___________

No. 94-3629

___________

Jay Hiatt, *

*

Appellant, *

*

v. *

*

Mazda Motor Corporation, *

formerly known as Toyo Kogyo *

Co. Ltd.; Mazda Motor, of *

America, Inc., *

*

Appellees. *

*

* Appeal from the United States

* District Court for the

Mazda Motor Corporation, * Eastern District of Arkansas.

formerly known as Toyo Kogyo *

Co. Ltd.; Mazda Motor, of *

America, Inc., *

*

Third Party Plaintiffs, *

*

v. *

*

Rodney D. Wadlow, *

*

Appellee, *

________________________________*

*

Product Liability Advisory *

Council, Inc., *

*

Amicus Curiae. *

___________

 Submitted: May 15, 1995

 Filed: January 30, 1996

___________

Before MAGILL, Circuit Judge, HENLEY, Senior Circuit Judge, and

LOKEN, Circuit Judge.

___________

HENLEY, Senior Circuit Judge.
 1

The Honorable Stephen M. Reasoner, Chief Judge, United States

District Court for the Eastern District of Arkansas.

-2-

Jay Hiatt filed this diversity of citizenship action to

recover damages for injuries he suffered as a passenger in an

automobile involved in a one-car accident on a rural road near

Morrilton, Arkansas. Hiatt named as defendants in the action the

manufacturer of the vehicle, Mazda Motor Corporation (Mazda Motor),

and the distributor, Mazda Motor, of America Inc. (Mazda America)

(Mazda Motor and Mazda America sometimes referred to herein

collectively as Mazda). 

Mazda then filed third-party claims for contribution against

Rodney Wadlow, the driver of the automobile, and Lygwna Daughtry,

the car's owner. The claim against Daughtry was dismissed before

trial and the jury returned a verdict in favor of Mazda and against

Hiatt. Judgment was entered on the verdict by the district court.1

Hiatt filed a timely notice of appeal from the judgment of the

district court under 28 U.S.C. § 1291. We affirm. 

The relevant facts are summarized briefly here. On July 4,

1991, Hiatt and Wadlow attended a party where they and others

consumed alcohol. Although the evidence showed that Wadlow

exhibited signs of intoxication, Lygwna Daughtry agreed to loan

Wadlow her 1983 Mazda 626 automobile and Hiatt and another man,

Joel Thomas, agreed to ride with Wadlow. 

Wadlow, the driver, and Thomas, the front seat passenger, did

not fasten their seat belts. Sometime after the drive began,

however, Hiatt became concerned about Wadlow's driving and Hiatt,

riding in the back seat of the car, fastened his seat belt. At

approximately 11:30 p.m., the car went off a winding road near

Morrilton, Arkansas and struck a creek bank. Neither Wadlow nor

Thomas was seriously injured. Hiatt, however, suffered severe

injuries to his lower abdomen.
-3-

Hiatt, of Arkansas, sued Mazda Motor and Mazda America, both

non-Arkansas corporations, in federal court alleging that his

abdominal injuries were caused by the defective design of the car's

rear seatbelt system. Mazda answered and, seeking contribution,

filed third-party claims against both Wadlow and Daughtry under

Federal Rule of Civil Procedure 14(a). Hiatt opposed the addition

of Wadlow and Daughtry to the suit on grounds that his claim was

solely one of defective design of the seatbelt system and that the

potential liability of Wadlow and Daughtry in causing the accident

was irrelevant. The district court overruled Hiatt's objections

and allowed Wadlow and Daughtry to be impleaded.

Prior to trial, Hiatt filed a motion in limine seeking to

exclude all evidence regarding the possible negligence of himself,

Wadlow or Daughtry in causing the accident. Hiatt contended that

his claim was only that -- once the accident occurred -- the

seatbelt system caused him serious injury because of its defective

design. The trial court overruled this motion. 

