§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 coparty any claim that the coparty 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 paragraph 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, the last paragraph of section 663-12 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]



 



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 Joint Tortfeasors Act?  3 HBJ, May 1965, at 4.



 



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.



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



  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
15(b).  415 F. Supp. 2d 1163.



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



  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.



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



  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.



  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.