Mean: 12.85; Median: 15
• The question gave specific facts and positions each person wanted to take. The analysis should focus on how the parties will pursue those positions; no need to talk about all the other things they can (but do not want to) do in responsive pleadings. Yes, Swanson could bring a claim against All State--but the facts you had did not indicate he wanted to do that, so there was no reason to discuss. Yes, a defendant raise an affirmative defense of contributory negligence--but the facts you have do not indicate Swanson wanted to or that he had the facts to support it. The question identified specific positions each person wanted to take; so your analysis should have focused on how they litigate those positions, not other positions that do not matter to what they want to do.
• Don't ignore REA. Explain what a third-party complaint is before talking about what a party will file.
• The question talked about raising these issues in pleadings. A motion is not a pleading, so there was no reason to talk about motions. Work with the specific questions and specific information you have--don't talk about everything that could happen.
A pleading that states a claim for relief requires a responsive pleading:
The defending party must plead a failure of proof defense. Defendant must state its defenses in short and plain terms. FRCP 8(b)(1)(A). Defendant must respond to the allegations in the prior pleading by admitting or denying the allegations, FRCP 8(b)(1)(B), or pleading a lack of knowledge or information sufficient to form a belief as to the truth of an allegation, which functions as a denial. FRCP 8(b)(5). Failure to deny an allegation constitutes an admission. FRCP 8(b)(6). A failure of proof defense puts the burden on the party to prove the truth of its claim.
A defending party can raise an affirmative defense, or avoidance, against a claim for relief. FRCP 8(c). Colloquially, an affirmative defense argues “yes, but”: “Yes, the facts in the complaint are true and ordinarily would subject the defendant to liability, but there is another legal or factual issue that allows defendant to avoid liability.” FRCP 8(c) lists common affirmative defenses, but the list says “including,” meaning defendants can pursue others recognized by substantive law.
A defending party can assert new claims for relief against another person. A party asserts a counterclaim against an opposing party (a party who asserted a claim against it). FRCP 13(a)-(b). A party asserts a crossclaim against a co-party (a party similarly situated to it with respect to some other party). FRCP 13(g). And a party may assert a third-party claim against a non-party through a separate pleading. FRCP 14(a)(1).
Donald Swanson:
As the sole defendant named in Saunders’ Complaint, Swanson must file the first responsive pleading--an Answer to the Complaint (FRCP 7(a)(2)) to defend himself against Saunders’ negligence claim. Swanson will respond to the allegations in the Complaint by admitting that he is an employee or Edward Jones (¶ 7) and that he was acting in the course and scope of his employment at the time of the accident. (¶ 26).
Swanson can pursue an indemnification claim against Jones through a Third-Party Complaint or impleader (FRCP 7(a)(5)) against Jones. A defending party may, as third-party plaintiff, serve a summons and complaint on a non-party who is or may be liable to it for all or part of a claim against it. FRCP 14(a)(1). Impleader requires claims of contingent liability—that Jones is liable to Swanson if Swanson is liable to Saunders. Swanson seeks to enforce his employment agreement, under which Jones reimburses Swanson’s insurance company and covers any excess. Swanson must allege that he acted within the course and scope of his employment at the time of the accident; that he drove his parents’ car; that Saunders’ original complaint against Swanson seeks more than $ 700,000 in damages; and that the contract requires Jones to reimburse Swanson’s private insurance up to the coverage limits ($ 500,000), then pay any amounts beyond those limits.
Edward Jones:
Having been made third-party defendant (FRCP 14(a)(2)), Jones must file an Answer to the Third-Party Complaint. FRCP 7(a)(6). Jones must defend against Swanson’s claim by raising any defenses under FRCP 12, including responding to the Third-Party Complaint allegations. FRCP 14(a)(2)(A). Jones will deny that Swanson was acting in the course and scope of his employment at the time of the accident (¶3); if he was not acting within the course and scope, Swanson’s parents’ car is not a “covered auto” (¶ 1(c)) and the employment agreement does not apply.
A third-party defendant may pursue a contingent-liability claim against a nonparty who is or may be liable to the third-party defendant for all or part of any claim against it. FRCP 14(a)(5). The third-party defendant proceeds under FRCP 14(a)(1) by serving a summons and complaint against the non-party. The third-party defendant becomes fourth-party plaintiff and the new party becomes fourth-party defendant.
Jones can pursue indemnification claims against its insurers, Hartford and Chubb; both cover Jones for liability incurred to its employees. These claims seek to hold Hartford and Chubb to Jones for some or all of Jones’ liability to Swanson should Swanson be liable to Saunders. Hartford is the primary insurer and agreed to cover to the limits of Swanson’s personal policy ($ 500,000 in this case). Saunders’s Complaint seeks more than $ 700,000 in damages from Swanson, beyond the limits of the Hartford policy. This triggers Chubb’s obligations to Jones as secondary or excess insurer, liable to Jones for any liability to Swanson above $ 500,000.
Hartford
FRCP 14(a)(2) dictates Hartford’s responses as fourth-party defendant.
A fourth-party defendant may assert against the third-party plaintiff any defenses that the third-party defendant has to the third-party plaintiff’s claim against the third-party defendant. FRCP 14(a)(2)(C). Hartford can assert against Swanson any defense that Jones has to Swanson’s claim against Jones. Hartford’s liability to Jones is contingent on Jones’ liability to Swanson; Hartford therefore can avoid liability to Jones by helping Jones avoid liability to Swanson. Hartford will deny (as did Jones) that Swanson acted within the scope of his employment, placing his claim outside of Jones’ employment agreement; if Jones need not cover Swanson’s losses under the employment agreement, Hartford need not cover Jones’ losses under the insurance agreement.
A fourth-party defendant may assert crossclaims against a co-party under FRCP 13(g). FRCP 14(a)(2)(B). Any party may state a crossclaim against a co-party if the claim arises out of the same transaction or occurrence that is the subject matter of the original action. FRCP 13(g). Hartford and Chubb are co-parties, being similarly situated as to one party—Jones brought claims against both. And Hartford’s claim against Chubb is transactionally related to Jones’ claim against it—it seeks to allocate responsibility and payment to Jones (should Jones have to pay Swanson because Swanson and his insurer must pay Saunders). Although Chubb is designated as secondary insurer obligated to pay beyond Hartford’s $ 500,000 limits, the doctrine of mutual repugnance requires the insurers to share any liability. Farm Bureau. Hartford seeks a declaratory judgment that it is liable for half of any judgment rather than the first $ 500,000 and that Chubb is liable for half of any judgment rather than the excess beyond $ 500,000.