On the eve of trial, because of concern about the possible

application of the Arkansas comparative fault statute, Mazda moved

to dismiss its third-party claims against Wadlow and Daughtry.

Hiatt opposed the motion as to Wadlow on the ground that his fault,

if any, should be compared with the combined fault of defendant

Mazda and third-party defendant Wadlow. The district court

overruled the motion to dismiss as to Wadlow but dismissed the

third-party claim against Daughtry.

At no point did Hiatt assert any claims directly against

Wadlow or Daughtry. Although Rule 14(a) would have permitted Hiatt

to file such additional claims once the third-party defendants were

impleaded, the complete diversity required between plaintiff and

all defendants would have been destroyed because Wadlow and

Daughtry were both Arkansas residents. Hiatt did pursue a
-4-

separate action against Wadlow in Arkansas state court.

At trial, Mazda and Hiatt contested proposed jury instructions

on the issue of comparative fault. Mazda contended that under

Arkansas law plaintiff Hiatt's fault should be compared with

defendant Mazda's fault and Hiatt could recover only if his

comparative fault was less than that of Mazda's. Hiatt argued

that, once Wadlow was added as a third-party defendant, Hiatt was

entitled to recovery if his fault was less than the combined fault

of Mazda and Wadlow. The district court agreed with Mazda and

instructed the jury that it should compare Hiatt's fault only with

that of the two Mazda entities and not with that of the third-party

defendant Wadlow:

If the fault of Jay Hiatt is of less degree than the

fault of Mazda Motor Corporation and Mazda Motor of

America, then Jay Hiatt is entitled to recover any

damages which you may find he has sustained as a result

of the occurrence after you have reduced them in

proportion to the degree of his own fault. 

On the other hand, if Mazda Motor Corporation and Mazda

Motor of America were not at fault, or if the fault of

Jay Hiatt is equal to or greater in degree than the fault

of Mazda Motor Corporation and Mazda Motor of America,

then Jay Hiatt is not entitled to recover any damages.

Jury Instruction No. 32, Trial Transcript at 1550-51. Based on

this instruction as to the law, the jury found in favor of Mazda

and denied Hiatt recovery for his injuries.

Hiatt raised two issues in this appeal, but only one remains

for our decision here. First, Hiatt contended that the district

court erred by overruling his motion in limine to exclude evidence

that did not directly relate to his claim that the seatbelt system

was defectively designed. In his reply brief, Hiatt withdrew this

issue from his appeal. Second, Hiatt urged that the district court

erred as a matter of law in instructing the jury to compare Hiatt's

fault, if any, only with that of Mazda and not with that of Wadlow.
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Our discussion of that issue follows.

It is, of course, well-settled that in a suit based on

diversity of citizenship jurisdiction the federal courts apply

federal law as to matters of procedure but the substantive law of

the relevant state. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

Much ink has been spilled on the subtleties and ambiguities of the

substance versus procedure distinction, see, e.g., Ely, The

Irrepressible Myth of Erie, 87 Harv. L. Rev. 693 (1974), but the

general rule has remained firm in the jurisprudence of the federal

courts. See Walker v. Armco Steel Corp., 446 U.S. 740, 744-48

(1980). See generally, Boner, Erie v. Tompkins: A Study in

Judicial Precedent, 40 Tex. L. Rev. 619 (1962); Friendly, In Praise

of Erie -- And of the New Federal Common Law, 39 N.Y.U. L. Rev. 383

(1964). 

In the present case, there is no dispute among the parties

that the substantive law of Arkansas -- the forum state and the

state where the relevant events occurred -- governs Hiatt's

liability claim against Mazda. The parties do dispute, however,

the proper application of the Arkansas law of comparative fault,

where, as here, there is a third-party claim for contribution.

The Arkansas comparative fault statute adopts a modified

comparative fault approach, providing that:

(a) In all actions for damages for personal injuries or

wrongful death or injury to property in which recovery is

predicated upon fault, liability shall be determined by

comparing the fault chargeable to a claiming party with

the fault chargeable to the party or parties from whom

the claiming party seeks to recover damages.

