and contribution against a brake repair shop, the defendant's claim for damages to the defendant's own car was properly joined by amendment of the third-party complaint. Shleifer v. Bridgestone-Firestone, Inc., 223 Ga. App. 256, 477 S.E.2d 405 (1996).Neither admission of liability nor certainty of recovery necessary.
- It is not necessary, in order to maintain a third-party complaint, that the original defendant admit liability to the original plaintiff, nor that the allegations show that recovery by the original defendant from the third-party defendant is a certainty. Register v. Stone's Indep. Oil Distribs., 122 Ga. App. 335, 177 S.E.2d 92 (1970), rev'd on other grounds, 227 Ga. 123, 179 S.E.2d 68 (1971).
If the impleader satisfies the pleading requirements of O.C.G.A. § 9-11-14 but nevertheless is not permitted by the trial court to bring in a third party because the defendant alternatively denied any liability, the refusal of the third-party impleader will constitute error inasmuch as it deprives the defendant of the defendant's undisputed right under the principle to bring in one who is or may be liable "to him" for all or part of the plaintiff's claim against the defendant. ARA Transp. v. Barnes, 183 Ga. App. 424, 359 S.E.2d 157 (1987).
Jurisdiction over a third-party direct damage claim is not destroyed if the original action is settled or disposed of in some fashion before adjudication of such claim; but the court, in the exercise of the court's discretion, either may proceed with the claim or dismiss the claim. Cohen v. McLaughlin, 250 Ga. 661, 301 S.E.2d 37 (1983).Impleader properly denied.
- In a dispute between adjoining landowners over title to approximately six acres of land, the trial court properly denied the adjoining neighbors' motion to implead additional third parties, and a motion to add those parties as indispensable third parties under O.C.G.A. § 9-11-19(a), because those individuals had no legal interest in the disputed property at the time the neighbors sought to add them. Pirkle v. Turner, 281 Ga. 846, 642 S.E.2d 849 (2007).
Third-party complaint was properly dismissed on the basis that no claim for indemnity or contribution had been stated and the trial court properly denied the motion to add a third-party defendant because only the defendant rendered a legal opinion on the status of title to property and was directly responsible to the client for the opinion and the attorney was in effect seeking impermissibly to tender a substitute defendant. Hines v. Holland, 334 Ga. App. 292, 779 S.E.2d 63 (2015).
Third-party complaint is subject to notice-pleading provisions of Ga. L. 1967, p. 226, § 8 (see now O.C.G.A. § 9-11-8(a)). Register v. Stone's Indep. Oil Distribs., 122 Ga. App. 335, 177 S.E.2d 92 (1970), rev'd on other grounds, 227 Ga. 123, 179 S.E.2d 68 (1971).Adequacy of third-party complaint.
- Complaint in third-party tort suit is adequate if sufficient facts are alleged which upon proper proof would allow recovery by a third-party plaintiff from a third-party defendant under applicable substantive law when the subject matter is the same as that involved in the original action. Koppers Co. v. Parks, 120 Ga. App. 551, 171 S.E.2d 639 (1969).
Third-party complaint should be allowed to stand if, under some construction of the facts which might be adduced at trial, recovery would be possible. Register v. Stone's Indep. Oil Distribs., 122 Ga. App. 335, 177 S.E.2d 92 (1979), rev'd on other grounds, 227 Ga. 123, 179 S.E.2d 68 (1971).Response to third-party complaint required.
- If a pleading is construed as a third-party complaint, a response is required, and a default judgment is proper for failure to answer. Wolski v. Hayes, 144 Ga. App. 180, 240 S.E.2d 720 (1977).Petition treated as third-party complaint.
- When an insured seeking to have its insurer defend it against a suit by a student filed a "petition for declaratory judgment" in the same trial court in which the student had filed suit against the insured, instead of impleading the insurer into the pending action, the appellate court would consider the insured's petition to be a third-party complaint, as it appeared that the actions had been effectively consolidated in the trial court and that the trial court had considered the insured's petition as if it had been properly styled a third-party complaint. Fireman's Fund Ins. Co. v. Univ. of Ga. Ath. Ass'n, 288 Ga. App. 355, 654 S.E.2d 207 (2007), cert. denied, 2008 Ga. LEXIS 284 (Ga. 2008).Third-Party Defendants
Third-party defendant may be brought in only if the third party defendant is liable over to original defendant, as in a third-party action for contribution against a joint tort-feasor. Hyde v. Klar, 168 Ga. App. 64, 308 S.E.2d 190 (1983).
