Public Service Co. of Colorado v. District Court In and For City and County of Denver, No. 81SA192

• Docket Nº: No. 81SA192
• Citation: 638 P.2d 772
• Case Date: December 28, 1981
• Court: Supreme Court of Colorado

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638 P.2d 772 PUBLIC SERVICE COMPANY OF COLORADO, a Colorado corporation, Petitioner,
v.
The DISTRICT COURT In and For the CITY AND COUNTY OF DENVER,
State of Colorado, and Henry E. Santo, sitting as
a Judge of said Court, Respondents. No. 81SA192. Supreme Court of Colorado, En Banc. Dec. 28, 1981.

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Kelly, Stansfield & O'Donnell, Timothy J. Flanagan and Richard W. Bryans, Denver, for petitioner.

Branney & Hillyard, Englewood, John G. Salmon, P. C., John G. Salmon, Denver, for respondents.

ROVIRA, Justice.

The petitioner, Public Service Company of Colorado, seeks a writ in the nature of mandamus pursuant to C.A.R. 21. It contends that the respondent trial court acted in excess of its jurisdiction or abused its discretion by denying petitioner's Motion for Leave to File Third-Party Complaints pursuant to C.R.C.P. 14(a). We issued a rule to show cause why the requested relief should not be granted. We now order that the rule be discharged.

A negligence action was filed against the petitioner by three construction workers (plaintiffs), who alleged that as a result of the negligence of the petitioner they suffered an electrical shock and were severely injured while engaged in the erection of a prefabricated steel building. They claim that they were holding onto a metal wall frame which was being lifted into position with the aid of a forklift and either the forklift or the frame came into contact with an energized overhead electrical conductor which was owned by the petitioner.

The plaintiffs were employees of U. S. Steel Erectors, Inc. (Erectors), which company subcontracted with The Kort, Inc. (TKI), the general contractor, for the erection of the building. Erectors provided workmen's compensation insurance through the State Compensation Insurance Fund, and the plaintiffs have received workmen's compensation benefits from the fund.

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In the negligence action, the plaintiffs seek $62,800,000 in damages from the petitioner for willfully and wantonly refusing to comply with a request to insulate, de-energize, or move the power line while the wall of the building adjacent to the line was being erected. The petitioner filed a motion for leave to file third-party complaints pursuant to C.R.C.P. 14(a) ¹ against Erectors, TKI, and Marathon Metallic Building Company ² (Marathon). The trial court denied the motion.

The petition for writ of mandamus alleges that the court's denial of the motion is an act in excess of its jurisdiction and is contrary to the rules of civil procedure because the petitioner has a right to file these third-party complaints. Alternatively, the petitioner argues that the trial court abused its discretion in denying the motion for leave to file the third-party complaints.

I.

Matters relating to the filing of third-party complaints under C.R.C.P. 14(a) are within the sound discretion of the trial court ³ and are generally reviewable only by appeal. Therefore, a writ in the nature of mandamus will issue only if the petitioner can demonstrate that the trial court has abused its discretion and that damage sustained as a result of the abuse of discretion cannot be remedied on appeal. Peoples Natural Gas Div. of N. Natural Gas Co. v. Public Utilities Comm'n, Colo., 626 P.2d 159 (1981); Seymour v. District Court, 196 Colo. 102, 581 P.2d 302 (1978); Tyler v. District Court, 193 Colo. 31, 561 P.2d 1260 (1977).

Rule 14(a) provides that: "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." Impleader under this rule, however, is within the discretion of the court, ⁴ and a denial of a party's motion to implead a third party affects no substantive rights. 3 J. Moore, Federal Practice P 14.06 (2d ed. 1974); 6 C. Wright & A. Miller, Federal Practice & Procedure § 1443 (1971).

Petitioner argues, however, that it has the right to implead TKI and Marathon because the plaintiffs could have brought a products liability action against them. This argument is derived from the rule announced in Arms Roofing Co. v. Petrie, 136 Colo. 154, 314 P.2d 903 (1957), and reaffirmed in Ashford v. Burnham Aviation Serv., Inc., 162 Colo. 582, 427 P.2d 875 (1967). These cases established that: "the test to determine when a third-party defendant may be impleaded under Rule 14 is whether he could have been joined originally as a defendant by the plaintiff." Ashford v. Burnham Aviation Serv., Inc., 162 Colo. at 584-85, 427 P.2d at 877. We conclude, however, that this is an incorrect statement of the law, and we now depart from it.

This test was adopted from United States v. Jollimore, 2 F.R.D. 148 (D.Mass.1941); and although its application to the facts of Arms Roofing and Ashford may have yielded the correct result, it was based on the language of Fed.R.Civ.P. 14(a) prior to its amendment in 1946. At that time, a defendant could file a motion to implead a third party who is or may be liable to him or to the plaintiff, for all or part of the

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plaintiff's claim against him. ⁵ Thus, under the old rule, a third-party complaint could be based upon the fact that the plaintiff had a cause of action against the third party. See Crim. v. Lumbermens Mut. Casualty Co., 26 F.Supp. 715 (D.D.C. 1939). It is clear, however, that under the amended rule "a third-party defendant may not be impleaded merely because he may be liable to the plaintiff." Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 368 n. 3, 98 S.Ct. 2396, 2399 n. 3, 57 L.Ed.2d 274, 278-79 n. 3 (1978) (emphasis in original), citing Advisory Committee's Notes on 1946 Amendment to Fed.R.Civ.P. 14, 28 U.S.C.A....