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Murray v. Haverford Hospital Corp.

United States District Court, E.D. Pennsylvania
Jan 11, 1968
278 F. Supp. 5 (E.D. Pa. 1968)

Summary

holding that an original defendant could not assert a crossclaim against a third-party defendant under Rule 13(g)

Summary of this case from Asher v. Unarco Material Handling, Inc.

Opinion

Civ. A. No. 41610.

January 11, 1968.

Joseph R. Livesey, of LaBrum Doak, Philadelphia, Pa., for plaintiff.

James J. McCabe, Jr., of Duane, Morris Hecksher, Philadelphia, Pa., for third-party defendant Joan C. Zellers.

A. Grant Sprecher, of Obermayer, Rebmann, Maxwell Hippel, Philadelphia, Pa., for defendant Lewis.

Francis E. Shields, of Pepper, Hamilton Scheetz, Philadelphia, Pa., for defendant Norton Hering, M.D.

James J. McEldrew, of Cole, McEldrew, Hanamirian McWilliams, Philadelphia, Pa., for defendant Harold Haft, M.D.


OPINION ORDER


Before us is a motion by the third-party defendant, Joan C. Zellers, to dismiss the third-party complaints filed by several of the defendants in this action. The plaintiff's claim against defendants is bottomed on their alleged malpractice. As third-party plaintiffs, defendants allege that the third-party defendant, Joan Zellers, by her negligent operation of her automobile, caused the plaintiff's decedent to suffer "injuries which ultimately resulted in his death * * *."

The third-party defendant asserts "that she may not be found liable for contribution or indemnity for the consequences of the malpractice of the physicians and hence the third-party complaints fail to state a cause of action and should be dismissed. There is no direct suit by the plaintiff against Joan C. Zellers."

Initially, we note that "it is irrelevant to the defendant's right to bring in a third party claimed to be liable over to the defendant, that the plaintiff has no claim against the third-party, or declines to assert a claim against him." 3 Moore's Fed.Prac. § 14.10 p. 555 (cases cited) 2 ed. 1966. (emphasis in text).

For purposes of ruling upon the pending motion, the allegations of the third-party complaint must be deemed to be true. Simply stated, as it now appears from the record, the defendants claim that the injuries caused by Joan C. Zellers' negligence contributed to the decedent's demise.

Counsel for defendant, Lewis, conceded in his brief and at argument on the motion that "Lewis cannot seek indemnity from Zellers."

Under F.R.Civ.P. 14(a) in order to sustain a third-party claim, the defendant is only required to show that the third party "may" be liable to the defendant. At this stage of this litigation (suit was filed on November 23, 1966) we might, speculatively, envision situations, which if later proved, could conceivably establish the defendants' rights to contribution.

"Upon a trial of the facts there may or may not be made out a case whereby [Zellers] can be compelled to contribute to [the defendants]."
"We think it is premature, therefore, to dismiss the third-party complaint at this stage." Gartner v. Lombard Bros., et al., 197 F.2d 53, 55, 56 (3 Cir. 1952).

In perusing the record herein we note that several of the defendants have filed certain claims against the third-party defendant for indemnity or contribution, which they have denominated as "cross claims". While labels have no substantive bearing on the content of a claim for indemnity or contribution, we believe that Rule 13(g) was intended to regulate cross-claims between "co-parties" and contemplated that such cross-claims should be asserted against parties having like status, such as, co-defendants.

Contra, Fogel v. United Gas Improvement Co., 32 F.R.D. 202, 204 (E.D.Pa. 1963), with which, in this respect, we disagree.

Third-party practice is specifically provided for in F.R.C.P. 14, which provides, inter alia, that the third-party defendant "shall make his defenses to the third-party plaintiff's claim as provided in Rule 12 and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Rule 13." (emphasis ours)

The language quoted amply indicates the clear intent of the framers of the Federal Rules to characterize coparties as parties having like status. Were the intent otherwise confusion would result, as in this case, with some defendants serving third-party complaints under Rule 14, after obtaining leave of court, and other defendants simply filing cross-claims purportedly under Rule 13(g), which does not require summons and complaint or, under any circumstances, leave of court to serve notice to the plaintiff upon motion and notice to all parties to the action.

We are of the opinion, therefore, that the cross-claims of Norton Hering, M.D., Haverford Hospital Corporation, The Medical Center of Havertown, Inc., Phyllis Kelly, Shirley S. Bloom, M.D., Ira Blank, M.D., Grace Bastian, M.D. should be dismissed, without prejudice to the right of such defendants to file and serve upon Joan C. Zellers third-party complaints upon compliance with Rule 14(a).


Summaries of

Murray v. Haverford Hospital Corp.

United States District Court, E.D. Pennsylvania
Jan 11, 1968
278 F. Supp. 5 (E.D. Pa. 1968)

holding that an original defendant could not assert a crossclaim against a third-party defendant under Rule 13(g)

Summary of this case from Asher v. Unarco Material Handling, Inc.

In Murray v. Haverford Hosp. Corp., supra, 278 F. Supp. at 6-7, the court reasoned: "[W]e believe that Rule 13(g) was intended to regulate cross-claims between `co-parties' and contemplated that such cross-claims should be asserted against parties having like status, such as co-defendants."

Summary of this case from Schwab v. Erie Lackawanna Railroad Co.

dismissing crossclaims of defendants against a third-party defendant

Summary of this case from Terry v. Newell

dismissing cross-claims filed by defendants against a third-party defendant because the parties were not "coparties" within the meaning of Rule 13(g)

Summary of this case from NYE v. HILO MEDICAL CENTER

In Murray v. Haverford Hospital Corp.,278 F.Supp. 5 (E.D.Pa.1968), the court disagreed with Fogel v. United Gas Improvement Co., 32 F.R.D. 202 (E.D.Pa.1963) which had held that " co-party" does not mean equal party so that an original defendant was allowed to bring a cross-claim against a third-party defendant brought in by another original defendant.

Summary of this case from Paur v. Crookston Marine, Inc.

dismissing cross-claims of defendants against third party defendant upon finding Rule 13(g) "contemplated that...cross-claims should be asserted against parties having like status, such as, co-defendants"

Summary of this case from Wash. House Condominum Ass'n of Unit Owners v. Daystar Sills, Inc.
Case details for

Murray v. Haverford Hospital Corp.

Case Details

Full title:Patricia MURRAY, Administratrix of the Estate of Dennis P. Cashman…

Court:United States District Court, E.D. Pennsylvania

Date published: Jan 11, 1968

Citations

278 F. Supp. 5 (E.D. Pa. 1968)

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