Effect of impleader practice is to accelerate liability. Gosser v. Diplomat Restaurant, Inc., 125 Ga. App. 620, 188 S.E.2d 412 (1972).
Impleader is proper only when right to relief exists under applicable substantive law. Smith, Kline & French Labs. v. Just, 126 Ga. App. 643, 191 S.E.2d 632 (1972).
Absolute requirement of every third-party proceeding is that its purpose must be to impose upon third-party defendant liability for part or all of the liability asserted by the original plaintiff against the third-party plaintiff. Wolski v. Hayes, 144 Ga. App. 180, 240 S.E.2d 720 (1977).
Substitution of a party is not authorized. Nelson v. Sing Oil Co., 122 Ga. App. 19, 176 S.E.2d 227 (1970).
Third-party complaint cannot stand if the complaint's only purpose is to tender a substitute defendant to a plaintiff because a third-party defendant must be one who is or may be liable to a third-party plaintiff for all or part of a plaintiff's claim against the third-party defendant. Smith, Kline & French Labs. v. Just, 126 Ga. App. 643, 191 S.E.2d 632 (1972).
This section does not allow the tender of another defendant whose liability would flow directly to the original plaintiff rather than secondarily to the original defendant. National Life Assurance Co. v. Massey-Ferguson Credit Corp., 136 Ga. App. 311, 220 S.E.2d 793 (1975).Tender by defendant of another defendant.
- Impleader is not proper when the defendant in effect tenders to the plaintiff an additional defendant against whom the plaintiff might or might not assert a claim. Benson Paint Co. v. Williams Constr. Co., 128 Ga. App. 47, 195 S.E.2d 671 (1973).
This section does not allow tender of another defendant who is or may be liable to the plaintiff; third-party complaint must be against one who is or may be liable to the third-party plaintiff for all or part of the original plaintiff's claim against the party. Balkcom v. Mull, 129 Ga. App. 277, 199 S.E.2d 346 (1973).
This section does not allow tender of another defendant who may be liable to the plaintiff. Evans v. Lukas, 140 Ga. App. 182, 230 S.E.2d 136 (1976).No impleading when separate and independent controversies.
- This section does not permit impleading when there are separate and independent controversies between the defendant and the third-party defendant; it sanctions the defendant's use of the third-party complaint only when the third-party defendant is or may be liable over to the defendant for all or part of the plaintiff's claim against the defendant. Bill Heard Chevrolet Co. v. GMAC, 120 Ga. App. 328, 170 S.E.2d 454 (1969).
Third-party pleading does not allow the defendant to implead a third-party defendant to recover on a claim on which the third-party defendant is alleged to be directly liable to the defendant; the defendant may only implead one who is or may be liable to the defendant for all or part of the plaintiff's claim against the defendant. Southern Ry. v. Insurance Co. of N. Am., 228 Ga. 23, 183 S.E.2d 912 (1971); Wolski v. Hayes, 144 Ga. App. 180, 240 S.E.2d 720 (1977); Dorsey Heating & Air Conditioning Co. v. C.C. Dickson, Inc., 153 Ga. App. 599, 266 S.E.2d 282 (1980).
O.C.G.A. § 9-11-14 does not authorize defendant to seek affirmative and independent relief solely on the defendant's own behalf from one not a party to the action. Thigpen v. Koch, 126 Ga. App. 182, 190 S.E.2d 117 (1972); Latimore v. International Bus. Invs., Inc., 189 Ga. App. 306, 375 S.E.2d 507 (1988).Substitute defendant not shown to be secondarily liable.
- Substitute defendant not shown to be secondarily liable but brought in to assert an entirely separate claim resulted in summary judgment on third-party complaint. Lamb v. K.M. Ins. Co., 208 Ga. App. 746, 431 S.E.2d 744 (1993).
Notion of secondary or derivative liability is central, and it is irrelevant whether the basis of the third-party claim is indemnity, subrogation, contribution, express or implied warranty, or some other theory. Smith, Kline & French Labs. v. Just, 126 Ga. App. 643, 191 S.E.2d 632 (1972).Third-party's liability must be dependent or secondary.
- Third-party claim may be asserted only when third-party's liability is dependent in some way on the outcome of the main claim or when the third-party is secondarily liable to the defendant. Smith, Kline & French Labs. v. Just, 126 Ga. App. 643, 191 S.E.2d 632 (1972).
