Hardie et al v. Crecco

Filing 20

ORDER denying 13 Motion for Leave to File Assert Rule 13 Compulsory Counterclaim Against Karen Hardie. So Ordered by District Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Karen Hardie, Christopher
Hardie, Stephanie Hardie,
Michael Hardie, and A.H.,
minor
v.

Civil No. 13-cv-092-LM
Opinion No. 2014 DNH 061

Collin Crecco

O R D E R
Plaintiffs have sued in three counts, seeking to recover
for injuries they sustained in a collision involving an SUV
driven by Karen Hardie (“Hardie”) and an automobile driven by
Collin Crecco.

Before the court is Crecco’s motion for leave to

assert a Rule 13 compulsory counterclaim for contribution
against Hardie.

Plaintiffs object.

For the reasons that

follow, Crecco’s motion is denied.
The plaintiffs in this case include Hardie, the driver of
the SUV, plus her four passengers.

In their complaint, they

claim that the collision between Hardie’s SUV and Crecco’s car
was caused by Crecco’s negligence.

In his answer, Crecco

asserts, as a defense, that “[p]laintiffs’ injuries were caused
in whole or part by the negligence of Karen Hardie in the
operation of [her] vehicle.”

Answer (doc. no. 6) 4.

By

asserting that defense, Crecco has clearly brought into play New
Hampshire’s comparative-fault statute, N.H. Rev. Stat. Ann.
(“RSA”) § 507:7-d.

The question posed by the motion now before

the court is whether Crecco’s assertion that Hardie bears some
responsibility for causing the collision that resulted in her
passengers’ injuries also implicates the statutes governing
contribution by joint tortfeasors, RSA 507:7-f & 7-g.
In his motion, Crecco seeks leave to file a compulsory
counterclaim, for contribution, against Hardie.
Civ. P. 13(a).

See Fed. R.

He argues that: (1) Rule 13(a) of the Federal

Rules of Civil Procedure (“Federal Rules”), which requires
certain claims to be brought as counterclaims, conflicts with
state law, which requires claims for contribution “to be
enforced only by a separate action brought for that purpose,”
RSA 507:7-f, I; (2) the conflict is procedural rather than
substantive; (3) procedural conflicts between federal and state
law are resolved in favor of applying the Federal Rules; and (4)
under Rule 13(a), he is entitled to bring his contribution claim
as a counterclaim in this suit and, in fact, must do so, to
avoid waiving it.

Plaintiffs disagree, contending that: (1)

Crecco does not have a compulsory counterclaim against them,
because his claim for contribution did not exist at the time he
served his answer; (2) the lack of a mature contribution claim

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means that there is no conflict between federal and state law;
and (3) even if there were such a conflict, it would be
substantive rather than procedural, which would require the
application of state law which, in turn, would permit Crecco to
bring his contribution claim as a separate action.
The Federal Rule pertaining to compulsory counterclaims
provides, in pertinent part, that
[a] pleading must state as a counterclaim any claim
that – at the time of its service – the pleader has
against an opposing party if the claim:
(A)

arises out of the transaction or occurrence that
is the subject matter of the opposing party’s
claim; and

(B)

does not require adding another party over whom
the court cannot acquire jurisdiction.

Fed. R. Civ. P. 13(a)(1).

“A counterclaim which is compulsory

but is not brought is thereafter barred.”

M.D. Moody & Sons,

Inc. v. Dockside Marine Contrs., Inc., 549 F. Supp. 2d 143, 147
(D.P.R. 2007) (quoting Baker v. Gold Seal Liquors, Inc., 417
U.S. 467, 461 n.1 (1974); citing Mesker Bros. Iron Co. v. Donata
Corp., 401 F.2d 275, 279 (4th Cir. 1968)).
Here, it is undisputed that Crecco’s proposed counterclaim
arises out of the occurrence that is the subject matter of
plaintiffs’ claims against him and that his claim does not
require adding any other parties.

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The question is whether

Crecco had a claim for contribution against Hardie at the time
he served his answer to the complaint.

He did not.

As a specific example of the general proposition that a
“party need not assert a counterclaim that has not matured at
the time the party serves a pleading,” 6 Charles Alan Wright et
al., Federal Practice and Procedure § 1411, at 89 (2010),
commentators have suggested that “a claim for contribution
cannot be compulsory in the action whose judgment is the subject
of the contribution suit,” id. at 94-95.

In the cases upon

which Professor Wright and his co-authors rely for their more
specific rule regarding contribution claims, courts have turned
to the law establishing the right of contribution to determine
when, precisely, such a claim matures.