(b)(1) If the fault chargeable to a party claiming

damages is of a lesser degree than the fault chargeable

to the party or parties from whom the claiming party

seeks to recover damages, then the claiming party is

entitled to recover the amount of his damages after they

have been diminished in proportion to the degree of his
-6-

own fault.

(2)If the fault chargeable to a party claiming damages is

equal to or greater in degree than any fault chargeable

to the party or parties from whom the claiming party

seeks to recover damages, then the claiming party is not

entitled to recover such damages.

(c) The word "fault" as used in this section includes any

act, omission, conduct, risk assumed, breach of warranty,

or breach of any legal duty which is a proximate cause of

any damages sustained by any party.

Ark. Code Ann. § 16-64-122 (1995) (emphasis added). Thus, in a

simple negligence case under Arkansas law, the relative fault of

the plaintiff is compared to the relative fault of the defendant

and the plaintiff may recover damages only if his fault is less

than the defendant's fault. See Riddell v. Little, 488 S.W.2d 34,

36 (Ark. 1972); Bonds v. Snapper Power Equipment Co., 935 F.2d 985,

987 (8th Cir. 1991).

 

In a case where there are multiple defendants, the Arkansas

statute provides that a plaintiff is allowed to recover if his

relative fault is less than the combined fault of all defendants.

Ark. Code Ann. § 16-64-122(b)(1). Moreover, the Arkansas Supreme

Court has held that the plaintiff may recover from an individual

defendant in a multiple defendant case even though the negligence

of the individual defendant is less than that of the plaintiff.

See, e.g., Riddell, 488 S.W.2d at 36. 

Because Hiatt sued only two defendants, Mazda Motor and Mazda

America, there would ordinarily be no doubt that the district court

was correct to instruct the jury to compare the fault of Hiatt with

the fault of the two Mazda entities. Hiatt contends, however, that

Mazda's impleader of Wadlow as third-party defendant changed the

applicable rule under Arkansas law and that the district court's

instruction was in error.
-7-

Hiatt rests his argument on his construction of the Arkansas

Supreme Court's holding in Larson Machine, Inc. v. Wallace, 600

S.W.2d 1 (Ark. 1980). In that case, Wallace, a farmer, was injured

while operating a fertilizer spreader. Wallace alleged that the

fertilizer spreader was defective and brought suit against Larson

Machine, the manufacturer of the spreader, and G & G Manufacturing,

the maker of one of the spreader's component parts. G & G then

filed a third-party claim against Oakley, the seller of the

spreader. Wallace amended his complaint to assert a claim against

Oakley, but not until after the statute of limitations for bringing

such claims had expired. Oakley moved to dismiss Wallace's claim

as untimely but the trial court denied Oakley's motion and the

Arkansas Supreme Court affirmed. 

Although Larson Machine was a negligence and product liability

case involving questions of comparative fault, the Arkansas Supreme

Court based its decision that the plaintiff's apparently untimely

claim against the third-party defendant could go forward on the

language of the Arkansas statute on third-party practice, which at

the time provided:

[After a third-party complaint is filed] [t]he plaintiff

shall amend his pleadings to assert against the thirdparty defendant any claim which the plaintiff might have

asserted against the third-party defendant had he been

joined originally as a defendant. The third-party

defendant is bound by the adjudication of . . . his own

liability to the plaintiff. . . .

Ark. Stat. Ann. § 34-1007 (1962) (emphasis added) (now codified as

amended at Ark. Code Ann. § 16-61-207(1)(1995)). 

The court reasoned that because the statute said the

"plaintiff shall amend his pleadings" and that "the third party

defendant is bound" the actual amendment of pleadings was a mere

technical formality and not necessary in order for the plaintiff

Wallace to obtain a judgment against the third-party defendant

Oakley. The court found that Wallace and Oakley were "at issue as

to their rights respecting the claim" from the time Oakley answered
-8-

G & G's third-party complaint and thus the statute of limitations

was satisfied although Wallace's actual amendment of his complaint

came after the statute had run. Larson Machine, 600 S.W.2d at 6.

