Third party vs Counterclaim

[sarcasticlemon]

I can’t understand why I got this question wrong in my bar exam prep. 
 

“Vernon is the defendant. He wants to assert a claim against the plaintiff, Victor, and against Sheryl, another individual who is not currently a party to the action. What is the most appropriate action for Vernon to take?”

 

I thought it was to issue a counter claim against Victor and A third party claim against Shreya. But apparently that’s wrong, and it should be a counterclaim against both. 
 

Why is that wrong? Just efficiency? It also didn’t say she was a defendant, so it seemed a third party claim is best? 

 

 

And then later, to add a defendant they say to use a third party claim not a counterclaim. I don’t get why🥲

[BlockedQuebecois]

A counterclaim says “I am being sued, and I would like to assert a (usually related) claim against others, including but not limited to the claimant”. 

A third party claim says “I am being sued, and if I lose I would like to say that someone else (also) caused the loss I am being accused of causing.”

Vernon wants to bring a claim against both Victor and Shreya. He doesn’t want to bring a claim against Victor and pass off any liability for Victor’s claim to Shreya. 

Edited May 22 by BlockedQuebecois

[sarcasticlemon]

@BlockedQuebecois so a third party claim is used by a defendant to split liability, but a counterclaim is for the defendant to basically become a plaintiff?

[loonie]

Cross-claims and third-party claims are used more to indemnify a party and for apportioning liability between parties potentially at fault from the damages caused by the same event in the main action (the main difference between the two being what you mentioned, that for a cross-claim the party is already a defendant to the main action, and for a third-party claim, it is a new party than one listed in the main action.

A counterclaim, on the other hand, is a separate claim. It doesn't have to arise from the same facts as what is being is litigated in the main action, although it usually does and both the claim in the main action and counterclaim are usually heard together in the same trial. An odd example, but one that comes to mind initially, is Judge Judy where, for instance, the plaintiff is a landlord claiming outstanding rent against a defendant, and the defendant is counter-claiming for something like entering the property without notice and causing damage to personal property. These claims are separate where, like you said, the plaintiff become a defendant to the counterclaim -- it does not have to do with contribution or indemnity per se like cross-claims and third-party claims. 

I think the reason you went wrong (and I don't blame you at all) is because you got a bit hung up on the third-party aspect and automatically thought it had to be a third-party claim for that reason. But, that wouldn't really make sense in this scenario. Vernon wants to bring a separate counter-claim against both parties, which can be solely against the plaintiff in the main action or jointly against the plaintiff and another party. 

Edited May 22 by loonie