Third-Party Complaint Must Allege Claim for Indemnification, Subrogation, or Contribution
Must a third-party complaint include a claim for indemnification, subrogation, or contribution arising from the underlying complaint? A recent Fourth District Court of Appeal case, relying on a case from the Second District Court of Appeal, confirmed it did when it reversed final judgment against a third-party defendant due to an improper third-party complaint. Below is the applicable language relating to third-party complaints:
Rule 1.180 governs third party complaint practice. That rule provides:
At any time after commencement of the action a defendant may have a summons and complaint served on a person not a party to the action who is or may be liable to the defendant for all or part of the plaintiff’s claim against the defendant, and may also assert any other claim that arises out of the transaction or occurrence that is the subject matter of the plaintiff’s claim.
Fla. R. Civ. P. 1.180(a) (emphasis added). In Leggiere v. Merrill Lynch Realty/Fla., Inc., 544 So. 2d 240 (Fla. 2d DCA 1989), the Second District interpreted this rule as requiring the third-party plaintiff to allege a claim of indemnification, subrogation, or contribution against the third-party defendant before the third-party plaintiff could also allege any other claim arising out of the same transaction, stating:
The sole question for our consideration is whether under Rule 1.180, Florida Rules of Civil Procedure, a defendant who seeks to assert a derivative third party claim must first allege against the third party defendant a cause of action based on indemnification, subrogation or contribution before the third party complainant may assert any other claim against the third party defendant that grows out of the transaction or occurrence that is the subject matter of the original plaintiff’s claim. We hold that the third party claimant must first so allege against the third party defendant a claim for indemnification, subrogation or contribution. Prior to 1984, Rule 1.180 was clearly limited to allow third party actions only for indemnification, subrogation or contribution. In 1984, the first sentence of Rule 1.180(a) was amended to provide as follows:
At any time after commencement of the action a defendant may have a summons and complaint served on a person not a party to the action who is or may be liable to the defendant for all or part of the plaintiff’s claim against the defendant and may also assert any other claim that arises out of the transaction or occurrence that is the subject matter of the plaintiff’s claim.
(Emphasis supplied.)
The [emphasized] portion of that first sentence of Rule 1.180(a) contains the principal added language and the essential change made in the provision of the rule, and is the language of primary importance to us in reaching our conclusion. It is clear to us that by use of the word “and” rather than “or” at the beginning of the added language the rule change was meant to allow a claim in addition to but not in absence of a claim for indemnification, subrogation or contribution.
Carl Domino, Inc. v. Dixon, 48 Fla.L.Weekly D514a (Fla. 4th DCA 2023).
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