Third-party defendant's secondary liability to the original defendant for the original defendant's liability on the main claim is required if a third-party complaint is to meet the statutory requirements. Knapp v. Lolley, 177 Ga. App. 786, 341 S.E.2d 306 (1986).
O.C.G.A. § 9-11-14 allows a defendant to bring into the action a third-party defendant who is or may be liable to the defendant for all or part of the plaintiff's claim against the defendant. The third-party defendant's secondary liability to the original defendant for the defendant's liability on the main claim is required if a third-party complaint is to meet the statutory requirements. Southern Ry. v. Union Camp Corp., 181 Ga. App. 691, 353 S.E.2d 519 (1987).
City could bring a third-party complaint against a corporation that allegedly damaged a pipeline supplying water to a customer since the corporation was alleged to be a tortfeasor only as to the city and it was alleged that, in that tortfeasor's capacity, the corporation was secondarily liable for any contractual damages that the city might ultimately be obligated to pay the customer. Mayor of Savannah v. Southern Bulk Indus., Inc., 198 Ga. App. 867, 403 S.E.2d 447 (1991), cert. denied, 198 Ga. App. 898, 403 S.E.2d 447 (1991).
Third-party action may be maintained only against one who is secondarily liable to original defendant for part or all of the original plaintiff's claim. Wolski v. Hayes, 144 Ga. App. 180, 240 S.E.2d 720 (1977).
Third-party complaint must be predicated on secondary liability, and not based purely on direct liability from the third-party defendant to the plaintiff. Brabham v. Brown, 147 Ga. App. 766, 250 S.E.2d 495 (1978).On grounds of indemnity, subrogation, contribution, warranty, or the like.
- In order to recover on a third-party complaint, a third-party plaintiff must establish a right over against a third-party defendant either by indemnity (in tort or in contract, express or implied), subrogation, contribution, or warranty. Central of Ga. Ry. v. Lester, 118 Ga. App. 794, 165 S.E.2d 587 (1968).
For third-party action to be maintained, it must appear that proposed third-party defendant is or may be secondarily liable to third-party plaintiff, and a right over against the third-party must be established, either by indemnity, subrogation, contribution, or warranty. Bill Heard Chevrolet Co. v. GMAC, 120 Ga. App. 328, 170 S.E.2d 454 (1969).
This section permits impleading of third party who is secondarily liable over to defendant for all or part of the plaintiffs recovery, whether by indemnity, subrogation, contribution, express or implied warranty, or otherwise. Insurance Co. of N. Am. v. Atlas Supply Co., 121 Ga. App. 1, 172 S.E.2d 632 (1970).
Only one who is secondarily liable to the original defendant (third-party plaintiff) may be brought in as a third-party defendant as in cases of indemnity, subrogation, contribution, warranty, and the like. Burroughs Corp. v. Outside Carpets, Inc., 127 Ga. App. 622, 194 S.E.2d 487 (1972).
Third-party complaint is maintainable for contribution, as well as for indemnity, subrogation, express and implied warranty, and the like. McMichael v. Georgia Power Co., 133 Ga. App. 593, 211 S.E.2d 632 (1974).
Third-party plaintiff (original defendant) must show that in some fashion a third-party defendant is or may be secondarily liable to the third-party plaintiff through indemnity, subrogation, contribution, or warranty. National Life Assurance Co. v. Massey-Ferguson Credit Corp., 136 Ga. App. 311, 220 S.E.2d 793 (1975).
In a proceeding seeking confirmation of an arbitrator's award in a home construction dispute, it was not error for the trial court to join a surety the homeowners obtained to secure the release of the builder's lien on their property, even though the surety was not an indispensable party under O.C.G.A. § 9-11-14, because the surety was a necessary party whose joinder could have been ordered by the trial court absent a motion. Marchelletta v. Seay Constr. Servs., 265 Ga. App. 23, 593 S.E.2d 64 (2004).
Attorney could not be held solely liable to a court reporting service for $851.10, representing court reporting fees owed, as the clients the attorney was representing at the time the services were rendered should have been joined in the litigation, pursuant to both O.C.G.A. §§ 9-11-14(a) and9-11-19(a), given that: (1) the clients could have been liable to the attorney for all or part of the court reporting fees; and (2) the attorney's claim that the clients made partial payment for the court reporting services also rendered the clients necessary parties for adjudication of this dispute. Free v. Lankford & Assocs., Inc., 284 Ga. App. 328, 643 S.E.2d 771 (2007), cert. denied, 2007 Ga. LEXIS 560 (Ga. 2007).
