UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Everett R. Austin, II

Nancy Austin

v. Civil No. 09-cv-22-JM

Maryland Casualty Company

O R D E R

Defendant seeks leave to file a third party complaint. 

Plaintiff objects. For the reasons set forth below, the motion

is denied.

Background

Everett Austin, II, was injured in a motor vehicle accident

which he alleges was caused by the negligent operation of a motor

vehicle driven by Catherine Manthey. Ms. Manthey’s liability

policy is limited to $100,000. The policy has been tendered by

her carrier but the claim has not been settled, presumably

because defendant has not authorized plaintiff to accept it and

release Manthey. Plaintiffs notified defendant of their claim

for under-insured motorist benefits and have instituted this

action for those benefits.

The plaintiffs’ action is a contract action. Plaintiffs are

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New Hampshire residents. Defendant is incorporated in Maryland

with a principal place of business in Illinois. The requested

third-party defendant is a New Hampshire resident.

Discussion

Because the defendants did not serve their third-party

complaint within ten (10) days of their answer, they must obtain

leave of court to proceed. See Fed. R. Civ. P. 14(a). The

decision as to whether to allow impleader “is left to the

informed discretion of the district court, which should allow

impleader on any colorable claim of derivative liability that

will not unduly delay or otherwise prejudice the ongoing

proceedings.” Lehman v. Revolution Portfolio L.L.C., 166 F.3d

389, 393 (1st Cir. 1999) (citations omitted).

1. Contribution Count

N.H. RSA 507:7-e has no application to this case and

the count makes no sense. Defendant’s liability to plaintiff is

one hundred percent of the purported third party’s liability. 

There is no apportionment. The claim is futile and is not

allowed.

2. Subrogation Count

Clearly, the claim by defendant against the proposed

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third-party defendant is against “a nonparty who is or may be

liable to it for all . . . of the claim against it.” Fed. R. Civ.

P. 14(a). Put another way, it is clear that but for the

negligence of the proposed third-party defendant, defendant would

have no liability to plaintiff. New Hampshire statutes

specifically provide for the right of subrogation. N.H. RSA

164:15(IV). Further, “the fact that a third-party complaint may

be based on a different legal theory from the underlying case . .

. does not bar impleader.” 3 James Wm. Moore, et al., Moore’s

Federal Practice § 14.04(2) (3rd ed. 2008).

The central issues in both the plaintiffs’ claim and the

defendant’s third-party claim are: (1) the third-party’s

negligence; (2) any comparative negligence by plaintiff; and (3)

damages. Trying the claims together avoids the risk of

inconsistent verdicts and results in more efficient utilization of

judicial resources and the resources of the parties. Furthermore,

with the trial date nine (9) months away, the two-month delay in

filing the third-party claim is not an undue delay.

“Of course the court must be sensitive to the possibility of

prejudice to the original plaintiff . . . that may result from

permitting the assertion of the third-party claim.” Charles A.

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Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and

Procedure: Civil 2d § 1443 (1990). Plaintiff’s concern is that

the jury will know that the third-party defendant is under-insured

and will hold down any award of damages out of sympathy or bias

for her. Plaintiff’s claim is well founded under New Hampshire

law.

New Hampshire has long recognized that a party’s lack of

automobile liability insurance is, in effect, an impermissible

plea of poverty. The New Hampshire Supreme Court found that it

may be “used . . . to create sympathy for the uninsured

defendant.” Piechuck v. Magusiak, 82 N.H. 429, 431 (1926). 

Experienced trial lawyers and judges recognize the considerable

risk of such prejudicial sympathy and know that instructions to

the jury to try to avoid such sympathy prejudice would only call

greater attention to the third party’s situation.

New Hampshire is not alone in precluding pleas of poverty. 

In Goldstein v. Gontarz, 364 Mass. 800, 809 (1974), the court

ruled that a plea of poverty is “not only irrelevant but

prejudicial in that they might influence jurors toward giving

defendants compassionate but strictly unmerited relief from

personal liability.” See also King v. Starr, 43 Wash. 2d 115,

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119-121, 260 P.2d 351 (1953); Socony Vacuum Oil Co. v. Marvin, 313

Mich. 528, 538-540, 21 N.W. 2d. 841 (1946); Charles T. McCormick,

Evidence (2d ed.) § 201 at 481-82 (1972); John Alan Appleman,

Insurance Law and Practice, § 12838 (1962).

Defendant can proceed at the appropriate time by separate

suit. The potential prejudice to it is slight in comparison.

I find that the risk of prejudice to plaintiff is so great

that it outweighs all other factors. Consequently, the motion

(document no. 13) is denied.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 26, 2009

cc: Jeffrey B. Osburn, Esq.

 David S.V. Shirley, Esq.

 Andrew Ranks, Esq.

 Mark W. Shaughnessy, Esq.

 Andrew D. Dunn, Esq.

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