See, e.g., Stahl v. Ohio

River Co., 424 F.2d 52, 55 & n.5 (3d Cir. 1970) (holding that,
under Pennsylvania law, “[a] claim for contribution is not a
matured claim as contemplated under Rule 13(e) because such [a]
claim is contingent upon a verdict and judgment establishing
liability of a party as a joint tortfeasor”).

The holding in

Stahl has been criticized as outdated and insufficiently
pragmatic, see, e.g., In re Oil Spill by the Amoco Cadiz, 491 F.
Supp. 161, 165 (N.D. Ill. 1979) (citations omitted), but
criticisms of Stahl do not undermine the propriety of looking to
the applicable law of contribution to determine when a

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contribution claim matures.

Thus, to determine whether Crecco’s

claim has matured, such that it can (or must) be asserted as a
compulsory counterclaim, it is necessary to examine New
Hampshire’s contribution statutes.
Under New Hampshire law, “a right of contribution exists
between or among 2 or more persons who are . . . liable for the
same injury, death or harm, whether or not judgment has been
recovered against all or any of them.”

RSA 507:7-f, I.

Thus,

the fact that no judgment has been recovered against Crecco is
no bar to his claim for contribution.
Regarding the enforcement of contribution, the statute
provides, in pertinent part:
III. . . . If no judgment has been rendered [in
the underlying action], the person bringing the action
for contribution must have either (a) discharged by
payment the common liability within the period of the
statute of limitations applicable to the claimant’s
right of action against that person and commenced the
action for payment within one year after payment, or
(b) agreed while action was pending to discharge the
common liability and, within one year after the
agreement, have paid liability and commenced an action
for contribution.
RSA 507:7-g.

In other words, for a person to bring a claim for

contribution prior to judgment in an underlying suit, that
person must have suffered a loss by virtue of having discharged
the common liability.

Thus, a pre-judgment claim for

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contribution remains premature until the contribution claimant
has discharged the common liability.
Because Crecco has not discharged the common liability, he
does not appear to have a mature contribution claim, under New
Hampshire law, for the purpose of Rule 13(a)(1).

That, in turn,

counsels against granting his motion to assert a counterclaim
for contribution.

See Calderón-Serra v. Wilmington Trust Co.,

715 F.3d 14, 19 (1st Cir. 2013) (identifying futility as grounds
for denying motion to amend) (citations omitted); Glassman v.
Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996)
(“Futility means that the complaint, as amended, would fail to
state a claim upon which relief could be granted.”) (citations
omitted).
However, even without the maturity problem discussed above,
there is a more fundamental reason why Crecco’s motion should be
denied: “No right of contribution exists against the claimant at
fault.”

RSA 507:7-f, I; see also 8 Richard B. McNamara, New

Hampshire Practice: Personal Injury, Tort and Insurance Practice
§ 12.04 (3d ed. 2003) (“No right of contribution exists . . .
against the plaintiff to the extent he [or she] was at fault.”).
Hardie is a claimant/plaintiff in this case.

The contribution

claim Crecco seeks to assert is premised upon Hardie’s purported
fault.

Given the New Hampshire Supreme Court’s well-established

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commitment to a plain-meaning approach to statutory
construction, see, e.g., Dichiara v. Sanborn Reg’l Sch. Dist.,
___ N.H. ___, ___, 82 A.3d 225, 228 (2013) (citing Kenison v.
Dubois, 152 N.H. 448, 451 (2005)), it would certainly appear
that Crecco’s motion should be denied, on grounds of futility.
Before taking that step, however, the court directed Crecco to
“show cause why his motion for leave to assert a counterclaim
for contribution against Hardie should not be denied on grounds
that Hardie is a ‘claimant at fault’ under the statute.”
of Ruling (doc. no. 17), at 1.

Notice

Crecco’s briefing on that issue

is not persuasive.
Crecco begins by arguing that while Hardie is a claimant at
fault with respect to her own injuries, she “is not a statutory
‘claimant at fault’ vis-à-vis the claims by her family.”
Resp. (doc. no. 18) 2.

Def.’s

There is no support for such a

distinction in the words of the statute.

Moreover, that

distinction results in a construction of the disputed language
that is untenable for several reasons.
First, if “claimant at fault” means what Crecco says it
does, then the statement that “[n]o right of contribution exists
against the claimant at fault,” RSA 507:7-f, I, would actually
mean: no right of contribution exists against the claimant at
fault that would allow a defendant to recover from the claimant

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for injuries suffered by the claimant that are attributable to
the claimant’s own fault.

But, the New Hampshire Supreme Court

has clearly directed courts construing statutes not to “consider
what the legislature might have said nor add words that it did
not see fit to include.”

