Hardie v. Crecco 13-cv-092-LM 3/27/14 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Karen Hardie, Christopher Hardie, Stephanie Hardie, Michael Hardie, and A.H., minor

v. Civil No. 13-CV-092-LM Opinion No.

Collin Crecco

O R D E R

Plaintiffs have sued in three counts, seeking to recover

for injuries they sustained in a collision involving an SUV

driven by Karen Hardie ("Hardie") and an automobile driven by

Collin Crecco. Before the court is Crecco's motion for leave to

assert a Rule 13 compulsory counterclaim for contribution

against Hardie. Plaintiffs object. For the reasons that

follow, Crecco's motion is denied.

The plaintiffs in this case include Hardie, the driver of

the SUV, plus her four passengers. In their complaint, they

claim that the collision between Hardie's SUV and Crecco's car

was caused by Crecco's negligence. In his answer, Crecco

asserts, as a defense, that " [p]laintiffs' injuries were caused

in whole or part by the negligence of Karen Hardie in the

operation of [her] vehicle." Answer (doc. no. 6) 4. By asserting that defense, Crecco has clearly brought into play New

Hampshire's comparative-fault statute, N.H. Rev. Stat. Ann.

("RSA") § 507:7-d. The question posed by the motion now before

the court is whether Greece's assertion that Hardie bears some

responsibility for causing the collision that resulted in her

passengers' injuries also implicates the statutes governing

contribution by joint tortfeasors, RSA 507:7-f & 7-g.

In his motion, Crecco seeks leave to file a compulsory

counterclaim, for contribution, against Hardie. See Fed. R.

Civ. P. 13(a). He argues that: (1) Rule 13(a) of the Federal

Rules of Civil Procedure ("Federal Rules"), which requires

certain claims to be brought as counterclaims, conflicts with

state law, which requires claims for contribution "to be

enforced only by a separate action brought for that purpose,"

RSA 507:7-f, I; (2) the conflict is procedural rather than

substantive; (3) procedural conflicts between federal and state

law are resolved in favor of applying the Federal Rules; and (4)

under Rule 1 3 (a), he is entitled to bring his contribution claim

as a counterclaim in this suit and, in fact, must do so, to

avoid waiving it. Plaintiffs disagree, contending that: (1)

Crecco does not have a compulsory counterclaim against them,

because his claim for contribution did not exist at the time he

served his answer; (2) the lack of a mature contribution claim

2 means that there is no conflict between federal and state law;

and (3) even if there were such a conflict, it would be

substantive rather than procedural, which would require the

application of state law which, in turn, would permit Crecco to

bring his contribution claim as a separate action.

The Federal Rule pertaining to compulsory counterclaims

provides, in pertinent part, that

[a] pleading must state as a counterclaim any claim that - at the time of its service - the pleader has against an opposing party if the claim:

(A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and

(B) does not require adding another party over whom the court cannot acquire jurisdiction.

Fed. R. Civ. P. 13(a)(1). "A counterclaim which is compulsory

but is not brought is thereafter barred." M.D. Moody & Sons,

Inc. v. Dockside Marine Contrs., Inc.,

(D.P.R. 2007) (quoting Baker v. Gold Seal Liquors, Inc.,

, 461 n.l (1974); citing Mesker Bros. Iron Co. v. Donata

Corp. , 401 F .2d 275, 279 (4th Cir. 1968)).

Here, it is undisputed that Crecco's proposed counterclaim

arises out of the occurrence that is the subject matter of

plaintiffs' claims against him and that his claim does not

require adding any other parties. The question is whether

3 Crecco had a claim for contribution against Hardie at the time

he served his answer to the complaint. He did not.

As a specific example of the general proposition that a

"party need not assert a counterclaim that has not matured at

the time the party serves a pleading," 6 Charles Alan Wright et

a l ., Federal Practice and Procedure § 1411, at 89 (2010),

commentators have suggested that "a claim for contribution

cannot be compulsory in the action whose judgment is the subject

of the contribution suit," id. at 94-95. In the cases upon

which Professor Wright and his co-authors rely for their more

specific rule regarding contribution claims, courts have turned

to the law establishing the right of contribution to determine

when, precisely, such a claim matures. See, e.g., Stahl v. Ohio

River C o .,

, 55 & n.5 (3d Cir. 1970) (holding that,

under Pennsylvania law, " [a] claim for contribution is not a

matured claim as contemplated under Rule 13 (e) because such [a]

