N.M. R. Civ. P. Dist. Ct. 1-014
N.M. R. Civ. P. Dist. Ct. 1-014
For joinder of third-party claims, see Rule 1-018 NMRA. For rule relating to interpleader, see Rule 1-022 NMRA. For intervention, see Rule 1-024 NMRA. For dismissal of third-party claims, see Rule 1-041 NMRA. For separate trials on third-party claims, see Rule 1-042 NMRA. The right of a party to implead a third party does not create a cause of action for indemnity against the third party. N.M. Public Sch. Ins. Auth. v. Gallagher, 2007-NMCA-142, 142 N.M. 760, 170 P.3d 998, 2007-NMCERT-010. Purpose of rule is to facilitate judicial economy by allowing a defendant to bring in a party who would be liable to him in the event the original plaintiff prevails. First Nat'l Bank v. Espinoza, 1980-NMSC-112, 95 N.M. 20, 618 P.2d 364. Rule permissive. - Rule 14 of the Federal Rules of Civil Procedure, which is identical to this rule for all practical purposes, is permissive and gives plaintiff a choice as to whether he will amend his pleadings to ask for relief against the third-party defendant. Salazar v. Murphy, 1959-NMSC-052, 66 N.M. 25, 340 P.2d 1075. Secondary liability contemplated. - This rule and Rule 18(a) (see now Rule 1-018 NMRA) limit third-party complaints to cases where there is a secondary liability against the third-party defendant arising out of the plaintiff's claim against the original defendant. Hancock v. Berger, 1967-NMSC-007, 77 N.M. 321, 422 P.2d 359. Under Subdivision (a) (see now Paragraph A) it is necessary that the third-party defendant be secondarily liable to the original defendant in the event the original defendant is held liable to the plaintiff. First Nat'l Bank v. Espinoza, 1980-NMSC-112, 95 N.M. 20, 618 P.2d 364. When third party may be brought in. - Paragraph A does not authorize a defendant to bring into a lawsuit every party against whom he may have a claim arising from the transaction at issue between the defendant and the plaintiff. Traditionally, the third-party defendant must be secondarily liable to the defendant third-party plaintiff on a theory such as contribution or indemnity, if the defendant is held liable to the plaintiff. Grain Dealers Mut. Ins. Co. v. Reed, 1987-NMSC-027, 105 N.M. 586, 734 P.2d 1269. In order to support a joinder under this rule, the third party defendants must be liable to the defendant if the defendant is found to be liable to the plaintiff. United States Fire Ins. Co. v. Aeronautics, Inc., 1988-NMSC-051, 107 N.M. 320, 757 P.2d 790. Derivative liability required. - In an action by a landlord against the franchisees of an ice cream store for breach of a lease agreement, the franchisees' claim against the franchisor was not derivative of the landlord's claim and was not the proper subject of a third-party complaint. Yelin v. Carvel Corp., 1995-NMSC-021, 119 N.M. 554, 893 P.2d 450. To whom third party must be liable. - Paragraph A does not authorize a defendant to bring into a lawsuit a third party who may be liable to the plaintiff. Grain Dealers Mut. Ins. Co. v. Reed, 1987-NMSC-027, 105 N.M. 586, 734 P.2d 1269. Defendant cannot by right bring third-party defendants into suit under rule. - If third-party defendants are primarily liable to the plaintiff, a defendant can raise this as a defense in the plaintiff's suit against him, but he cannot by right bring them into the suit under this rule. First Nat'l Bank v. Espinoza, 1980-NMSC-112, 95 N.M. 20, 618 P.2d 364. When impleader should be denied. - Impleader should be denied when the substantive basis for relief appears doubtful to the court, and where the presence of a third party would complicate rather than simplify the determination of the case. Yates Exploration, Inc. v. Valley Imp. Ass'n, 1989-NMSC-025, 108 N.M. 405, 773 P.2d 350. Indemnity and contribution. - This rule and Rule 13 (see now Rule 1-013 NMRA), permit determination of third-party claim for indemnity, although money judgment for indemnity must be subject to cross-claimant's actual loss, and money judgment for contribution would be subject to conditions of Section 41-3-2 NMSA 1978. Board of Educ. v. Standhardt, 1969-NMSC-118, 80 N.M. 543, 458 P.2d 795. Payment on judgment might well be a condition, but would not be grounds for a dismissal of a cross-claim or a