Fact that third-party defendant may not be liable for all damages alleged does not preclude the use of third-party practice since this section specifically provides for partial liability; apportioning the damages would be for the jury. Caudle v. Whiddon, 126 Ga. App. 21, 189 S.E.2d 875 (1972).
No legal relationship between plaintiff and third-party defendant need be shown. Smith, Kline & French Labs. v. Just, 126 Ga. App. 643, 191 S.E.2d 632 (1972).Fact that plaintiff has no claim against third party irrelevant.
- It is irrelevant to the defendant's right to bring in a third party claimed to be liable over to the defendant that the plaintiff has no claim against the third party, or declines to assert a claim against the third-party. Smith, Kline & French Labs. v. Just, 126 Ga. App. 643, 191 S.E.2d 632 (1972).Third-party complaint against plaintiff's agent.
- Defendant's third-party complaint against the plaintiff's agent was not cognizable against the agent since the action could only be fairly regarded as related to the defendant's counterclaim against the plaintiff and, as such, required an order by the trial court pursuant to O.C.G.A. § 9-11-13(h) joining the agent as a party. McCormick v. Rissanen, 177 Ga. App. 623, 340 S.E.2d 268 (1986).Impleading insurer who fails to defend insured.
- When an insurer has disclaimed liability and refused to defend on behalf of the insured, automatic denial of an insured's motion to implead the insurer is improper and separate trials are justifiable only on grounds of the prejudice caused by the confusion and delay of litigating the actions together, not on the grounds of provisions in the insurance contract which attempt to override O.C.G.A. § 9-11-14. Munday v. State Farm Fire & Cas. Co., 172 Ga. App. 382, 323 S.E.2d 193 (1984).Tender of defendant liable to plaintiff.
- O.C.G.A. § 9-11-14 dealing with third-party complaints does not allow the tender of another defendant who is or may be liable to the plaintiff. Cohran v. Jones, 160 Ga. App. 761, 288 S.E.2d 80 (1981), aff'd, 249 Ga. 510, 291 S.E.2d 538 (1982).
Third-party complaint is maintainable under Ga. L. 1969, p. 979, § 1 (see now O.C.G.A. § 9-11-14) for contribution among several joint trespassers pursuant to Ga. L. 1972, p. 134, § 1 (see now O.C.G.A. § 51-12-32). Evans v. Lukas, 140 Ga. App. 182, 230 S.E.2d 136 (1976).Joint tortfeasors.
- Defendant can bring in other joint tortfeasors in order to enforce claim for contribution. Gosser v. Diplomat Restaurant, Inc., 125 Ga. App. 620, 188 S.E.2d 412 (1972).
If right of contribution among joint tortfeasors may arise, third-party action can be maintained, unless barred for some other reason. Maxwell Bros. of Athens v. Deupree Co., 129 Ga. App. 254, 199 S.E.2d 403 (1973).
Although a defendant is not generally permitted to offer a substitute defendant by third-party complaint, a third-party complaint is nevertheless maintainable under O.C.G.A. § 9-11-14 against a joint tortfeasor for contribution. Winkler, Inc. v. Vilston, N.V., 172 Ga. App. 686, 324 S.E.2d 542 (1984); Confetti Atlanta, Ltd. v. Gray, 195 Ga. App. 719, 394 S.E.2d 632 (1990).
Application of O.C.G.A. § 51-12-32. - Ga. L. 1972, p. 134, § 1 (see now O.C.G.A. § 51-12-32) relates only to contribution among "joint trespassers," that is, joint tortfeasors, and proposed third-party defendant cannot be made liable as a joint tort-feasor when it, as employer, has already paid workers' compensation to the plaintiffs. Central of Ga. Ry. v. Lester, 118 Ga. App. 794, 165 S.E.2d 587 (1968).
Even though right to contribution does not accrue until after judgment (or compromise and settlement), a third-party action for contribution may be maintained. Evans v. Lukas, 140 Ga. App. 182, 230 S.E.2d 136 (1976).Timing of right to contribution.
- Fact that contribution may not actually be obtained until original defendant has been cast in judgment and has paid does not prevent impleader; impleader judgment may be so fashioned as to protect rights of other tort-feasors, so that defendants judgment over against them may not be enforced until the defendant has paid the plaintiff's judgment or more than the defendant's proportionate share, whichever the law may require. Gosser v. Diplomat Restaurant, Inc., 125 Ga. App. 620, 188 S.E.2d 412 (1972).
