 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
SouthTrust Bank v. Jones3/18/2005
reach-of-warranty and breach-of-contract claims. The trial court dismissed the third-party indemnity claim, ruling that it had been filed after the statutory limitations period had run. The Court of Civil Appeals reversed the dismissal, and the supreme court affirmed, quoting at length from Judge Murdock's opinion for the Court of Civil Appeals. The supreme court explained the triggering mechanism for an indemnity claim:
"This Court addressed the issue of when a cause of action for indemnification occurs so as to trigger the running of the statutory limitations period in American Commercial Barge Line Co. v. Roush, 793 So. 2d 726, 729-30 (Ala. 2000) (noting that in an action seeking indemnification the limitations period does not begin to run until liability has become fixed); see also Alabama Kraft Co. v. Southeast Alabama Gas Dist., 569 So. 2d 697, 700 (Ala. 1990) ('a right to indemnity does not arise ... until one acting as surety satisfies his principal's obligation, or until a master or principal pays damages arising from his servant's or agent's negligent or fraudulent acts')."
Stonebrook Development, 854 So. 2d at 591. In Stonebrook Development, the architects argued that the Court of Civil Appeals "should have applied the 'occurrence rule' adopted ... in Ex parte Panell, 756 So. 2d 862 (Ala. 1999), and that by not doing so, it ha incorrectly decided th issue." Id. The supreme court answered that argument as follows:
"We disagree. In Panell, the plaintiff sought damages for legal malpractice; the case ha nothing to do with the law of indemnity. On that ground alone, Panell is distinguishable."
Id.
The present case does have something "to do with the law of indemnity." Id. The Bank alleged claims under the ALSLA and sought indemnity for any liability that the Bank might have to Greene. In a situation very similar to that of the present case, an Ohio appellate court explained that a client's third-party complaint alleging legal malpractice "closely approximate an action for indemnification." Torok v. Taylor (No. 51611, Jan. 2, 1997)(Ohio Ct. App. 1987)(unreported decision).
In Torok, Timothy Taylor represented Elaine Torok in a post-divorce contempt action against Raymond Torok, her former husband -- an action that resulted in Mr. Torok's being incarcerated pursuant to an affidavit filed by Taylor. Mr. Torok later sued his former wife, asserting a claim of malicious prosecution based on what he contended was a fraudulent affidavit. Mrs. Torok filed a third-party complaint against Taylor, alleging a claim of legal malpractice. The trial court entered a judgment for Mrs. Torok, and Taylor appealed. On appeal, Taylor argued, among other things, that the third-party complaint against him was procedurally improper because Rule 14 of the Ohio Rules of Civil Procedure (which is substantially identical to Rule 14 of the Alabama Rules of Civil Procedure) "never allows for third party complaints based upon separate causes of action." The Ohio court's resolution of that question sheds light on how the Bank's malpractice claim should be analyzed in this case. The Ohio court explained:
"While a third-party complaint may not introduce a totally independent cause of action, 'the foundation of such a complaint must be that the third party is or may be liable to the defendant for all or part of the plaintiff's claim against the defendant.' State Farm v. Charlton (1974), 41 Ohio App. 2d 107.
"Civ. R. 14 is most commonly employed to join a third party who is liable to the defendant on a theory of contribution or indemnification. However the language of the rule is not so limited as to foreclose other types of claims. It is
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Alabama Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|