Opinion
52832.
SUBMITTED OCTOBER 4, 1976.
DECIDED OCTOBER 25, 1976.
Action for damages. DeKalb Superior Court. Before Judge Dean.
Neely, Freeman Hawkins, Andrew M. Scherffius, for appellant.
J. E. Wilson, Henning, Chambers Mabry, Peter K. Kintz, for appellees.
The dramatis personae of this appeal are: Mr. Robert Evans, driver of a 1971 light blue Toyota Corona Mark II; Loretta Lukas, driver of another automobile, year and make unknown; and, Genevieve Lukas, passenger in the vehicle being driven by Loretta Lukas.
Act I begins on October 3, 1973, when the car being driven by Mr. Evans collides with that being driven by Loretta Lukas and in which Genevieve Lukas is a passenger. On July 5, 1974, Genevieve Lukas filed suit against Mr. Evans for injuries sustained in the automobile accident; Mr. Evans was served one year later and filed his answer. Act I fades as plaintiff Lukas and defendant Evans are busily engaged in discovery.
When the curtain rises on Act II, defendant Evans is center stage. He moves the court for leave to file a third-party complaint against Loretta Lukas, the driver of the automobile in which plaintiff Lukas was riding at the time of the accident. His motion is granted and thereupon a third-party complaint is filed. Act II ends when Loretta Lukas is served in December of 1975 with a complaint alleging that if defendant Evans be adjudged liable to plaintiff Lukas then he is entitled to contribution from third-party defendant Lukas due to her negligence in causing the accident.
Act III begins with the momentum having clearly swung to the third-party defendant Loretta Lukas. She moves to dismiss the complaint against her because it is "barred by the applicable two-year statute of limitation inasmuch as the plaintiff's cause of action arose on October 3, 1973, and the third-party complaint of the defendant was not filed until December 5, 1975." Enter the trial judge, who after a hearing grants third-party defendant Lucas' motion and orders her dismissed from the rest of the drama's action. Thus the final curtain drops on defendant Evans standing alone against the full array of plaintiff Lukas' complaint for $50,000 in damages.
Defendant Evans, clearly disgruntled at having his supporting cast removed from the play bill, petitioned this court for a comparative and interlocutory review of his performance and the performance of the trial judge. This court, always interested in good legal drama, granted defendant Evans' petition and has indeed reviewed both performances. It is our conclusion that appellee Lukas share star billing with appellant Evans and order the show to continue in the courtroom below with a complete cast of characters.
SUBMITTED OCTOBER 4, 1976 — DECIDED OCTOBER 25, 1976.
The sole issue on this appeal is whether or not the statute of limitation in a third-party action for contribution runs from the date of the accrual of the plaintiff's cause of action.
We start with the proposition that a third-party action "has the nature of an independent suit." Register v. Stone's Independent Oil Distributors, 227 Ga. 123, 126 ( 179 S.E.2d 68). (Emphasis supplied.) A third-party complaint must be against one who is or may be liable to the third-party plaintiff for all or part of the original plaintiff's claim against him; Code Ann. § 81A-114 does not allow the tender of another defendant who is or may be liable to the plaintiff. Balkcom v. Mull, 129 Ga. App. 277, 278 ( 199 S.E.2d 346). A third-party complaint is maintainable under Code Ann. § 81A-114 (a) for contribution among several trespassers, pursuant to Code § 105-2012, as amended. McMichael v. Ga. Power Co., 133 Ga. App. 593, 594 ( 211 S.E.2d 632).
It is thus clear that a third-party complaint seeking contribution from one who is alleged to be a joint tortfeasor is an independent suit between the third-party plaintiff and defendant in which the third-party defendant is secondarily liable to the third-party plaintiff rather than directly liable to the original plaintiff. Balkcom v. Mull, 129 Ga. App. 277, supra. Therefore, the applicable statute of limitation for the plaintiff's cause of action against the defendant has no bearing on the defendant's third-party complaint for contribution against an alleged joint tortfeasor. "The rule generally recognized is that a claim for contribution based on tort, where such claim is authorized, does not accrue, and the statute of limitations does not start to run thereon, at the time of the commission of the tort, or of the resulting injury or damage, but from the time of the accrual of the cause of action for contribution ..." Anno., 57 ALR3d 867, 875 (1974).
When does the statute of limitation begin to run on a cause of action for contribution? "[T]he right to obtain contribution does not arise until a judgment is entered..." Maxwell Bros. v. Deupree Co., 129 Ga. App. 254, 255 ( 199 S.E.2d 403) or a compromise and settlement of a claim is made. Code Ann. § 105-2012 (1) (Ga. L. 1972, p. 132). However, even though the right to contribution does not accrue until after judgment (or compromise and settlement) a third-party action for contribution can be maintained under Code Ann. § 81A-114. McMichael v. Ga. Power Co., 133 Ga. App. 593, 595, supra.
Judgment reversed. Webb and Smith, JJ., concur.