Peppino Lombardo v. Lawrence Calabrese

• Decision Date: 04 November 1982
• Docket Number: 44520,82-LW-0212
• Parties: PEPPINO LOMBARDO, ET AL APPELLEES v. LAWRENCE CALABRESE APPELLANT
• Court: United States Court of Appeals (Ohio)

PEPPINO LOMBARDO, ET AL APPELLEES v. LAWRENCE CALABRESE APPELLANT

No. 44520.

82-LW-0212 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

November 4, 1982

APPEAL FROM COMMON PLEAS COURT No. 000,357.

For plaintiffs-appellees: Michael Feldman.

For defendant-appellant: William H. Rider.

MARKUS J.

This cause came on to be heard upon the pleading and the transcript of the evidence and record in the Common Pleas Court, and was argued by counsel; on consideration whereof the court certifies that in its opinion substantial justice has not been done the party complaining with respect to certain adverse parties, so judgment of said Common Pleas Court is affirmed in part and reversed in part. Each assignment of error was reviewed by the court and upon review the following disposition made:

Defendant (third party plaintiff) appeals the previous dismissal of three third party defendants, after the action between plaintiffs and defendant (third party plaintiff) was settled and dismissed with prejudice. We conclude that the City of Cleveland was properly dismissed on the ground of governmental immunity, but the two City employees should not have been dismissed for failure to perfect service. Therefore, we reverse the dismissal of those two individuals only.

On July 5, 1979, plaintiffs filed a personal injury action against defendant (third party plaintiff) alleging negligence in an automobile collision on July 9, 1977. Defendant (third party plaintiff) denied liability in his Answer, and asserted third party claims for indemnity or contribution against the City of Cleveland and two "John Doe" employees claiming negligence by those employees "in routing and directing traffic." That Answer and Third Party Complaint was filed on September 13, 1979, two months after the two-year personal injury statute of limitations had run on plaintiffs' original claim.

The "John Doe" third party defendants were not personally served with process, nor were they identified as parties, until more than one year elapsed after the filing of the Answer and Third Party Complaint. The Amended Third Party Complaint, which identified the previously unknown "John Doe" third party defendants, was filed on October 14, 1980; the now identified City employees were apparently served by certified mail on October 21, 1980. Defendant (third party plaintiff) asserts in its brief that the identities of the "John Doe" third party defendants were discovered through interrogatories filed on August 12, 1980, and answered by the City on October 2, 1980.

All three third party defendants filed motions to dismiss pursuant to Civil Rule 12(B)(6). The motions filed by the previously denominated "John Doe" third party defendants argued that the third party plaintiff failed to obtain personal jurisdiction over them within one year as dictated by Civil Rule 3(A),®1¯ without having described them with particularity and served them within that year as allowed by Civil Rule 15(D).®2¯ Third party defendant City of Cleveland alleged that the third party complaint was time barred by the personal injury statute of limitations and precluded by the defense of governmental immunity. After the dismissal of the Amended Third Party Complaint on motions by the three third party defendants, the defendant (third party plaintiff) settled the original action with plaintiffs, and the case was dismissed with prejudice on September 25, 1981.

Footnote 1 Civil Rule 3(A) provides:

"A civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing."

Footnote 2 Civil Rule 15(D) provides:

"When the plaintiff does not know the name of a defendant, that defendant may be designated in a pleading or proceeding by any name and description. When the name is discovered, the pleading or proceeding must be amended accordingly. The plaintiff, in such case, must aver in the complaint the fact that he could not discover the name. The summons must contain the words 'name unknown,' and the copy thereof must be served personally upon the defendant."

Defendant (third party plaintiff) asserts on appeal the following assignments of error:

I. THE TRIAL COURT ERRED IN GRANTING THIRD-PARTY DEFENDANT CITY OF CLEVELAND'S MOTION TO DISMISS THE THIRD-PARTY COMPLAINT AS TO ITSELF.

II. THE TRIAL COURT ERRED IN GRANTING THIRD-PARTY DEFENDANTS BACON AND ZACK'S MOTION TO DISMISS THE THIRD-PARTY COMPLAINT AS TO THEMSELVES.®3¯

Footnote 3 Defendant (third party plaintiff) divides his two assignments of error into three issues for our decision.

