A counterclaim occurs when a defendant opposes the claim of the plaintiff and files a legal claim of his or her own against the plaintiff. A counterclaim is different than a mere defense, which seeks only to defeat the plaintiff’s lawsuit. It also seeks a form of relief. There are two types of counterclaims:
- Compulsory Counterclaims
- Permissive Counterclaims
According to the rules governing federal civil procedure, a defendant is required to make a counterclaim in an answer if the counterclaim arises from the same transaction or occurrence on which the plaintiff is suing. For example, a car accident between two drivers leads to a personal injury lawsuit, but the defendant asserts in a compulsory counterclaim that the plaintiff actually owed him damages for injuries. A compulsory counterclaim must be made in response to the plaintiff’s complaint and cannot be made later or in a separate lawsuit.
What is a Permissive Counterclaim?
The permissive counterclaim arises from an event unrelated to the matter on which the plaintiff’s suit is based. A defendant may raise issues in a counterclaim, but if he or she doesn’t, the right to sue for redress at a future point remains.
When to File a Counterclaim
Counterclaims are common in car accidents and arise when both drivers can make a reasonable argument that the accident was the fault of the other driver. It is usually filed as part of the defendant’s answer, which also denies plaintiff’s claims.
What is a Cross Claim?
A cross-claim is a claim by one party against a co-party. For example, a defendant may make claims against another defendant, or a plaintiff may make claims against another plaintiff. The cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. When the defendant or plaintiff files the cross-claim, the parties then also become a cross-claimant in the adversary proceeding.
What is a Third-Party Complaint?
A “Third Party Complaint” is filed by a defendant when it is believed that someone else is liable in whole or part to the plaintiff. For example, where Mary sues John for damages arising out of a car accident between John and Mary’s cars, if John’s friend Tim was driving John’s car, John may wish to bring Tim into the lawsuit. In order to bring a third party into the lawsuit, the defendant must file a Third Party Complaint and Summons.
How a Lawyer Can Help
If you have been the victim of a car accident and wish to file a lawsuit, you should seek advice from a lawyer who handles these types of cases. If you are a defendant in a lawsuit, it is a good idea to find out about the rules governing counterclaims. An experienced attorney can help guide you through this complicated process.
