Thigpen v. Koch, 46769

• Decision Date: 06 April 1972
• Docket Number: 3,2,No. 46769,Nos. 1,46769,s. 1
• Citation: 190 S.E.2d 117,126 Ga.App. 182
• Parties: Linda F. THIGPEN v. Richard KOCH et al
• Court: Georgia Court of Appeals

Page 117

190 S.E.2d 117

126 Ga.App. 182

Linda F. THIGPEN v. Richard KOCH et al.

No. 46769.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

April 6, 1972.

Rehearing Denied May 3, 1972.

Syllabus by the Court

1. (a) Where a motion to dismiss is addressed to an entire pleading, and a motion to strike is addressed to an entire paragraph of the pleading, the motions are properly overruled where a portion of the matter thus attacked is not subject to the objections urged.

(b) No reversible error is shown in the trial court's refusal to dismiss a third-party complaint where appellant makes no attack on a defective portion thereof.

2. CPA § 14(b) (Code Ann. § 81A-114(b)), providing that 'When a counterclaim is asserted against a plaintiff, he may cause a third party to be brought in under circumstances which under this section would entitle a defendant to do so,' places a plaintiff against whom a counterclaim has been filed in the same position as a defendant under CPA § 14(a) (Code Ann. § 81A-114(a)). Under these circumstances plaintiff, as a defending party under a counterclaim, must show that the third-party defendant which he seeks to implead will be liable over to him, not to the counterclaiming defendant or to other parties. Hence CPA § 14 (Code Ann. § 81A-114) does not authorize a plaintiff against whom a counterclaim has been filed to implead the defendant-counterclaimant's insurance company on the grounds that the company may be liable over to the defendant-counterclaimant to the extent of the applicable coverage.

Mrs. Linda Faye Thigpen sued James Sidney Holland, Richard Koch and Raymond Koch, and Welbilt Homes, Inc., because of injuries received in an automobile mishap. Mrs. Thigpen alleged that she was the driver of an automobile at the time of collision; that Richard Koch, who was driving the car of his father, Raymond Koch, was meeting her; that the car of Holland was parked and constituted an obstruction; and that Welbilt Homes, Inc., was developing a home site nearby and had caused mud and debris to be deposited on the public street. The two Koch defendants filed a third-party complaint against Willard McCullough, contending that McCullough was operating an automobile in the vicinity at the time, that he struck the Koch vehicle, and knocked it into a position of peril where it was struck by Mrs. Thigpen's car, and that McCullough's negligence combined with that of Mrs. Thigpen and others to cause the collision. The two Koch defendants also filed counterclaims for damages against plaintiff, and cross claims against Holland and his alleged master, Welbilt Homes.

The two Koch defendants contended that McCullough was liable to them on two theories; to wit, to contribute to any judgment Mrs. Thigpen might obtain against them; and to make payment directly to the two Koch defendants for injuries and damages inflicted upon them by reason of McCullough's negligence, combined with the negligence of others, in causing the collision.

Plaintiff Thigpen moved to dismiss the third-party complaint in its entirety, contending it was filed for the purpose of delay; and moved to strike the allegations therein as to combined negligence. She also filed a motion in the alternative in which she prayed that if the third-party complaint was not dismissed, that the liability insurer of the movants in said third-party complaint be named and brought in as a third-party defendant. Said liability insurer was State Farm Mutual Automobile Insurance Company, insuring the Koch vehicle.

The trial court overruled and denied these motions, from which judgment plaintiff appeals to this court. Error was enumerated on various other rulings, but the enumerations were abandoned when appellant did not have the record brought up to this court, and in her brief she tacitly agrees that they are not before us for decision. That leaves for consideration the two questions hereinafter discussed.

Payne, Barlow & Green, William O. Green, Jr., Austell, for appellant.

Powell, Goldstein, Frazer & Murphy, John T. Marshall, Randall L. Hughes, Atlanta, for appellees.

EBERHARDT, Presiding Judge.

1. The thrust of plaintiff's objection to the third-party complaint is that paragraph six thereof denies negligence on the part of third-party plaintiffs and seeks to lay the blame for the collision on the combined negligence of plaintiff, the other two original defendants, and third-party defendant. But the same paragraph also alleges: 'However, should the jury find that the third-party plaintiffs were negligent, the third-party defendant was also negligent and is liable over to the third-party plaintiffs in contribution.' Judgment is demanded in the third-party complaint against the third-party defendant for contribution. In these circumstances, where the motion to dismiss goes to the entire pleading, and the alternative motion to strike goes to the entire paragraph 6, the motion was properly overruled since the entire matter attacked by the motion does not seek merely to tender the plaintiff a substitute defendant. See Koppers Co. v. Parks, 120 Ga.App. 551, 171 S.E.2d 639; Watson v. Hamil, 122 Ga.App. 120, 176 S.E.2d 276. Hence, since the 1966 amendment to Code § 105-2012, the present third-party complaint for contribution is maintainable. Compare Vaughn v. Guenther, 8 F.R.D. 157 (D.C.Ga.) with Code § 105-2012(1).