I. WAS THE THIRD-PARTY COMPLAINT FILED BY APPELLANT CALABRESE TIMELY FILED AS TO BOTH THIRD-PARTY DEFENDANTS?

II. IS THIRD-PARTY DEFENDANT CITY OF CLEVELAND LIABLE TO THIRD-PARTY PLAINTIFF UNDER OHIO REVISED CODE SECTION 701.02 ON THE FACE OF THE STATUTE?

III. WERE THIRD-PARTY DEFENDANTS BACON AND ZACK, EMPLOYEES OF THE CITY OF CLEVELAND, TIMELY AND PROPERLY SERVED AND IDENTIFIED?

I.

Defendant (third party plaintiff) alleges on appeal that a third party complaint is timely filed if the original claim against defendant (third party plaintiff) was timely filed. In supporting his argument, defendant (third party plaintiff) focuses on the language "at any time after commencement. . ."®4¯ in the text of Civil Rule 14. In response, all third party defendants allege for the first time that this court need not reach the timeliness issue as defendant (third party plaintiff) has misused the impleader rule by denying liability between himself and plaintiff. All parties are incorrect.

Footnote 4 In relevant part, Civil Rule 14A provides:

"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 statute of limitations for filing a third party complaint is not the statute of limitations for the initial lawsuit. Rather, the statute of limitations for any third party claim depends on the nature of the claim. Generally, third party claims seek contribution or indemnification. If a defendant has a claim over against a new party for contribution or indemnification, the statute will not begin to run against defendant (third party plaintiff) until judgment has been entered against the defendant, and perhaps not until the judgment has been paid by the defendant.

No decision interpreting the statute of limitations as it relates to Civil Rule 14 has been found in Ohio. However, several federal decisions have interpreted Federal Civil Rule 14 in that manner. In Chicago, Rock Island and Pacific Railway Company v. United States (7th Cir. 1955), 220 F.2d 939, the federal appellate court upheld the filing of an indemnification claim two-and-one-half years after the personal injury statute of limitations expired. The court stated:

"It is plain, of course, that no claim accrued to the plaintiff against the government prior to the date when the former made payment to its employee. The government's contention on this point, if sustained, would mean that a suit under the Tort Claims Act could be barred before it came into existence. Such an application of the limitation provision would produce an incongruity which we think should not be made." 220 F.2d 939, at 942.

Likewise, in Central Soya Co. v. United States (D.C. Mo. 1976), 411 F. Supp. 214, a third party defendant moved to dismiss a third party complaint for indemnity because the third party complaint had not been filed within the two year limitations period applicable to the original action. The district court overruled the motions holding that the cause of action for indemnity did not accrue until a judgment was entered against the indemnitee.

Since the third party claim presented by defendant (third party plaintiff) is necessarily contingent on the claim against himself and is in the nature of a claim of indemnity or contribution, the Third Party complaint is governed by the one-year statute of limitations for contribution actions set forth in R.C. 2707.32(B),®5¯ or the six-year statute of limitations for indemnity actions set forth in R.C. 2305.07. Ohio Cas. Ins. Co. v. Ford Motor Co. (6th Cir. 1974), 502 F.2d 138.

Footnote 5 Revised Code 2307.32(B) provides:

"(B) If there is a judgment for the injury or wrongful death against the tortfeasor seeking contribution, any separate action by him to enforce contribution must be commenced within one year after the judgment has become final by lapse of time for appeal or after appellate review."

Third party defendants assert that third party plaintiff has misused the impleader rule, so the timeliness issue is not relevant.®6¯ Their contentions are inapposite for two reasons. First, while third party plaintiff may affirmatively allege that third party defendants are solely liable, an alternative claim apparently seeks a declaration of third party defendants' contribution, if defendant (third party plaintiff) is liable. Secondly, third party defendants are now estopped from asserting this defense, as they have waived that defense for the purpose of this appeal.®7¯ Accordingly, a dismissal based on a statute of limitations defense prior to the one-year statute of limitations set forth in R.C. 2307.32(B) is erroneous.

Footnote 6 As Professor J. Patrick Browne notes in his treatise Introduction to Ohio Civil Procedure, Vol. I, p. 463:

"A third party claim which does not seek indemnity or contribution on behalf of the third party plaintiff, but which merely asserts that the third party defendant is the party solely liable to the original plaintiff, is not a 'claim' at all, but a defense of no liability. As such, it seeks to

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