KANSAS OFFICE of
  REVISOR of STATUTES

  

Home >> Statutes >> Back


Click to open printable format in new window.Printable Format
 | Next

60-214. Third-party practice. (a) When defending party may bring in a third party. (1) Timing of the summons and complaint. A defending party may, as a third-party plaintiff, serve a summons and petition on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court's leave if it files the third-party complaint more than 14 days after serving its original answer.

(2) Third-party defendant's claims and defenses. The person served with the summons and third-party petition, the "third-party defendant":

(A) Must assert any defenses against the third-party plaintiff's claim under K.S.A. 60-212, and amendments thereto;

(B) must assert any counterclaim against the third-party plaintiff under subsection (a) of K.S.A. 60-213, and amendments thereto, or any crossclaim against another third-party defendant under subsection (f) of K.S.A. 60-213, and amendments thereto, and may assert any counterclaim against the third-party plaintiff under subsection (b) of K.S.A. 60-213, and amendments thereto, or any crossclaims against another third-party defendant under subsection (g) of K.S.A. 60-213, and amendments thereto;

(C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim; and

(D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.

(3) Plaintiff's claims against a third-party defendant. The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The third-party defendant must then assert any defense under K.S.A. 60-212, and amendments thereto, and any counterclaim under subsection (a) of K.S.A. 60-213, and amendments thereto, or crossclaim under subsection (f) of K.S.A. 60-213, and amendments thereto, and may assert any counterclaim under subsection (b) of K.S.A. 60-213, and amendments thereto, or any crossclaim under subsection (g) of K.S.A. 60-213, and amendments thereto.

(4) Motion to strike, sever or try separately. Any party may move to strike the third-party claim, to sever it or to try it separately.

(5) Third-party defendant's claim against a nonparty. A third-party defendant may proceed under this section against a nonparty who is or may be liable to the third-party defendant for all or part of any claim against it.

(b) When a plaintiff may bring in a third-party. When a claim is asserted against a plaintiff, the plaintiff may bring in a third-party if this section would allow a defendant to do so.

(c) Execution by third-party plaintiff; limitation. Where a third-party defendant is liable to the plaintiff, or to anyone holding a similar position under subsections (a) and (b), on the claim on which a third-party plaintiff has been sued, execution by the third-party plaintiff on a judgment against such third-party defendant shall be permitted only to the extent that the third-party plaintiff has paid any judgment obtained against the third-party plaintiff by the obligee.

History: L. 1963, ch. 303, 60-214; amended by Supreme Court order dated July 17, 1969; L. 1997, ch. 173, § 7; L. 2010, ch. 135, § 81; L. 2011, ch. 48, § 7; July 1.

Cross References to Related Sections:

Pleadings allowed, see 60-207(a).

Joinder of claims, see 60-218(a).

Judgment on less than all claims, see 60-254(b).

Claims for relief, see 60-208(a).

Separate trials, see 60-242(b).

Law Review and Bar Journal References:

Commented upon prior to legislative enactment, George Templar, 31 J.B.A.K. 169 (1962).

"The Effect of the New Code on Title Examinations," J. B. McKay, 33 J.B.A.K. 173, 174 (1964).

1963-65 survey of civil practice, Earl B. Shurtz, 14 K.L.R. 171, 178 (1965).

Malpractice actions against physicians after original tort-feasor released, Donald Barry, 3 W.L.J. 75, 84 (1963).

"Interrogatories Restrained," Roger D. Stanton, 37 J.B.A.K. 7, 9 (1968).

"Caveat Venditor—Strict Products Liability Under the Uniform Commercial Code," Norman E. Beal, 16 K.L.R. 285, 296 (1968).

Survey of Kansas tort law (1965-1969), 18 K.L.R. 458, 474 (1970).

Survey of civil procedure, Spencer A. Gard, 17 K.L.R. 739, 743 (1969).

"Civil Procedure—Tortfeasor's Right to Contribution," Peggy Gatewood, 10 W.L.J. 135, 137, 138 (1970).

Survey of civil procedure, Elizabeth R. Herbert, 15 W.L.J. 315, 318 (1976).

"Brown and Miles: At Last, An End to Ambiguity in the Kansas Law of Comparative Negligence," Hal D. Meltzer, 27 K.L.R. 111, 115 (1978).

"K.S.A. 60-258a Revisited; Survey of Current Trends in the Kansas Law of Comparative Negligence," Craig C. Blumreich, 5 J.K.T.L.A. No. 6, 8, 10 (1982).

"A Review of the Kansas Comparative Fault Act," James D. Griffin and Chris Reitz, 63 J.K.B.A. No. 5, 26, 29, 30 (1994).

"Comparative Implied Indemnity, Third-Party Practice and Settlement Considerations in the Wake of DCI (Part I)," Mark D. Katz and Lawrence E. Nordling, K.D.J. Summer (2009).

CASE ANNOTATIONS

1. Purpose of subsection (a) considered; statute pertains to procedure only, creates no substantive rights; defendant has no right to bring in joint tortfeasor. Alseike v. Miller, 196 K. 547, 549, 550, 412 P.2d 1007.