However, the third-party complaint, apparently in conjunction with the Koch's counterclaim and cross claims, also purports to seek from third-party defendant direct damages sustained by the Kochs. CPA § 14, of course, provides only for service of a third-party complaint against one 'who is or may be liable to (third-party plaintiff) for all or part of the plaintiff's claim against him.' It is a 'liable over' provision and does not authorize a defendant to seek affirmative and independent relief solely on his own behalf from one not a party to the action. See, e.g., Southern R. Co. v. Insurance Co. of North America, 228 Ga. 23, 31, 183 S.E.2d 912; Mathews v. McConnell, 124 Ga.App. 519, 184 S.E.2d 491. But, the plaintiff has made no attack on this portion of the third-party complaint, and for this reason no error is shown in the trial court's refusal to dismiss it.

2. Whether or not a defendant, as a third-party plaintiff, or an original plaintiff, who becomes a defending party when a counterclaim is asserted against him, may ever implead his insurance company or, if so, under what circumstances (see 3 Moore's Fed.Practice § 14.12; 6 Wright & Miller, Federal Practice & Procedure § 1449), CPA § 14 is not designed to authorize a plaintiff against whom a counterclaim has been filed to implead the defendant counterclaimant's insurance company. Even if a defendant (or a plaintiff against whom a counterclaim has been filed) should ever be allowed to implead his insurance company, 'At the outset it should be noted that the question of impleading an insurer can arise only in that limited class of cases in which the insurer has disclaimed liability and refused to defend on behalf of the insured. If the insurer actually is conducting the defense, it is hardly likely to seek to implead itself and any attempt by the insured to implead an insurer who has not disclaimed liability clearly would be a breach of the 'cooperation' clause of the insurance policy.' 6 Wright & Miller, Federal Practice & Procedure § 1449, p. 267. Accord: Green v. Shepherd Constr. Co., 46 F.R.D. 434 (D.C.Ga.); Knapp v. Hankins, 106 F.Supp. 43 (D.C.Ill.); 3 Moore's Federal Practice § 14.12; Proceedings of Cleveland Institute on Federal Rules (Am.Bar Assn., 1938) 250-254. Moreover, even if impleading of one's own insurer were otherwise permissible, the court should deny it where impleader would not avoid circuity of action, or where it would raise problems not germane to the main action, or where the insured has not been put in a precarious situation by a failure of the insurer to defend, or where there is a risk of prejudice if the jury learns that the impleading party is insured. Green v. Shepherd Constr. Co., 46 F.R.D. 434 (D.C.Ga.), supra; Gipson v. Shelley, 219 F.Supp. 915 (D.C.Tenn.); American Zinc Co. v. H. H. Hall Constr. Co., 21 F.R.D. 190 (D.C.Ill.); Ballard v. Southern Cotton Oil Co., 145 F.Supp. 886 (D.C.S.C.); Kromback v. Killian, 215 App.Div. 19, 213 N.Y.S. 138; Jacobs v. Pellegrino, 154 Misc. 651, 277 N.Y.S. 654.

In the instant case it does not appear that the Kochs' insurer has disclaimed liability to them and refused to defend, nor does it appear whether impleading this insurer would avoid circuity of action, confuse the issues, etc. Under these circumstances it is clear that not even the Kochs, original defendants, would be allowed to implead the insurer on the basis that it was liable over to them, and they have not sought to do so.

It must be recognized that CPA § 14(b) places a plaintiff against whom a counterclaim has been filed in the same position as a defendant under CPA § 14(a). Under these circumstances plaintiff, as a defending party under a counterclaim, must show that the third-party defendant which he seeks to bring in will be liable over to him, not to the counterclaiming defendant or to other parties. See 3 Moore's Federal Practice § 14.30, note 1. '(Rule 14(b)) must be read in conjunction with Rule 14(a), which describes the circumstances under which a defending party may implead a third-party defendant. Plaintiff is subject to the same principles that govern the assertion of a third-party claim by defendant-his motion to implead must be timely, the presence of the claim must not prejudice any other party to the action, it should not delay or complicate the trial unduly, the third-party claim must be based on evidence similar to that underlying the counterclaim against plaintiff, it must meet jurisdiction and venue qualifications, and whether the third-party claim is retained is always subject to the court's discretion. As is true...