Sears, Roebuck and Co., Inc. v. Boyd, 32A01-9003-CV-132
| Citation | 562 N.E.2d 458 |
| Case Date | November 14, 1990 |
| Court | Court of Appeals of Indiana |
Page 458
Cross-Defendant,
v.
Pree BOYD, Appellee-Defendant and Cross-Plaintiff,
Jon McConnel and James Bierman, Appellees-Defendant and Plaintiff.
First District.
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John W. Hammel, Yarling, Robinson, Hammel & Lamb, Indianapolis, for appellant-defendant and cross-defendant.
William Levy, Townsend Yosha Cline Farrell & Ladendorf, Indianapolis, for appellee-defendant and cross-plaintiff.
RATLIFF, Chief Judge.
By way of an interlocutory appeal, Sears, Roebuck, and Company, Inc. appeals the denial of its motion for judgment on the pleadings on Pree Boyd's cross-claim for indemnification. We reverse and remand.
On July 23, 1988, Pree Boyd (Boyd) had his vehicle serviced by Sears, Roebuck, and Company, Inc. (Sears) in Indianapolis. Sears placed and rotated the tires on Boyd's car. After leaving the Sears service facility, one of the wheels came off of Boyd's car while he was driving. Boyd's car collided with Jon McConnel's (McConnel) vehicle. A second collision followed in which Boyd's car struck an unoccupied vehicle and fence owned by James Bierman (Bierman).
Bierman filed a claim for property damage against Boyd and McConnel with the Marion Superior Court. McConnel filed a cross-claim for personal injury against Boyd on January 20, 1989. Boyd answered McConnel's cross-claim on February 3, 1989, claiming an affirmative defense that inferred Sears proximately caused the accident.
Subsequently, Bierman's interests in the case were voluntarily dismissed, leaving
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McConnel pursuing damages against Boyd. On September 28, 1989, McConnel joined Sears to the action pursuant to Ind.Trial Rule 20 to seek damages. Sears responded on December 27, 1989, denying liability. After a change of venue to the Hendricks Circuit Court on January 16, 1990, Boyd filed a cross-claim for indemnification against Sears on January 23, 1990. However, Boyd filed his cross-claim without leave of court. Thereafter, Sears sought judgment on the pleadings as to Boyd's cross-claim, alleging Boyd's cross-claim was filed without leave of court and did not state a proper claim. The trial court denied Sears' motion and certified its ruling for interlocutory appeal. This court accepted jurisdiction of this appeal on May 31, 1990, pursuant to Ind.Appellate R. 4(B)(6).1. Whether the trial court erred in denying Sears' motion for judgment on the pleadings because Boyd's cross-complaint for indemnification was filed after his original pleading without leave of court.
2. Whether the trial court erred in denying Sears' motion for judgment on the pleadings because Boyd's cross-complaint for indemnification failed to state a claim for which relief could be granted.
Issue One
Sears correctly contends the trial court erred in denying its motion for judgment on the pleadings. Boyd's cross-claim for indemnification was filed improperly without leave of court. We previously have announced our interpretation of Ind.Trial Rules 7 and 13(G) in Ohio Valley Gas, Inc. v. Blackburn (1983), Ind.App., 445 N.E.2d 1378, 1385-86, trans. denied. Federal cases have explained more fully interpretations of the Fed.R.Civ.P. 7 and 13(g). Because Indiana's T.R. 7 and 13(G) mirror the federal rules, we present the federal courts' explanations of these rules.
Reading Fed.R.Civ.P. 7 and 13(g) together, a cross-claim must be asserted in an answer, Federal Deposit Insurance Corp. v. Soden, (D.Kan.1984), 603 F.Supp. 629, 635 and is not a pleading itself. In re Cessna Distributorship Anti-trust Litigation (8th Cir.1976), 532 F.2d 64, 67; Newton v. Kroger (E.D.Ark.1980), 501 F.Supp. 177, 179. Applying the federal...
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Avery v. Mapco Gas Products, Inc., F 90-59.
...relationship, but only when the agent is not actually at fault. McClish, at 989-990; Sears, Roebuck and Co. v. Boyd, Ind.App., 562 N.E.2d 458, 460 (1990); Consolidated Rail, 692 F.Supp. at 930. In the McClish case, Judge Dillin emphasized the "extreme" importance of noting that when the pri......
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...is created by a relationshipPage 5between the parties, i.e. employer-employee, principal-agent." Sears, Roebuck and Co. v. Boyd, 562 N.E.2d 458, 461 (Ind. App. 1990); see also Mills, 2014 WL 129276, at *5 ("[R]elationships where a 'derivative or constructive' implied right to indemnity may ......
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Avery v. Mapco Gas Products, Inc.
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