third-party complaint for the recovery of either indemnity or contribution. Board of Educ. v. Standhardt, 1969-NMSC-118, 80 N.M. 543, 458 P.2d 795. Properly-pled indemnification claims. - A property-pled indemnification claim must allege that the indemnitee caused some harm and is liable for claims made against the indemnitor. Frederick v. Sun 1031, LLC, 2012-NMCA-118, 293 P.3d 934. Improperly-pled indemnification claims. - Where defendants offered investment packages to the public that consisted of interests in real property; plaintiff invested in three properties; defendants created the third parties to act as the seller of the real property; plaintiff sued defendants for violations of the New Mexico Securities Act of 1986, Section 58-13B-1 NMSA 1978 et seq. [repealed]; and defendants filed complaints against the third parties for indemnity on the ground that the third parties sold the real property interests that comprised the alleged securities that plaintiff bought, the third party complaint did not state an adequate claim for proportional or traditional indemnification because it did not allege that the third parties were wholly or partially liable to plaintiff for the violations of the Securities Act that plaintiff alleged in the complaint. Frederick v. Sun 1031, LLC, 2012-NMCA-118, 293 P.3d 934. Arbitration was not available as a defense. - Where defendants offered investment packages to the public that consisted of interests in real property; plaintiff invested in three properties; defendants created the third parties to act as the seller of the real property; the purchase agreements contained arbitration clauses; plaintiff sued defendants for violations of the New Mexico Securities Act of 1986, Section 58-13B-1 NMSA 1978 et seq. [repealed]; plaintiff did not assert any claims against the third parties or allege any interdependent or concerted misconduct between defendants and the third parties; defendants filed complaints against the third parties for indemnity on the ground that the third parties sold the real property interests that comprised the alleged securities that plaintiff bought; defendants asserted the affirmative defense that plaintiff's claims were subject to the arbitration clauses in the purchase agreements and the third parties filed a motion to compel arbitration on all disputes, defendants did not have an independent right to compel arbitration because the alleged violations of the Securities Act did not hinge on the terms of the purchase agreements and the third parties could not assert the arbitration defense because it could not be independently asserted by defendants. Frederick v. Sun 1031, LLC, 2012-NMCA-118, 293 P.3d 934. Assertion of comparative negligence theory. - A third-party complaint that previously would have been allowed under joint tortfeasor contribution theories must now be allowed, under liberal construction of the rules of procedure, to assert a comparative negligence theory or a breach of contract indemnity claim, in order to assure that each person at fault bears only his proportionate share of liability. Tipton v. Texaco, Inc., 1985-NMSC-108, 103 N.M. 689, 712 P.2d 1351. Apportionment of settling tortfeasor's negligence. - A tortfeasor defendant cannot force a settling tortfeasor to have his negligence apportioned by a jury as a third party defendant rather than as a non-party witness. Wilson v. Gillis, 1986-NMCA-112, 105 N.M. 259, 731 P.2d 955. Third-party claims properly joined. - In an action by an automobile passenger against a truck owner and a truck driver, third-party claims by the truck owner and driver against the automobile driver for property damage and personal injury were properly joined, since the claims arose out of the same transaction, and the liability of the truck owner, the truck driver and the automobile driver were dependent upon the same operative facts. Navajo Freight Lines v. Baldonado, 1977-NMSC-025, 90 N.M. 264, 562 P.2d 497. Objection waived. Third-party defendant waived objection to trial of issue, allegedly improperly joined, between herself and third-party plaintiff, by failure to timely object thereto, where she first objected to joinder of the unrelated claim by third-party complaint at conclusion of plaintiff's