Dichiara, ___ N.H. at ___, 82 A.3d at

228 (citing Dalton Hydro LLC v. Town of Dalton, 153 N.H. 75, 78
(2005)).
Second, Hardie’s construction leads either to an absurd
result or to a redundancy.
Hampshire Supreme Court.

Both are disfavored by the New
See, e.g., State v. N. of the Border

Tobacco, LLC, 162 N.H. 206, 212 (2011) (explaining that goals of
statutory construction include “seek[ing] . .

to avoid an

absurd . . . result”); Garand v. Town of Exeter, 159 N.H. 136,
141 (2009) (quoting Town of Amherst v. Gilroy, 157 N.H. 275, 279
(2008)) (“[t]he legislature is not presumed to waste words or
enact redundant provisions and whenever possible, every word of
a statute should be given effect”).
Here is the absurdity.

The statute governing apportionment

of damages directs trial courts to instruct juries to award
damages “in accordance with the proportionate fault of each of
the parties.”

RSA 507:7-e, I(a).

Thus, a properly instructed

jury could never award Hardie damages against Crecco in excess
of Crecco’s share of fault for the collision.

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If there is no

chance that Hardie could be “overpaid” for her own injuries,
then there would be nothing for Crecco to recover from her by
means of a contribution action.

In other words, statutory

language barring only contribution claims based upon recoveries
for the claimant’s injuries would be protection against an
eventuality that could never come to pass.

Construing a statute

to provide protection against a non-existent risk would result
in an impermissible absurdity.

Alternatively, because Crecco’s

construction causes the disputed language to do nothing more
than mimic the protection already afforded by the comparativefault statute to defendants who have been sued by plaintiffs who
bear some fault for causing their own injuries, that
construction results in impermissible redundancy.
In sum, Crecco’s attempt to construe the disputed language
is not persuasive.

The statutory bar on contribution from

claimants at fault must, as a matter of logic and statutory
construction, do something more than preclude a defendant from
seeking contribution from a claimant at fault based upon the
claimant’s fault in causing his or her own injury.
Crecco also argues that the disputed language should not be
read to preclude his contribution claim against Hardie because:
(1) the comparative-fault statute will reduce the amount of
damages he would have to pay Hardie for her injuries if she were

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found to be partly at fault for the collision; and (2) the
contribution statute should be read to afford him a similar
reduction in the amount of damages he would have to pay the
passenger plaintiffs, should Hardie be found to be partly at
fault.

As Crecco explains:

5.
. . . [I]f a defendant cannot bring a
contribution claim against the driver of a vehicle
carrying innocent plaintiff passengers in a vehicle
involved in an accident, and a jury awards $100 in
damages and finds the defendant 60% at fault and the
driver 40% at fault, the plaintiff passengers would be
entitled to the entire award without reduction
(because they were not at fault) and the defendant
would have to pay the entire claim without being able
to recoup the 40% allocable to the driver of the
plaintiff passengers. In other words, under this
court’s reading of RSA 507:7-f, the defendant receives
the benefit of a reduction in damages on the
plaintiff’s claim because she is a joint tortfeasor
(i.e. a claimant at fault), but would have no ability
to recoup from that same joint tortfeasor on the claim
by the people in the plaintiff’s car in the same
accident.
6.
Therefore, Karen Hardie must be a third
party contribution defendant in this case so that when
a jury allocates fault to her, she will be liable for
her share to her family. Failure to allow such claim
would be unduly prejudicial to Mr. Crecco.
Def.’s Resp. (doc. no. 18), at 3.

Crecco’s argument is

unavailing.
If the New Hampshire legislature had opted for pure several
liability when it moved away from joint and several liability,
then the prejudice resulting from denying Crecco a right of
contribution against Hardie might, somehow, qualify as “undue.”
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But, the
legislature rejected this pure several liability
approach and instead passed a compromise measure
adopting several liability only for those parties
“less than 50 percent at fault.” See RSA 507:7–e,
I(b). The resulting legislation made New Hampshire a
hybrid jurisdiction.
DeBenedetto v. CLD Consulting Eng’rs, Inc., 153 N.H. 793, 799
(2006).

Because New Hampshire is a hybrid jurisdiction, its

comparative-fault statute plainly countenances the seeming
“inequity” of denying a plaintiff who was only 51% at fault for
his injuries the right to recover from a defendant who was 49%
at fault.

In light of that “inequity,” which does not exist in

jurisdictions with pure several liability, there seems to be
little basis for arguing that it would run counter to the intent
of the legislature to allow plaintiffs without fault a full
recovery from defendants who are more than 50% at fault for
causing their injuries.

