Let’s say that someone sues me for $10,000. I believe that a third party should indemnify me for that $10,000 so I add him as a third party defendant. He fails to reply to my summons and third party complaint, so I move for a default judgment against him.
So, again, let’s say that 5 months later I settle with the original Plaintiff for $3,500 (for whatever reason). I still want my default judgment. Can I get $10,000 or $3,500?
Legal advice is best suited to IMHO.
Colibri
General Questions Moderator
IANAL, but I’m pretty certain that, in no legal system known to me, can a defendant “add” another defendant.
Beyond that, I have no idea what you’re talking about - a three-party litigation, one pat of which is somehow contingent on another.
No, I DO NOT want to know if I am close to guessing this one.
Third pary defendants are not uncommon.
Cecil has been hired to paint a house, and in fulfillment of that task he is considering hiring your company to paint the attached garage. “But,” he says, “I don’t know if I should risk it. What if one of your workers gets hurt and sues me?”
“Not to worry,” you assure him. “By contract, I will indemnify you: I will guarantee, contractually, that if anything happens I will be responsible for your defense, and pay out any damages that might result from such a suit.”
Sure enough, one of your workers is hurt, and sues Cecil, for the obvious reason that you’re just you and he’s a multi-billionaire World’s Smartest Human. Cecil calls you and asks you to live up to your guarantee. You reply, “Sued, eh? Well, things are tough all over. My prayers are with you. Bye!”
What do you think should happen next?
I think the question was can one defendant unilaterally ADD another defendant to suit. I have never heard of such a thing, but IANAL. Surely he can sue after the fact, but how can he just add someone at the time?
Third-party them.
Here’s an example:
It’s pretty common.
That’s an interesting question. I would think that you would “get” whatever the judgment ordered, but I think that a judge wouldn’t order a specific amount since you don’t even know if you’re liable for anything at this point. What if you win the original suit? Then you’d have no damages to claim and your case against your third-party defendant would be dismissed. Probably, if the court orders anything (it could hold that part in abeyance until after the original suit was decided), it’d be that your third-party defendant would have to pay your liability (maybe with costs, if you included that in your complaint) and that if you are not found liable for anything, then the third-party defendant is not liable for anything either.
Also, default judgments are easy - collecting on them can be a lot more difficult.
[IAAL but IANYL (I don’t even know you) and besides anonymous message boards are notoriously dodgy places from which to obtain legal advice (see e.g. usedtobe) and this is in no way any sort of legal advice to you or anyone else. ]
You certainly can’t get $10,000, since you don’t have $10,000 in damages - when you got your default judgment, damages were purely speculative. What the court should do, in that case, is impose an indemnity (that is, the other party will be liable for whatever you are found to be liable for).
I’d say you get the $3,500, since that is what you would be entitled to if all of your claims are deemed to be true - though the Court would likely want to have a look at the settlement, to make sure it was legitimate (in theory, assuming you were able to collect on your third-party claim - a dubious assumption - you would have no risk in settling to any amount, other than court oversight).
In my state, after a default judgment, you usually have to have a hearing to prove damages.