What a Crossclaim Is

Crossclaims Against Coparties

What a Crossclaim Is

A crossclaim is a claim by one party against a coparty. Rule 13(g) permits it when the claim connects to the case already before the court in one of three ways: it arises out of the transaction or occurrence that is the subject matter of the original action, it arises out of the transaction or occurrence that is the subject matter of a counterclaim, or it relates to property that is the subject matter of the original action.¹ A second sentence adds that the crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted against the crossclaimant.² The connection requirement ties the crossclaim to the dispute already in the case. The rest of this chapter takes up that requirement and the rule's other limits one at a time.

The label for a defendant's claim depends on whom the claim targets. The federal rules envision three types of claims that defendants may assert: Rule 13(a) counterclaims against opposing parties, Rule 14(a) third-party claims against nonparties, and Rule 13(g) crossclaims against coparties.³ A third-party complaint may be served only on someone who is not already a party, so a defendant with a claim against a person already in the case turns to Rule 13 instead.⁴

Courts identify a coparty by exclusion, not by asking who sits on which side of the caption. A coparty is any party who is not yet an opposing party, and opposing parties are those who oppose each other on a pleaded claim by one against the other and who can therefore resort to the counterclaim provision.⁵ Suppose Cassatt sues Renoir and Pissarro for damage from a fire. Renoir and Pissarro are both defendants, and neither has a pleaded claim against the other, so Renoir's claim against Pissarro arising out of the fire is a crossclaim.⁶ Renoir's claim against Cassatt, who sued him, runs between opposing parties and belongs to Rule 13's counterclaim provisions.⁷ The facts of the fire are the same in both versions. Only the target differs, and the target decides which rule applies.

The target also changes the consequences. The federal rule makers made counterclaims compulsory. They concluded that the advantage of litigating the same facts and issues between the same parties in a single action outweighed the common law principle that a claimant is master of his own claim.⁸ Crossclaims differ in two ways that later sections develop. The rule says a pleading "may" state one,⁹ and the claim must relate to the subject matter of the original action or its property. An unrelated claim against an opposing party, by contrast, may be asserted as a permissive counterclaim.¹⁰

Pleaders sometimes attach the wrong label. Counterclaims are often called crossclaims or affirmative defenses, and the error runs the other way too. Most modern pleading rules put little emphasis on labels, and courts generally ignore the nomenclature and look to the substance of the claim to decide its classification.¹¹

The rule's two sentences do different work. The first authorizes any claim against a coparty that satisfies one of the three connections, and it reaches claims that have nothing to do with indemnity. Renoir could use it to recover for his own loss from the fire, because that claim arises out of the same occurrence as the main action.¹² The second sentence confirms that the crossclaim "may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant."¹³ The words "may be" make a contingent claim proper, and the judgment is shaped to fit the contingency.¹⁴ A defendant who is only secondarily liable can therefore crossclaim against the primarily liable defendant for indemnity against whatever the secondarily liable defendant may have to pay.¹⁵ Rules 13(g) and 14(a) both permit this so that a defending party avoids the delay of a subsequent judgment. A contingent claim for contribution or indemnity is brought as part of the original action and need not wait until it matures and be filed as a separate claim.¹⁶

The device exists to settle the controversy among the parties in one proceeding. The policy behind crossclaims is to avoid multiple suits and to encourage resolution of the entire controversy among the parties with a minimum of procedural steps. Courts therefore construe the rule liberally to settle as many related claims as possible in a single action.¹⁷ A broad reading can complicate the case, and the answer to that risk is a separate trial of the claims. Refusing the crossclaim at the pleading stage is not the answer.¹⁸ Asserting a legal crossclaim in an equitable action does not waive the right to a jury trial on the legal claim.¹⁹