Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Amco Insurance Co. v. Keim Properties, LLC

United States District Court, D. Kansas

June 27, 2017

AMCO INSURANCE COMPANY, Plaintiff,
v.
KEIM PROPERTIES, LLC, Defendant.

          MEMORANDUM AND ORDER

          TERESA J. JAMES, U.S. MAGISTRATE JUDGE

         This matter is before the Court on Defendant Keim Properties, LLC's Motion for Leave to File Amended Answer and Cross-Claim (ECF No. 25) and Supplemental Motion for Leave to File Amended Answer and Third-Party Petition (ECF No. 27). In the first motion, Defendant requests leave to file an amended answer and crossclaim, which asserts claims for negligence, interference with contractual relationship, breach of fiduciary duty, and negligent misrepresentation against two third parties. In its supplemental motion, Defendant seeks leave to assert these claims in an amended answer and third-party petition pursuant to Fed.R.Civ.P. 14. Plaintiff has advised the Court that it does not oppose Defendant's motions. For the reasons stated below, the Court grants Defendant leave to file its amended answer and third-party petition.

         I. Factual and Procedural Background

         Plaintiff filed its Complaint for Declaratory Judgment against Defendant on December 30, 2016, asking the Court to declare that there is no insurance coverage under Policy Number ACP BPF 7254949419 (the “Policy”) for losses Defendant sustained to its bakery from a July 26, 2016 fire. Plaintiff alleges that it denied coverage based upon Defendant's failure to maintain the automated fire protective alarm system required by the protective safeguards endorsement of the Policy. Plaintiff alleges Defendant suspended use of the central station fire alarm system on or about October 26, 2012 without notifying Plaintiff about the suspension.

         On February 6, 2017, Defendant filed its answer asking the Court to declare that there is insurance coverage under the Policy for the losses it sustained. Defendant denies that it failed to maintain the required protective devices or services required by the Policy.

         II. Motion for Leave to File Crossclaim Petition

         The first motion before the Court is Defendant's renewed Motion for Leave to File Amended Answer and Cross-Claim (ECF No. 25). Defendant seeks leave to file an amended answer and crossclaim petition that asserts claims for negligence, interference with contractual relationship, breach of fiduciary duty, and negligent misrepresentation against its insurance agency and agent, Porter-Spears and Bundy Insurance Agency, Inc. and Sarah Porter, who are not parties to this action. The Court previously denied an earlier motion without prejudice, finding the motion requesting leave to file a crossclaim was not procedurally proper in that a crossclaim may not be asserted solely against persons who are not already parties to the original action, but must involve at least one existing party.[1] Defendant's renewed motion is similar to its first motion, but includes additional sections discussing Fed.R.Civ.P. 14(a)(5) and joinder under Fed.R.Civ.P. 19.

         While Fed.R.Civ.P. 13(g) provides the procedure for asserting a crossclaim against a coparty, Rule 13(h) addresses the joinder of additional nonparties in a counterclaim or crossclaim. It merely provides that “Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim.” Cases from this District, however, limit Rule 13(h) to only authorize joinder of additional persons in order to “adjudicate a counterclaim or cross-claim that already is before the court or one that is being asserted at the same time the addition of a nonparty is sought. This means that a counterclaim or cross-claim may not be directed solely against persons who are not already parties to the original action, but must involve at least one existing party.”[2]Cases from other Districts have similarly held Rule 13(h) cannot be used to assert a counterclaim or crossclaim solely against an unnamed party.[3]

         In this case, Defendant is the sole defendant and thus it cannot use Rule 13(h) to join third parties insurance agency and agent through its proposed crossclaim petition. Without at least one other co-defendant already in the case, the Court concludes that Rule 13(h) is not applicable and that Defendant's attempt to join third parties Porter-Spears and Bundy Insurance Agency, Inc. and Sarah Porter through its proposed crossclaim pursuant to Rule 13(h) is not procedurally proper. Defendant's renewed motion for leave to file a cross claim petition is therefore denied.

         III. Motion for Leave to File Third-Party Petition

         Defendant has also filed its Supplemental Motion for Leave to File Amended Answer and Third-Party Petition (ECF No. 27). In this supplemental motion, Defendant indicates it is supplementing its earlier motion “to clarify that it seeks leave of the Court to file a Third-Party Petition against new defendants rather than cross-claims against new defendants.”[4] Defendant attached its proposed Amended Answer and Third-Party Petition to its supplemental motion. The Court construes this supplemental motion as Defendant's alternate request for leave to assert its claims against the third parties through its proposed third-party petition under Rule 14.

         Federal Rule of Civil Procedure 14 governs the filing of a third-party complaint. Under Rule 14(a)(1), a defending party may file a third-party complaint against a nonparty “who is or may be liable to it for all or part of the claim against it.”[5] The defendant must obtain leave of court by motion if the third-party complaint is filed more than 14 days after its original answer.[6]Whether to grant or deny leave to file a third-party complaint is a matter within the court's sound discretion.[7]

         A third-party claim may be asserted under Rule 14 “only when the third party's liability is in some way dependent on the outcome of the main claim or when the third party is secondarily liable to the defendant.”[8] The original defendant's claim against a third-party defendant cannot simply be a related claim or one that arises against the same general background, but must be based upon the plaintiff's claim against the original defendant.[9] “A defendant may not contend that another person is liable directly to the plaintiff. Rather, the rule allows a defendant to bring in parties if liability may be passed on to the impleaded third party.”[10]

         Even if the requirements of Rule 14 are met, numerous cases recognize that a court still has discretion to grant or deny a Rule 14 motion.[11] In exercising its discretion, a court should construe the rule liberally to effectuate its intended purpose of adjudicating the rights of all persons concerned in the controversy in one proceeding and preventing the necessity of trying several related ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.