Third-party action for contribution may be maintained even though the right to contribution does not accrue until after judgment or disposition through compromise and settlement. Hennessy Cadillac v. Pippin, 197 Ga. App. 448, 398 S.E.2d 725 (1990).When third-party complaint maintainable on indemnity theory.
- Third-party complaint cannot be supported on the theory of indemnity unless the third-party defendant is primarily responsible for the negligence or wrongful act which caused the injury. Central of Ga. Ry. v. Lester, 118 Ga. App. 794, 165 S.E.2d 587 (1968).
Defendant may bring in a third-party nonresident defendant if that defendant's liability to the original defendant allegedly arises by virtue of the tort forming the basis for the original action or by virtue of a contract between the defendant and the third-party defendant, such as one for indemnification, related to such tort. J.C. Penney Co. v. Malouf Co., 230 Ga. 140, 196 S.E.2d 145 (1973).
If a defendant is sued in tort, and a nonresident third-party has contracted with the defendant to indemnify the defendant against loss for such tort, then the indemnifying party can be brought into the action as a third-party defendant. J.C. Penney Co. v. Malouf Co., 230 Ga. 140, 196 S.E.2d 145 (1973).Plaintiff's spouse not a proper third-party defendant in tort action.
- In an action against a railroad brought by a plaintiff to recover for injuries suffered when the car in which the plaintiff was riding, being driven by the plaintiff's spouse, was struck by the train, the plaintiff's spouse was not subject to suit by the plaintiff for negligence, and therefore could not be a joint tort-feasor with the railroad; hence, since under Ga. L. 1972, p. 134, § 1 (see now O.C.G.A. § 51-12-32) the right to contribution relates only to joint tort-feasors, the third-party complaint brought by the railroad on the theory that the railroad would be entitled to contribution from the plaintiff's spouse failed to state a claim. Southern Ry. v. Brewer, 122 Ga. App. 292, 176 S.E.2d 665 (1970).
Maker of promissory note, sued by holder in due course, may not file third-party complaint against original payee who transferred the note before maturity without recourse. Bill Heard Chevrolet Co. v. GMAC, 120 Ga. App. 328, 170 S.E.2d 454 (1969).Impleader of counterclaimant's insurer not authorized.
- This section is not designed to authorize the plaintiff against whom a counterclaim has been filed to implead the defendant-counterclaimant's insurance company. Thigpen v. Koch, 126 Ga. App 182, 190 S.E.2d 117 (1972).
Impleader motion more than ten days after answer within court's discretion.
- When motion to implead third-party defendant is made more than ten days after original answer, motion is addressed to court's discretion. Holland-America Line v. United Coops., 124 Ga. App. 375, 183 S.E.2d 620 (1971).
There is no built-in requirement as to when impleader motion allowed by court must be filed; such a motion is addressed to the discretion of the court. Frank B. Wilder & Assocs. v. St. Joseph's Hosp., 132 Ga. App. 373, 208 S.E.2d 145 (1974).Timeliness is factor governing exercise thereof.
- Decision to grant or deny motion for leave to implead a third-party defendant is committed to the sound discretion of the court, and timeliness of such motion is a factor governing the exercise of such discretion. Jenkins v. Chambers, 127 Ga. App. 200, 193 S.E.2d 222 (1972).
When motion for leave to implead is not promptly made and movant offers no reasonable excuse for delay, the motion may properly be denied. Jenkins v. Chambers, 127 Ga. App. 200, 193 S.E.2d 222 (1972); Cherokee Nat'l Life Ins. Co. v. Coastal Bank, 239 Ga. 800, 238 S.E.2d 866 (1977).
Trial court did not err in denying a defendant contractor's motion to add subcontractors as third-party defendants because the motion was made four years after the initial action for construction defects was brought against the contractor, and the contractor failed to explain why the contractor attempted repairs took two years or why, once the contractor was aware that the problems could not be fixed, the contractor waited another eight months to add the subcontractors. R. Larry Phillips Constr. Co. v. Muscogee Glass, 302 Ga. App. 611, 691 S.E.2d 372, cert. denied, No. S10C1105, 2010 Ga. LEXIS 568; cert. denied, No. S10C1094, 2010 Ga. LEXIS 587 (Ga. 2010).Denial of motion made after summary judgment not improper.