Having been deemed -- by judicial interpretation of the third-party

practice act -- to have brought a claim against Oakley, Wallace's

fault could be compared to that of Oakley under the Arkansas

comparative fault statute. 

Hiatt maintains that under Larson Machine a plaintiff -- even

one in a federal rather than a state court -- need not have amended

his pleadings and asserted a claim against a third-party defendant

in order for the plaintiff and the third-party defendant to be "at

issue as to their rights respecting the claim." Larson Machine,

600 S.W.2d at 6. Thus, Hiatt further maintains, once Wadlow was

impleaded by Mazda, Wadlow became a "party . . . from whom [Hiatt

sought] to recover damages" for purposes of Arkansas' comparative

fault statute. Ark. Code Ann. § 16-64-122(a). Accordingly, argues

Hiatt, as a matter of substantive Arkansas law under Erie v.

Tompkins, the federal district court sitting in diversity should

have instructed the jury to compare Hiatt's fault not only with

Mazda's, but also with Wadlow's. 

As Mazda points out, however, it is not clear whether (or how)

the Arkansas Supreme Court would apply the Larson Machine rule to

the facts of the case at hand. There are a number of differences

between this case and Larson Machine which could lead to a

different result. For example, unlike the plaintiff in Larson

Machine, Hiatt never amended his complaint -- even in an untimely

fashion -- to seek damages against Wadlow. In fact, if Hiatt had

sought to add a claim against Wadlow complete diversity would have

been absent and the federal court would have had to dismiss the

suit for lack of jurisdiction. Moreover, by the time the present

case went to the jury, the Arkansas legislature had amended the

State's third-party practice statute to provide that a plaintiff

"may" rather than "shall" bring claims he has against a third-party
-9-

defendant. Ark. Code Ann. § 16-61-207. Thus, it is unclear

whether Larson Machine is still good law in Arkansas, even with

respect to a plaintiff's untimely claims against third-party

defendants.

The most important aspect of the Arkansas court's decision in

Larson Machine for the present case, however, is that the relevant

portion of the ruling rested not primarily on the language of the

comparative fault statute -- substantive state law -- but on the

court's interpretation of the language of the third-party practice

act -- state procedural law. On this point the opinion of the

court is quite clear. The plaintiff Wallace was held entitled to

a judgment against the third-party defendant Oakley because of the

specific terms of the third-party practice act:

Some courts have held that the original plaintiff has a

choice as to whether he will amend his pleadings to seek

relief against the third party defendant and that the

plaintiff cannot recover against a third party defendant

without having amended his pleadings to assert a cause of

action against that third party defendant. Most, if not

all of them, are based upon a rule or statute different

from ours in important respects. While our statute

permits the filing of a third party complaint against one

"who is or may be liable as a joint tortfeasor to him or

the plaintiff," it also provides that the plaintiff

"shall" amend his pleadings to assert any claim against

the third party defendant that he might have asserted had

he joined the third party defendant as a defendant in his

original complaint. Our statute specifically makes the

adjudication of the third party defendant's liability to

the plaintiff binding upon the third party defendant.

Our statute is different from those patterned after Rule

14 of the Federal Rules of Civil Procedure, under which

the plaintiff "may" amend his pleadings to assert a claim

against the third party defendant, and the effect of the

adjudication of the third party's liability is declared

by our statute. . . . 

When the third party complaint alleges a direct liability

of the third party defendant to the plaintiff on the

claim set out in the plaintiff's complaint, the third

party "shall" make his defenses to the complaint and no

amendment to the complaint is necessary or required, and
-10-

the parties are at issue as to their rights respecting

the claim without any amendment of the complaint by the

plaintiff.