That is, there is nothing inherently

unjust about a construction of the contribution statute that
results in something other than pure several liability.
Moreover, it is easy to see why it makes sense to bar
claims for contribution such as the one Hardie seeks to assert
in this case.

Consider, for example, a case involving a two-car

accident in which one driver has two passengers, and that driver
sues the driver with no passengers.

Further imagine that the

jury determines that: (1) the plaintiff driver and his
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passengers each suffered $100,000 in damages; and (2) the
defendant driver was 60% at fault.

If the defendant driver were

allowed a contribution counterclaim, then: (1) the plaintiff
driver would be awarded $60,000 from the defendant driver; (2)
the plaintiff passengers would be awarded $100,000 each; and (3)
the defendant driver would be entitled to recoup the plaintiff
driver’s entire recovery, via contribution, to help him pay the
plaintiff passengers.

The legislature could well have intended

to avoid such a result by denying defendants a claim for
contribution against plaintiffs at fault.
The court concludes by noting that there are several
jurisdictions that do allow counterclaims for contribution,
which necessarily implies a right to contribution from a
claimant at fault.

See, e.g., Liskiewicz v. Hameister, 905

N.Y.S.2d 505, 507 (N.Y. Sup. Ct. 2010); Okla. Gas & Elec. Co. v.
Dist. Court, 784 P.2d 61, 66 (Okla. 1990); Carter v. Chi. & Ill.
Midland Ry. Co., 487 N.E.2d 1267, 1269 (Ill. App. Ct. 1986);
Chinos Villas, Inc. v. Bermudez, 448 So. 2d 1179, 1180 (Fla.
Dist. Ct. App. 1984).

But each of those jurisdictions has

something that New Hampshire does not have: a contribution
statute that expressly permits contribution claims to be
asserted as counterclaims in the underlying action.

For

example, in New York, “CPLR 1403, which is entitled ‘How

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contribution is claimed,’ explicitly provides that a ‘cause of
action for contribution may be asserted in a separate action or
by cross-claim, counterclaim or third-party claim in a pending
action,” Liskiewicz, 905 N.Y.S.2d at 507.1
In New Hampshire, by contrast, (1) the contribution statute
states that “[n]o right of contribution exists against the
claimant at fault,” RSA 507:7-f, I; (2) the apportionment-ofdamages statute states that “[f]or purposes of contribution
under RSA 507:7-f and RSA 507:7-g, the court shall also
determine each defendant’s proportionate share of the
obligation,” RSA 507:7-e, III (emphasis added), and provides for
the reallocation of uncollectable amounts “among the other
defendants,” id. (emphasis added); and (3) the New Hampshire
Supreme Court has described RSA 507:7-f & 7-g as “involve[ing]
rights of contribution among defendants,” Rodgers v. Colby’s Ol’
Place, 148 N.H. 41, 43 (2002) (emphasis added).

Based upon a

consideration of “the overall statutory scheme,” DeBenedetto,
1

When Oklahoma Gas was decided, the Oklahoma statutes
provided that “[t]he right of contribution may be asserted
before judgment as a permissive counterclaim, crossclaim, or in
a third party action,” 784 P.2d at 66 n.24 (citing 12 O.S. Supp.
1988 § 2013(B)2). When Chinos Villas was decided, Florida’s
enactment of the Uniform Contribution Among Tortfeasors Act
“allow[ed] the defendant to file a permissive counterclaim for
contribution,” 448 So. 2d at 1180. When Carter was decided, the
Illinois statutes provided that “[a] cause of action for
contribution among joint tortfeasors may be asserted by a
separate action before or after payment, by counterclaim or by
third-party complaint in a pending action,” 487 N.E.2d at 1269.
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153 N.H. at 797 (pointing out that RSA 597:7-d through RSA
507:7-i were “enacted as . . . a comprehensive statutory
framework for apportionment of liability and contribution)
(citation omitted), the court is compelled to conclude that when
the legislature said that “[n]o right of contribution exists
against the claimant at fault,” it intended to foreclose claims
such as the one that Crecco seeks to assert in this case.
Because the claim Crecco seeks to assert is barred by RSA
507:7-f, I, it would be futile for Crecco to assert it.
Accordingly, Crecco’s motion for leave to assert a Rule 13
compulsory counterclaim against Hardie, document no. 13, is
denied.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
March 27, 2013
cc:

Sandra L. Cabrera, Esq.
R. Matthew Cairns, Esq.
Jonathan S. Frizzell, Esq.
Philip R. Waystack, Jr., Esq.

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