Parties sued in Iowa cannot file a third-party petition against a third-party merely because they blame that third-party. In order to file a third-party petition, the defendant must be able to legitimately state that the plaintiff could blame the third-party, but has not.
Iowa Rule of Civil Procedure 1.246(1) states: “At any time after commencement of the action a defending party, as a third-party plaintiff, may file a cross-petition and cause an original notice to be served upon a person not a party to the action who is or may be liable for all or part of the plaintiff’s claim. (Emphasis added.) The emphasized portion creates a condition for a third-party petition: the third-party defendant must be able to--and must actually--state that the third-party defendant is liable to the original plaintiff, not to the defendant.
As a result, a third-party petition that merely seeks relief against the third-party for the defendant’s damages is improper third-party practice.
It is true that Rule 1.246 does not limit the scope of remedies that may be sought in a third-party petition, but it does “limit[] the type of party who may be the subject of a [third-party] petition by requiring that the party be one subject to potential liability to the plaintiff in the underlying action.” Atlas, Ltd. v. Kingman Warehouse Co., 357 N.W.2d 584, 586 (Iowa 1984). Thus, a defendant could seek its own damages against a third-party, if it also claims the third-party is liable on the plaintiff’s claim.
Rule 1.246(1) contemplates that “[a]ny party may move to strike the third-party claim or for its severance or for separate trial.” Since a third-party claim that fails to allege liability on the plaintiff’s claim may not be brought as a third-party action at all, the proper remedy is to strike it from the proceedings.
Recent Comments