For any sports lover, the month of March is all about basketball. An exciting basketball game has lots of rebounds, passes and even turnovers. These same plays can show up in a lawsuit.
The Rebound - Just like in basketball when a ball can bounce off the backboard and be caught by another player, the Rebound in a lawsuit can come in the form of a counterclaim. A counterclaim is when the plaintiff sues the defendant and then the defendant rebounds by suing the plaintiff right back. A counterclaim is often "compulsory", meaning it must be brought at the time the defendant answers the lawsuit, if the defendant's claim "arises out of the same transaction and occurrence". In other words, if your insured has a claim for injuries or damages arising out of the same accident that is the subject of the plaintiff's lawsuit, your insured must Rebound and assert his counterclaim at the time of the Answer.
The Pass - In basketball, players pass the ball to others on the same team. In a lawsuit, defendants may pass claims between them in the form of a cross-claim. If the plaintiff sues more than one defendant and the defendants are disputing fault and claiming they were hurt too, the defendants may sue each other for their own damages by making cross-claims (and even counterclaims) between them.
The Turnover - Sometimes in basketball, the ball is stolen leaving a player empty handed. This can happen in a lawsuit too, when a Non-Party at Fault is proven to be responsible for the plaintiff's damages. A defendant files a notice of non-party at fault to advise the plaintiff that the defendant will be pointing the finger at someone who is not in the lawsuit. If the plaintiff fails to amend his Complaint to include that new party in the suit, the plaintiff may find himself stripped of some or all of his anticipated recovery. It is important to note, however, that the burden is on the defendant to show that the non-party shares some of the fault. And, the shot clock buzzer will sound if you don't name a non-party at fault within 150 days of filing the Answer.
If you have a claim with lots of balls flying around and are wondering how to best dribble your way down the court, give me a call and let's talk it through. Jen 602-234-7805.
Jennifer Erickson recently joined Jennings Haug Cunningham where she continues to practice in the area of insurance defense and coverage. Jen's client focus is on the education of claims adjusters. Jen has designed dozens of training programs and is the founder and lead instructor of Claims University, which provides fun and interactive classes for adjusters at all levels. If you would like to discuss training needs for your organization, please contact Jen at 602-234-7805.