2. Distinction made between suit seeking contribution between joint tortfeasors and one seeking indemnity from third-party defendants. Russell v. Community Hospital Association, Inc., 199 K. 251, 253, 254, 258, 429 P.2d 783.

3. Third party petition designed to seek indemnity from third party defendant because of primary liability erroneously dismissed. Denneler v. Aubel Ditching Service, Inc., 203 K. 117, 120, 121, 453 P.2d 88.

4. Trial court erred in sustaining motion to dismiss "cross petition" hereunder, since pleading was cross-claim filed pursuant to 60-213. Bartlett v. Heersche, 204 K. 392, 405, 406, 462 P.2d 763.

5. No substantive rights created by section, only permissive procedural device to determine third-party defendant's liability to original defendant for his liability to plaintiff; section does not authorize joining a joint tortfeasor not made a party by plaintiff. McKinney, Administrator v. Miller, 204 K. 436, 437, 438, 464 P.2d 276.

6. Subsection (c) cited; affidavit must accompany motion for continuance. State v. Watson, 204 K. 681, 466 P.2d 296.

7. Dismissal of declaratory judgment action to determine which of two insurers to defend negligence action upheld; no abuse of discretion. U.S. Fidelity and Guaranty Co. v. Continental Ins. Co., 216 K. 5, 7, 11, 531 P.2d 9.

8. Provisions of section reviewed in construing comparative negligence statute (60-258a). Brown v. Keill, 224 K. 195, 197, 580 P.2d 867.

9. Cited. Kennedy v. City of Sawyer, 4 K.A.2d 545, 547, 608 P.2d 1379. Reversed: 228 K. 439, 618 P.2d 788.

10. Court adopted form of comparative indemnity between joint tortfeasors. Kennedy v. City of Sawyer, 228 K. 439, 463, 618 P.2d 788.

11. Discussed and distinguished in action involving joinder of additional parties pursuant to 60-258a. Ellis v. Union Pacific R.R. Co., 231 K. 182, 187, 188, 195, 643 P.2d 158 (1982).

12. In action brought under Federal Employer's Liability Act right of contribution against third-party tortfeasor allowed by 60-258a. Gualden v. Burlington Northern, Inc., 232 K. 205, 219, 220, 654 P.2d 383 (1982).

13. Third-party defendants' motions for summary judgment properly sustained where defendant in principal litigation had entered into inspection and service guarantees with plaintiff. Haysville U.S.D. No. 261 v. GAF Corp., 233 K. 635, 637, 641, 666 P.2d 192 (1983).

14. Rules relating to third-party practice require certain identity of issues between main suit and third-party complaint. Jamison v. Schneider, 561 F.Supp. 1087, 1091 (1983).

15. Third-party petition did not allege any liability to petitioner for claim of original petitioner; petition is procedurally defective. North Cent. Kan. Prod. Credit Ass'n v. Hansen, 240 K. 671, 672, 732 P.2d 726 (1987).

16. Stating claim during pretrial conference as stating claim under statute examined. Uhock v. Sleitweiler, 13 K.A.2d 621, 622, 778 P.2d 359 (1989).

17. Defendant waived right to remove by filing a third-party complaint before notice of removal. Knudsen v. Samuels 715 F.Supp. 1505 (1989).

18. Degrees of negligence examined where plaintiffs served dishwashing liquid rather than similar-looking alcoholic beverage. Cott v. Peppermint Twist Mgt. Co., 253 K. 452, 486, 856 P.2d 906 (1993).

19. Whether entire action may be removed by sovereign third-party defendant examined. Kansas Public Emp. Ret. System v. Reimer and Koger, 4 F.3d 614, 620 (1993).

20. Noncontractual indemnity is a remedy that predates adoption of state constitution. KPERS v. Reimer and Assocs., Inc., 261 K. 17, 36, 927 P.2d 466 (1996).

21. Insured may not implead insurer for failure to settle while issue of insured's liability unresolved. Nungesser v. Bryant, 283 K. 550, 564, 153 P.3d 1277 (2007).

22. Parties' claim of subrogation arises only by reason of having honored their guaranties. Emprise Bank v. Rumisek, 42 K.A.2d 498, 215 P.3d 621 (2009).


 | Next

CURRENT SESSION
  A Summary of Special Sessions in Kansas
  Bill Brief for Senate Bill No. 1
  Bill Brief for House Bill No. 2001

LEGISLATIVE COORDINATING COUNCIL
  6/03/2024 Meeting Notice Agenda
  LCC Policies

REVISOR OF STATUTES
  Chapter 72 Statute Transfer List
  Kansas School Equity & Enhancement Act
  Gannon v. State
  Information for Special Session 2021
  General Info., Legal Analysis & Research
  2023 Amended & Repealed Statutes
  2022 Amended & Repealed Statutes
  2021 Amended & Repealed Statutes
  2020 Amended & repealed Statutes
  2019 Amended & Repealed Statutes

USEFUL LINKS
Session Laws

OTHER LEGISLATIVE SITES
Kansas Legislature
Administrative Services
Division of Post Audit
Research Department