claim is contingent upon a verdict and judgment establishing

liability of a party as a joint tortfeasor"). The holding in

Stahl has been criticized as outdated and insufficiently

pragmatic, see, e.g.. In re Oil Spill by the Amoco Cadiz,

(N.D. 111. 1979) (citations omitted), but

criticisms of Stahl do not undermine the propriety of looking to

the applicable law of contribution to determine when a

4 contribution claim matures. Thus, to determine whether Crecco's

claim has matured, such that it can (or must) be asserted as a

compulsory counterclaim, it is necessary to examine New

Hampshire's contribution statutes.

Under New Hampshire law, "a right of contribution exists

between or among 2 or more persons who are . . . liable for the

same injury, death or harm, whether or not judgment has been

recovered against all or any of them." RSA 507:7-f, I. Thus,

the fact that no judgment has been recovered against Crecco is

no bar to his claim for contribution.

Regarding the enforcement of contribution, the statute

provides, in pertinent part:

III. . . . If no judgment has been rendered [in the underlying action], the person bringing the action for contribution must have either (a) discharged by payment the common liability within the period of the statute of limitations applicable to the claimant's right of action against that person and commenced the action for payment within one year after payment, or (b) agreed while action was pending to discharge the common liability and, within one year after the agreement, have paid liability and commenced an action for contribution.

RSA 507:7-g. In other words, for a person to bring a claim for

contribution prior to judgment in an underlying suit, that

person must have suffered a loss by virtue of having discharged

the common liability. Thus, a pre-judgment claim for

5 contribution remains premature until the contribution claimant

has discharged the common liability.

Because Crecco has not discharged the common liability, he

does not appear to have a mature contribution claim, under New

Hampshire law, for the purpose of Rule 13(a)(1). That, in turn,

counsels against granting his motion to assert a counterclaim

for contribution. See Calderon-Serra v. Wilmington Trust Co.,

(1st Cir. 2013) (identifying futility as grounds

for denying motion to amend) (citations omitted); Classman v.

Computervision Corp.,

(1st Cir. 1996)

("Futility means that the complaint, as amended, would fail to

state a claim upon which relief could be granted.") (citations

omitted).

However, even without the maturity problem discussed above,

there is a more fundamental reason why Crecco's motion should be

denied: "No right of contribution exists against the claimant at

fault." RSA 507:7-f, I; see also 8 Richard B. McNamara, New

Hampshire Practice: Personal Injury, Tort and Insurance Practice

§ 12.04 (3d ed. 2003) ("No right of contribution exists . . .

against the plaintiff to the extent he [or she] was at fault.").

Hardie is a claimant/plaintiff in this case. The contribution

claim Crecco seeks to assert is premised upon Hardie's purported

fault. Given the New Hampshire Supreme Court's well-established

6 commitment to a plain-meaning approach to statutory

construction, see, e.g., Dichiara v. Sanborn Reg'1 Sch. Dist.,

N.H. ___ , ___,

(2013) (citing Kenison v.

Dubois,

(2005)), it would certainly appear

that Crecco's motion should be denied, on grounds of futility.

Before taking that step, however, the court directed Crecco to

"show cause why his motion for leave to assert a counterclaim

for contribution against Hardie should not be denied on grounds

that Hardie is a 'claimant at fault' under the statute." Notice

of Ruling (doc. no. 17), at 1. Crecco's briefing on that issue

is not persuasive.

Crecco begins by arguing that while Hardie is a claimant at

fault with respect to her own injuries, she "is not a statutory

'claimant at fault' vis-a-vis the claims by her family." Def.'s

Resp. (doc. no. 18) 2. There is no support for such a

distinction in the words of the statute. Moreover, that

distinction results in a construction of the disputed language

that is untenable for several reasons.

First, if "claimant at fault" means what Crecco saysit

does, then the statement that "[n]o right of contribution exists

against the claimant at fault," RSA 507:7-f, I, would actually

mean: no right of contribution exists against the claimant at

fault that would allow a defendant to recover from the claimant

7 for injuries suffered by the claimant that are attributable to

the claimant's own fault. But, the New Hampshire Supreme Court

has clearly directed courts construing statutes not to "consider

what the legislature might have said nor add words that it did

not see fit to include." Dichiara, ___ N.H. at ___,

(citing Dalton Hydro LLC v. Town of Dalton,

(2005)).

