Author Topic: "Is or may be liable": The wonderful world of third party practice  (Read 1956 times)

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Tom Rubillo

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If somebody else did something bad that landed you in the middle of a lawsuit for damages, you would not be defenseless.  There is a procedure to address the problem.  It is called "third party practice."  It allows the otherwise innocent defendant who has been dragged into court to say, in effect, "wait a minute.  That ain't my fault.  It is his (or hers) and s/he should have to pay, not me". 

Take, for example, a situation in which an elected or appointed public official oversteps the bounds of his or her lawful authority, talks trash, causes someone to be wrongfully arrested and, as a result defames or otherwise hurts someone in the process.  If the public body (say, a city or county in this example) ends up getting sued as a co-defendant along with the errant official who actually caused the harm, the public body can defend by saying (1) we didn't do anything wrong, (2) the wrongful act alleged in this case was a personal act of the individual defendant, not an official act, (3) what the other defendant did was outside of the scope of the lawful authority granted to that public official by the office he or she holds and (4)  if the jury decides that the public body has to pay damages, the jury should also rule that the errant individual defendant reimburse the otherwise innocent public body for both (a) what it has been ordered to pay the plaintiff and (b) the costs and attorney fees involved in defending itself.  This sort of defense has to be asserted by the public body when it answers the original complaint in the case and served on both the plaintiff and the other defendants.

Because of the obvious conflicting interests between the public body and the elected or appointed official, those defendants cannot be represented by the same attorney.  They each need their own legal counsel.  This procedure is not used a lot, but it is nonetheless available, particularly where the plaintiff sues the wrongdoer "individually and in his official capacity as...." 

Lawyers for the public body need to advise those in charge (a city or county council in this example) of this option so these otherwise innocent and uninvolved public officials can decide whether the public body (and taxpayers) they represent should seek indemnification or reimbursement in this way.

Just saying....


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Re: "Is or may be liable": The wonderful world of third party practice
« Reply #1 on: July 10, 2019, 02:31:39 PM »
I am concerned about how our current city council will handle the latest lawsuit. I believe you are pointing out that our current city council could and should step away from Jack Scovile and let him defend himself. I think you are correct. I hope the current Mayor will read this and take the lead. Jack Scovile should be the only person being sued for his actions. Not the city taxpayers.