663-17 Third-party practice; enforcement of right to contribution; unnamed defendants and third-party defendants. (a) A pleader may, as provided by the rules of court, bring in as a third-party defendant a person not a party to the action who is or may be liable to the pleader or to the person claiming against the pleader, for all or part of the claim asserted against the pleader in the action, whether or not liability for the claim is admitted by the pleader. A third-party defendant is bound by the adjudication of the third-party plaintiff's liability to the plaintiff as well as of the third-party defendant's own liability to the plaintiff or to the third-party plaintiff.

(b) A pleader may either:

(1) State as a cross-claim against a co-party any claim that the co-party is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant; or

(2) Move for judgment for contribution against any other joint judgment debtor, where in a single action a judgment has been entered against joint tortfeasors, one of whom has discharged the judgment by payment or has paid more than the joint tortfeasor's pro rata share thereof.

If relief can be obtained as provided in this subsection, no independent action shall be maintained to enforce the claim for contribution.

(c) As among joint tortfeasors who in a single action are adjudged to be such, section 663-12(d) applies only if the issue of proportionate fault is litigated between them by pleading in that action.

(d) A pleader may name as parties to a lawsuit under fictitious names defendants or third-party defendants whose names or whose responsibility for the acts complained of the pleader has been unable to ascertain with reasonable certainty. The pleading shall set forth a description of any unidentified defendant or third-party defendant and all actions already undertaken in a diligent and good faith effort to ascertain the true identity or responsibility of any unidentified defendant or third-party defendant. The pleader may later make known to the court the identity of a defendant or third-party defendant named as a party to the lawsuit under a fictitious name. For the purposes of statutes of limitation, later identified defendants or third-party defendants shall be considered to have been named as parties to the lawsuit on the date the pleading was filed first naming them under fictitious names. Parties shall exercise reasonable diligence in ascertaining the identity or responsibility of unnamed defendants or third-party defendants. The court may make any order that justice requires to protect any party from undue burden and expense or substantial prejudice in any further proceedings involving the later identified defendants or third-party defendants. [L 1941, c 24, 7; RL 1945, 10493; RL 1955, 246-16; HRS 663-17; am L 1972, c 144, 2(h); gen ch 1985; am L 1999, c 237, 2; am L 2016, c 55, 47]

 

Revision Note

 

In subsection (c), "the last paragraph of section 663-12" changed to "section 663-12(d)" pursuant to 23G-15.

 

Rules of Court

 

Third party practice, see HRCP rule 14; DCRCP rule 14. Counterclaims, cross-claims, see HRCP rule 13; DCRCP rule 13.

 

Law Journals and Reviews

 

The Requirement for Notice of Claim Against the City and County of Honolulu: Does it Apply to a Claim for Contribution under the Uniform Contribution Among Tortfeasors Act? 3 HBJ, no. 1, at 4 (1965).

 

Case Notes

 

Presentation of claim against county within six-month period provided by 46-72 not a condition precedent to maintaining third party action against county for contribution. 283 F. Supp. 854 (1968).

Right of contribution, when it becomes enforceable. 283 F. Supp. 854 (1968).

Cited, where a defendant filed a motion for summary judgment against plaintiff's claims and filed cross-claims against co-defendants, who filed an opposition to the motion, but did not file a cross-claim against the defendant, and plaintiff filed a statement of no position regarding the motion; the court found the right of the co-defendants to oppose the motion was sustainable under the Uniform Contribution Among Tortfeasors Act and HRCP rule 15(b). 415 F. Supp. 2d 1163 (2006).

Minor son of plaintiff may be subject to contribution to defendant as joint tortfeasor. 51 H. 74, 450 P.2d 998 (1969).

Parents are liable for torts to their minor children, and they may be joined as joint tortfeasors in action by children against third party. 51 H. 484, 462 P.2d 1007 (1969).

Plaintiff's wife may be impleaded by defendant, notwithstanding the interspousal tort immunity law. 68 H. 505, 720 P.2d 181 (1986).

Based on 663-12 and subsection (c), because joint tortfeasor landlord did not file a cross-claim against joint tortfeasor tenant, landlord did not have a right of contribution from tenant, and trial court properly acted within its discretion in dismissing tenant from the case. 93 H. 417, 5 P.3d 407 (2000).

Where bar owners failed to litigate the issue of proportionate fault with bar customer by pleading the customer into the case by filing a third-party complaint against the customer pursuant to 663-12, under subsection (c), the bar owners were barred from having "the relative degrees of fault of the joint tortfeasors considered in determining their pro rata shares"; thus, because the customer could not have been included on the special verdict form as a matter of law, the appeals court erred in concluding to the contrary. 118 H. 385, 191 P.3d 1062 (2008).

 

 

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