Second, Hardie's construction leads either to an absurd

result or to a redundancy. Both are disfavored by the New

Hampshire Supreme Court. See, e.g.. State v. N. of the Border

Tobacco, LLC,

(2011) (explaining that goals of

statutory construction include "seek[ing] . . to avoid an

absurd . . . result"); Garand v. Town of Exeter,

(2009) (quoting Town of Amherst v. Gilroy,

(2008)) ("[t]he legislature is not presumed to waste words or

enact redundant provisions and whenever possible, every word of

a statute should be given effect").

Here is the absurdity. The statute governing apportionment

of damages directs trial courts to instruct juries to award

damages "in accordance with the proportionate fault of each of

the parties." RSA 507:7-e, 1(a) . Thus, a properly instructed

jury could never award Hardie damages against Crecco in excess

of Crecco's share of fault for the collision. If there is no chance that Hardie could be "overpaid" for her own injuries,

then there would be nothing for Crecco to recover from her by

means of a contribution action. In other words, statutory

language barring only contribution claims based upon recoveries

for the claimant's injuries would be protection against an

eventuality that could never come to pass. Construing a statute

to provide protection against a non-existent risk would result

in an impermissible absurdity. Alternatively, because Crecco's

construction causes the disputed language to do nothing more

than mimic the protection already afforded by the comparative-

fault statute to defendants who have been sued by plaintiffs who

bear some fault for causing their own injuries, that

construction results in impermissible redundancy.

In sum, Crecco's attempt to construe the disputed language

is not persuasive. The statutory bar on contribution from

claimants at fault must, as a matter of logic and statutory

construction, do something more than preclude a defendant from

seeking contribution from a claimant at fault based upon the

claimant's fault in causing his or her own injury.

Crecco also argues that the disputed language should not be

read to preclude his contribution claim against Hardie because:

(1) the comparative-fault statute will reduce the amount of

damages he would have to pay Hardie for her injuries if she were

9 found to be partly at fault for the collision; and (2) the

contribution statute should be read to afford him a similar

reduction in the amount of damages he would have to pay the

passenger plaintiffs, should Hardie be found to be partly at

fault. As Crecco explains:

5. . . . [I]f a defendant cannot bring a contribution claim against the driver of a vehicle carrying innocent plaintiff passengers in a vehicle involved in an accident, and a jury awards $100 in damages and finds the defendant 60% at fault and the driver 40% at fault, the plaintiff passengers would be entitled to the entire award without reduction (because they were not at fault) and the defendant would have to pay the entire claim without being able to recoup the 40% allocable to the driver of the plaintiff passengers. In other words, under this court's reading of RSA 507:7-f, the defendant receives the benefit of a reduction in damages on the plaintiff's claim because she is a joint tortfeasor (i.e. a claimant at fault), but would have no ability to recoup from that same joint tortfeasor on the claim by the people in the plaintiff's car in the same accident.

6. Therefore, Karen Hardie must be a third party contribution defendant in this case so that when a jury allocates fault to her, she will be liable for her share to her family. Failure to allow such claim would be unduly prejudicial to Mr. Crecco.

Def.'s Resp. (doc. no. 18), at 3. Crecco's argument is

unavailing.

If the New Hampshire legislature had opted for pure several

liability when it moved away from joint and several liability,

then the prejudice resulting from denying Crecco a right of

contribution against Hardie might, somehow, qualify as "undue."

10 But, the

legislature rejected this pure several liability approach and instead passed a compromise measure adopting several liability only for those parties "less than 50 percent at fault." See RSA 507:7-e, I(b). The resulting legislation made New Hampshire a hybrid jurisdiction.

DeBenedetto v. CLP Consulting Eng'rs, Inc.,

(2006). Because New Hampshire is a hybrid jurisdiction, its

comparative-fault statute plainly countenances the seeming

"inequity" of denying a plaintiff who was only 51% at fault for

his injuries the right to recover from a defendant who was 49%

at fault. In light of that "inequity," which does not exist in

jurisdictions with pure several liability, there seems to be

little basis for arguing that it would run counter to the intent

of the legislature to allow plaintiffs without fault a full

recovery from defendants who are more than 50% at fault for

causing their injuries. That is, there is nothing inherently

unjust about a construction of the contribution statute that

results in something other than pure several liability.