case and by request for a conclusion of law at the end of the entire case. Hancock v. Berger, 1967-NMSC-007, 77 N.M. 321, 422 P.2d 359. Dismissal improper. - Third-party complaint initiated by defendant insured in personal injury case against his insurer alleged a genuine cause of action, and order summarily dismissing third-party complaint was improper. Satterwhite v. Stolz, 1968-NMCA-039, 79 N.M. 320, 442 P.2d 810. Where guest in first vehicle brought suit against owner and driver of second vehicle, who thereupon filed third-party complaint against driver of first vehicle, under liberal rules of pleading amendment of this complaint so as to state that acts of third-party defendant contributed to collision and plaintiff's resulting injury should have been allowed (even though amendment should have stated that such acts proximately caused the accident), and motion to strike third-party complaint for failure to state cause of action denied; whether third-party defendant was guilty of such negligence as to be liable under guest statute would depend on evidence adduced at trial. Downing v. Dillard, 1951-NMSC-041, 55 N.M. 267, 232 P.2d 140. Federal suit not res judicata. - Dismissal with prejudice of third-party complaint brought in federal court because of plaintiff's failure to prosecute was not res judicata of plaintiff's right to bring action in state court against previous third-party defendant. Salazar v. Murphy, 1959-NMSC-052, 66 N.M. 25, 340 P.2d 1075. Third-party defendant in federal court suit, wherein judgment could not be had against him for lack of diversity, was not entitled to summary judgment based on the federal court case on res judicata grounds in subsequent suit brought against him by plaintiff in state court. Williams v. Miller, 1954-NMSC-070, 58 N.M. 472, 272 P.2d 676. See also Williams v. Miller, 1956-NMSC-071, 61 N.M. 326, 300 P.2d 480. Peremptory challenges. - It was proper to allow five peremptory challenges to third-party defendant in addition to those allowed original defendant in the action, where there was another controversy distinct from that of original parties plaintiff and defendant. Lambert v. Donelly, 1964-NMSC-184, 74 N.M. 453, 394 P.2d 735; American Ins. Co. v. Foutz & Bursum, 1955-NMSC-107, 60 N.M. 351, 291 P.2d 1081. Law reviews. - For comment, "Products Liability - Strict Liability in Torts," see 2 N.M.L. Rev. 91 (1972). For annual survey of New Mexico law relating to civil procedure, see 12 N.M.L. Rev. 97 (1982). For annual survey of New Mexico law relating to civil procedure, see 13 N.M.L. Rev. 251 (1983). For annual survey of civil procedure in New Mexico, see 18 N.M.L. Rev. 287 (1988). For article, "Statutory Adoption of Several Liability in New Mexico: A Commentary and Quasi-Legislative History," see 18 N.M.L. Rev. 483 (1988). Am. Jur. 2d, A.L.R. and C.J.S. references. - 8 Am. Jur. 2d Automobiles and Highway Traffic §1045; 14 Am. Jur. 2d Carriers §1135; 18 Am. Jur. 2d Contribution §§117, 124; 59 Am. Jur. 2d Parties §§99 et seq., 179 et seq. Right of one brought into action as a party by original defendant upon ground that he is or may be liable to latter in respect to matter in suit to raise or contest issues with plaintiff, 78 A.L.R. 327. Defendant's right to bring in third person asserted to be solely liable to the plaintiff, 168 A.L.R. 600. Right of defendant in action for personal injury or death to bring in joint tort-feasor for purpose of asserting right of contribution, 11 A.L.R.2d 228, 95 A.L.R.2d 1096. Joinder as defendants, in tort action based on condition of sidewalk or highway, of municipal corporation and abutting property owner or occupant, 15 A.L.R.2d 1293. Right of retailer sued by consumer for breach of implied warranty of wholesomeness or fitness of food or drink, to bring in as a party defendant the wholesaler or manufacturer from whom article was procured, 24 A.L.R.2d 913. Independent venue requirements as to cross-complaint or similar action by defendant seeking relief against a codefendant or third party, 100 A.L.R.2d 693. Loan receipt or agreement between insured and insurer for a loan repayable to expense of recovery from other insurer or from carrier or other person causing loss, 13 A.L.R.3d 42. 67A C.J.S. Parties §§ 88 to 111.