Larson Machine, 600 S.W.2d at 6 (citations omitted). In Larson,

the Arkansas court also made clear that its earlier decision in

Chapman Chemical Co. v. Taylor, 222 S.W.2d 820 (Ark. 1949), also

rested on the third-party practice act. Larson Machine, 600 S.W.

2d at 6.

Only by interpreting the Arkansas third-party practice act to

mean that the plaintiff was deemed to have filed a timely claim

against the third-party defendant could the plaintiff's fault be

compared to that of the third-party defendant. Nothing in Larson

Machine, nor in any other Arkansas case to which we have been

referred, suggests that Arkansas follows a substantive comparative

fault rule that a plaintiff's degree of fault should always be

compared with the fault of other possible wrongdoers, even if

plaintiff has asserted no claim against those wrongdoers. Indeed,

given the plain language of the comparative fault statute -- that

the plaintiff's fault should be compared to that of the parties

from whom the plaintiff "seeks to recover damages" -- it is hard to

imagine how the legislature's words could be construed to reach

such a result. See Booth v. United States Industries, Inc., 583 F.

Supp. 1561, 1562 (W.D. Ark. 1984) ("[U]nder Arkansas law the degree

or percentage of fault of Mary Weston, who is not a party

defendant, is not to be considered. . . ."). 

Unlike Larson Machine, in this case a federal rule -- not

state law -- governed the third-party claim against Wadlow and the

rights of plaintiff Hiatt against Wadlow. Federal Rule of Civil

Procedure 14(a). Thus, we believe we need not resolve precisely

how significant the Arkansas court would find some of the other

distinctions between the cases. For, contrary to Hiatt's

contention, a federal district court in a diversity case is neither
-11-

required, nor indeed permitted, to apply state law to a matter

covered by a Federal Rule of Civil Procedure. 

The United States Supreme Court has consistently held, at

least since its decision in Hanna v. Plumer, 380 U.S. 460 (1965),

that if a matter is covered by a Federal Rule the federal courts

must apply the Rule without regard to whether the matter might

arguably be labeled substantive or procedural. The Supreme Court

reasoned in Hanna that,

[w]hen a situation is covered by one of the Federal

Rules, the question facing the court is a far cry from

the typical, relatively unguided Erie choice: the court

has been instructed to apply the Federal Rule, and can

refuse to do so only if the Advisory Committee, this

Court, and Congress erred in their prima facie judgment

that the Rule in question transgresses neither the terms

of the Enabling Act nor constitutional restrictions.

Hanna v. Plumer, 380 U.S. 460, 471 (1965). Thus, the full-blown

Erie analysis -- first determining whether a matter is substantive

or procedural and then applying state law on substantive matters --

does not apply if the matter in question is covered by a Federal

Rule of Civil Procedure.

In more recent cases, the Supreme Court has clarified that

federal courts should look beyond the terms of an applicable

Federal Rule only if there is some question whether "the scope of

the Federal Rule in fact is sufficiently broad to control the issue

before the Court." Walker v. Armco Steel Corp., 446 U.S. 740, 749-

50 (1980). The Court has stressed that federal courts must apply

a Federal Rule to a matter within its scope even where it differs

from a state rule and could lead to a different outcome.

Burlington No. R.R. Co. v. Woods, 480 U.S. 1, 6 (1987). This is

because,

[t]he cardinal purpose of Congress in authorizing the

development of a uniform and consistent system of rules
-12-

governing federal practice and procedure suggests that

Rules which incidentally affect litigants' substantive

rights do not violate this provision if reasonably

necessary to maintain the integrity of that system of

rules.

Burlington Northern, 480 U.S. at 5 (citations omitted). Moreover,

the Court has stated that when determining whether a Federal Rule

infringes on state substantive rights, the Federal Rules are

entitled to "presumptive validity" under both the Rules Enabling

Act and the Constitution. Burlington Northern, 480 U.S. at 6. 