Moreover, it is easy to see why it makes sense to bar

claims for contribution such as the one Hardie seeks to assert

in this case. Consider, for example, a case involving a two-car

accident in which one driver has two passengers, and that driver

sues the driver with no passengers. Further imagine that the

jury determines that: (1) the plaintiff driver and his

11 passengers each suffered $100,000 in damages; and (2) the

defendant driver was 60% at fault. If the defendant driver were

allowed a contribution counterclaim, then: (1) the plaintiff

driver would be awarded $60,000 from the defendant driver; (2)

the plaintiff passengers would be awarded $100,000 each; and (3)

the defendant driver would be entitled to recoup the plaintiff

driver's entire recovery, via contribution, to help him pay the

plaintiff passengers. The legislature could well have intended

to avoid such a result by denying defendants a claim for

contribution against plaintiffs at fault.

The court concludes by noting that there are several

jurisdictions that do allow counterclaims for contribution,

which necessarily implies a right to contribution from a

claimant at fault. See, e.g., Liskiewicz v. Hameister, 905

N .Y .S .2d 505, 507 (N.Y. Sup. C t . 2010); Okla. Gas & Elec. Co. v.

Dist. Court,

(Okla. 1990); Carter v. Chi. & 111.

Midland Ry. Co.,

(111. A p p . C t . 1986);

Chinos Villas, Inc. v. Bermudez,

(Fla.

Dist. C t . App. 1984). But each of those jurisdictions has

something that New Hampshire does not have: a contribution

statute that expressly permits contribution claims to be

asserted as counterclaims in the underlying action. For

example, in New York, "CPLR 1403, which is entitled 'How

12 contribution is claimed , ' explicitly provides that a 'cause of

action for contribution may be asserted in a separate action or

by cross-claim, counterclaim or third-party claim in a pending

action," Liskiewicz, 905 N.Y.S.2d at 507.1

In New Hampshire, by contrast, (1) the contribution statute

states that "[n]o right of contribution exists against the

claimant at fault," RSA 507:7-f, I; (2) the apportionment-of-

damages statute states that "[f]or purposes of contribution

under RSA 507:7-f and RSA 507:7-g, the court shall also

determine each defendant's proportionate share of the

obligation," RSA 507:7-e, III (emphasis added), and provides for

the reallocation of uncollectable amounts "among the other

defendants," id. (emphasis added); and (3) the New Hampshire

Supreme Court has described RSA 507:7-f & 7-g as "involve[ing]

rights of contribution among defendants," Rodgers v. Colby's 01'

Place,

(2002) (emphasis added). Based upon a

consideration of "the overall statutory scheme," DeBenedetto,

1 When Oklahoma Gas was decided, the Oklahoma statutes provided that "[t]he right of contribution may be asserted before judgment as a permissive counterclaim, crossclaim, or in a third party action,"

n.24 (citing 12 O.S. Supp. 1988 § 2013(B)2 ) . When Chinos Villas was decided, Florida's enactment of the Uniform Contribution Among Tortfeasors Act "allow[ed] the defendant to file a permissive counterclaim for contribution,"

. When Carter was decided, the Illinois statutes provided that " [a] cause of action for contribution among joint tortfeasors may be asserted by a separate action before or after payment, by counterclaim or by third-party complaint in a pending action,"

.

13 153 N.H. at 797 (pointing out that RSA 597:7-d through RSA

507:7-1 were "enacted as . . . a comprehensive statutory

framework for apportionment of liability and contribution)

(citation omitted), the court is compelled to conclude that when

the legislature said that "[n]o right of contribution exists

against the claimant at fault," it intended to foreclose claims

such as the one that Crecco seeks to assert in this case.

Because the claim Crecco seeks to assert is barred by RSA

507:7-f, I, it would be futile for Crecco to assert it.

Accordingly, Crecco's motion for leave to assert a Rule 13

compulsory counterclaim against Hardie, document no. 13, is

denied.

SO ORDERED.

Landya MpCafferty United Sfeates District Judge

March 27, 2013

cc: Sandra L. Cabrera, Esq. R. Matthew Cairns, Esq. Jonathan S. Frizzell, Esq. Philip R. Waystack, Jr., Esq.

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