- When motion to implead the third-party defendant was filed approximately eight months after the original answer, and after grant of summary judgment fixing liability between the original parties, it was not an abuse of the court's discretion to deny the motion. Holland-America Line v. United Coops., 124 Ga. App. 375, 183 S.E.2d 620 (1971).
Order denying defendant's motion to implead a third party is not appealable, inasmuch as the order does not finally dispose of any rights of the defendant. Davis v. Roper, 119 Ga. App. 442, 167 S.E.2d 685 (1969).
Venue of third-party complaint for contribution.
- Right of contribution from a joint tort-feasor is a substantive right, and even though an action to recover such contribution is brought as a third-party complaint, it has the nature of an independent suit, which can be maintained only in the county of residence of the alleged joint tort-feasor. Register v. Stone's Indep. Oil Distribs., Inc., 227 Ga. 123, 179 S.E.2d 68 (1971). For comment, see 8 Ga. St B.J. 428 (1972).
When the defendants, as third-party plaintiffs, seek contribution by third-party defendants of their pro rata share of any verdict and judgment obtained against them, the action cannot be brought in a county other than that of the residence of the third-party defendants. Register v. Stone's Indep. Oil Distribs., Inc., 227 Ga. 123, 179 S.E.2d 68 (1971). For comment, see 8 Ga. St. B.J. 428 (1972).Independent claim must satisfy venue requirements.
- When the claim, whether advanced by the original plaintiff or the original defendants, is essentially independent rather than ancillary to the main action, it must satisfy within itself the constitutional venue requirements (Ga. Const. 1983, Art. VI, Sec. II). Henderson v. Kent, 158 Ga. App. 206, 279 S.E.2d 503 (1981).Venue of third-party complaint for indemnification.
- For purposes of venue involving a nonresident third-party defendant by whom a third-party plaintiff was contractually indemnified, the "act" causing expenses and damages to the defendant (third-party plaintiff) occurred when the suit was brought in a particular county. J.C. Penney Co. v. Malouf Co., 230 Ga. 140, 196 S.E.2d 145 (1973).
Am. Jur. 2d.
- 59 Am. Jur. 2d, Parties, §§ 108, 241, 242, 257 et seq.
19 Am. Jur. Pleading and Practice Forms, Parties, § 276. 20A Am. Jur. Pleading and Practice Forms, Process, § 1 et seq.C.J.S.
- 35A C.J.S., Federal Civil Procedure, § 141 et seq. 67A C.J.S., Parties, §§ 63, 64.ALR.
- Right of one brought into action as a party by original defendant upon the ground that he is or may be liable to the latter in respect of the matter in suit, to raise or contest issues with plaintiff, 78 A.L.R. 327.
Right of defendant in action for personal injury or death to bring in a joint tort-feasor not made a party by plaintiff, 78 A.L.R. 580; 132 A.L.R. 1424.
Rule 14 of the Federal Civil Procedure Rules, which permits defendant to bring in as a party a third person liable in whole or in part for the claim made against the former, as applicable or as applied in actions in which the jurisdiction of the federal court is dependent upon diversity of citizenship, 148 A.L.R. 1182.
Right of defendant to bring in third person asserted to be solely liable to plaintiff, 168 A.L.R. 600.
Right of defendant in action for personal injury or death to bring in joint tort-feasor for purpose of asserting right of contribution, 11 A.L.R.2d 228; 95 A.L.R.2d 1096.
Appealability of order with respect to motion for joinder of additional parties, 16 A.L.R.2d 1023.
Right of retailer sued by consumer for breach of implied warranty of wholesomeness or fitness of food or drink, to bring in as a party defendant the wholesaler or manufacturer from whom article was procured, 24 A.L.R.2d 913.
Claim for contribution or indemnification from another tort-feasor as within provisions of statute or ordinance requiring notice of claim against municipality, 93 A.L.R.2d 1385.
Tort claim against which period of statute of limitations has run as subject of setoff, counterclaim, cross bill, or cross action in tort action arising out of same accident or incident, 72 A.L.R.3d 1065.
Application of relation back doctrine permitting change in party after statute of limitations has run in state court action - products liability cases, 93 A.L.R.6th 463.
Application of relation back doctrine permitting change in party after statute of limitations has run in state court action - wrongful death cases, 94 A.L.R.6th 111.
Application of relation back doctrine permitting change in party after statute of limitations has run in state court action - medical malpractice cases against physicians and other individual health care providers, 95 A.L.R.6th 85.