In the present case, the issue is whether third-party

defendant Wadlow is a party from whom Hiatt "seeks to recover

damages," Ark. Stat. Ann. § 16-64-122, where Wadlow was impleaded

but Hiatt asserted no claims against him. There is no doubt that

this issue is within the scope of Federal Rule 14(a) which governs

third-party practice in federal courts. Rule 14(a) provides in

relevant part:

(a) When Defendant May Bring in Third Party. At any

time after commencement of the action a defending party,

as a third-party plaintiff, may cause a summons and

complaint to be served upon a person not a party to the

action who is or may be liable to the third-party

plaintiff for all or part of the plaintiff's claim

against the third-party plaintiff. . . . The plaintiff

may assert any claim against the third-party defendant

arising out of the transaction or occurrence that is the

subject matter of the plaintiff's claim against the

third-party plaintiff . . . . 

Fed. R. Civ. P. 14(a) (emphasis added). Under Federal Rule 14(a),

the plaintiff must affirmatively act to assert a claim he may have

against a third-party defendant. See, e.g., Monarch Industrial

Corp. v. American Motorists Ins. Co., 276 F. Supp. 972, 981

(S.D.N.Y. 1967) ("Plaintiff . . . could bring a direct action

against a third-party defendant only by an amendment to his

complaint."); Thompson v. Cranston, 2 F.R.D. 270, 271 (S.D.N.Y.
-13-

1942) ("Without amending the plaintiffs cannot recover against the

third-party defendants."). On the other hand, the corresponding

Arkansas statute as interpreted in Larson Machine provided that a

plaintiff could be deemed to have asserted a timely claim against

a third-party defendant even where the actual claim was untimely.

Ark. Stat. Ann. § 34-1007 (1962) (now codified as amended at Ark.

Code Ann. § 16-61-207(1)(1995)).

It is clear that for purposes of the analysis mandated by the

Supreme Court in the Hanna v. Plumer line of cases, Federal Rule 14

(a) "covers the point in dispute." Stewart Organization, Inc. v.

Ricoh Corp., 487 U.S. 22, 26 (1988). Cf. Brown v. E. W. Bliss Co.,

818 F.2d 1405, 1408-09 (8th Cir. 1987) (in diversity case trial

court should apply Federal Rule 15(c) rather than comparable

Missouri rule). Indeed, the state and federal rules are plainly

coextensive. Rule 14(a) and the Arkansas statute differ only in

that Rule 14(a) makes the filing of the plaintiff's claims against

a third-party defendant discretionary while the Arkansas statute

cited made such claims mandatory. 

In this situation, the district court was bound to follow the

federal rule unless it contravenes either the Rules Enabling Act or

the Constitution. Burlington Northern, 480 U.S. at 5. The

appellant, however, has made absolutely no argument that Rule 14

violates either the Act or the Constitution. In the absence of any

challenge, the Supreme Court has plainly directed that the Rule

must be treated as presumptively valid. Burlington Northern, 480

U.S. at 6. In any event, we believe that Rule 14(a) as applied is

both constitutional and within the scope of the Rules Enabling Act.

Cf. Burlington Northern, 480 U.S. at 8 (upholding Federal Rule of

Civil Procedure 38 as a valid exercise of Congress' authority);

Hanna v. Plumer, 380 U.S. at 472 ("[T]he constitutional provision

for a federal court system (augmented by the Necessary and Proper

Clause) carries with it congressional power to make rules governing

the practice and pleading in those courts, which in turn includes

a power to regulate matters which, though falling within the
-14-

uncertain area between substance and procedure, are rationally

capable of classification as either."); Brown, 818 F.2d at 1409

(upholding Federal Rule 15(c) under the Constitution and Rules

Enabling Act); 19 Wright, Miller & Cooper, Federal Practice and

Procedure § 4504, at 42 (1982) ("to date no Federal Rule has been

found to exceed either constitutional bounds or the authorization

of the Rules Enabling Act").

In addition, we note that the district court's application of

Rule 14 here satisfies the twin policy aims of the Erie rule:

"discouragement of forum-shopping" and "avoidance of inequitable

administration of the laws," especially unfair discrimination

against one of the parties. Hanna v. Plumer, 380 U.S. at 468.

Plaintiffs have no incentive to forum shop, because no later

addition of third-party claims by a defendant will change the rule

on allocation of fault. A plaintiff in a federal court knows that

in a diversity case based on Arkansas law his own fault will be

compared only with the fault of those defendants against whom the

plaintiff specifically asserts a claim. Moreover, as the Supreme

Court stated in refusing to exercise jurisdiction over a

plaintiff's claim against a non-diverse third-party defendant:

the nonfederal claim here was asserted by the plaintiff,

who voluntarily chose to bring suit upon a state-law

claim in a federal court. . . . A plaintiff cannot

complain if ancillary jurisdiction does not encompass all

of his possible claims in a case such as this one, since

it is he who has chosen the federal rather than the state

forum and must thus accept its limitations. "[T]he

efficiency plaintiff seeks so avidly is available without

question in the state courts."

Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 376 (1978)

(citations omitted). Thus, it does not impede the fair

administration of justice for the plaintiff to be limited to

recovery from those parties against whom he has asserted claims and

over whom he has an independent basis for subject matter

jurisdiction. 
-15-

In sum, we believe that there can be no doubt that the

procedure for adding third-party claims and the status in the

litigation of third-party defendants is governed by Federal Rule of

Civil Procedure 14(a) and not the Arkansas state law of third-party

practice. Because the language and purpose of Rule 14(a) clearly

cover the case at hand and the Rule is both constitutional and

within the scope of the Enabling Act, the federal trial court was

bound under the Hanna v. Plumer line of cases to apply Rule 14(a)

rather than the state law of third-party practice. Stewart

Organization, 487 U.S. at 27.

As the district court noted, under Rule 14(a) a plaintiff such

as Hiatt "may" assert a claim against a third-party defendant such

as Wadlow. Hiatt, however, did not have an independent basis for

subject matter jurisdiction over third-party defendants Wadlow or

Daughtry. If Hiatt had asserted claims against either, complete

diversity between the plaintiff and all defendants would have been

destroyed and Hiatt could not have maintained an action in federal

court. Hiatt chose to remain in federal court but not to assert

any claim against the third-party defendants there and instead sued

Wadlow separately in state court.

We believe that having chosen for his own strategic reasons to

sue in federal court and withhold his claims against Wadlow, Hiatt

cannot at the same time prevail on his argument that the relative

fault between himself and Wadlow was at issue in the case.

Contrary to Hiatt's contention, this was a case controlled by

Federal Rule 14(a) and not by the decision of the Arkansas Supreme

Court in Larson Machine. That decision rested on the State Supreme

Court's interpretation of a state rule of procedure that is not

applicable here. Because he did not add a claim against Wadlow

under Rule 14(a), Wadlow was not a "party from whom [Hiatt sought]

to recover damages" for purposes of the Arkansas comparative fault

statute. 
-16-

Thus, we find no error in the jury instruction on comparative

fault challenged by Hiatt. The only parties against whom Hiatt

sought to recover damages were Mazda Motor and Mazda America. The

district court was correct to rule that the jury should compare

Hiatt's fault, if any, only with that of Mazda Motor and Mazda

America. Hiatt may now regret, in retrospect, that his fault could

not be compared with that of Wadlow or other possible wrongdoers.

Hiatt's dissatisfaction, however, stems from the requirements of

federal diversity jurisdiction and not from any error by the

district court in instructing the jury. 

For the reasons stated herein we affirm the judgment of the

district court on the verdict for Mazda Motor and Mazda America.

In light of our disposition of Hiatt's appeal, the separate motion

to dismiss the appeal against Wadlow is denied as moot.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.